The Confrontation Clause of the Sixth Amendment to the U.S. Constitution limits the use of testimonial hearsay statements by an unavailable witness at a criminal trial, as does its state counterpart in Article I, Sec. 23 of the North Carolina Constitution. A hearsay statement is an out-of-court statement offered for its truth. A statement is testimonial if the primary purpose of the statement was to establish past facts for use at a later prosecution. Ohio v. Clark, 576 U.S. 237, 245 (2015). The Confrontation Clause does not protect against the admission of nontestimonial statements (although hearsay statements still must meet an exception or exemption). In a recent decision, the North Carolina Supreme Court analyzed a challenge to the admission of the defendant’s phone records offered by the State at trial. Overruling the Court of Appeals on the point, the North Carolina Supreme Court found that the phone records were nontestimonial as purely machine-generated data.” The case is a good reminder of the distinctions between testimonial and nontestimonial statements and may have implications for future confrontation issues. Read on for the details.
substitute analysts
Smith v. Arizona Comes to NC
As regular readers know, the U.S. Supreme Court decided Smith v. Arizona, 602 U.S. 779 (2024), this past June. The decision undercut the reasoning used by North Carolina courts to justify the practice of permitting substitute analysts to offer an independent opinion about the forensic report of another, nontestifying analyst (as discussed here and here). Until this week, no North Carolina court had applied Smith. The wait is now over. In State v. Clark, NCCOA-1133, ___ N.C. App. ___ (Dec. 3, 2024), the Court of Appeals delved into the impact of Smith on North Carolina law, ultimately granting the defendant a new trial for a Confrontation Clause violation. This post discusses the Clark decision and its implications for the future of substitute analysts in the state.
Substitute Analyst Testimony and Smith v. Arizona
I mentioned in a recent News Roundup that the U.S. Supreme Court granted review in Smith v. Arizona. The case tees up a question that has been lingering since at least 2012: Does the Confrontation Clause permit the admission of substitute forensic analyst testimony? This issue arises when a forensic report is prepared for use in a criminal case, but the testing analyst is not available for trial. Instead of admitting the report through the original analyst, the State calls a different expert—one not necessarily involved in the original testing—to offer an opinion about the accuracy of the report. North Carolina generally allows such testimony, but there is a split among jurisdictions on the issue. Smith has the potential to alter the legal landscape here and elsewhere regarding the use of substitute analyst testimony, so today’s post dives into the legal issues and potential impact of the case.
The NC Supreme Court’s Recent Substitute Analyst Cases
If you’re on my listserv, you know that the NC Supreme Court recently issued several confrontation clause decisions, all dealing with substitute analysts (if you’re not on my listserv, you can sign up here for my case summaries). I’ve previously written (here) about Williams v. Illinois, the US Supreme Court’s most recent confrontation decision on … Read more
Beyond Legislative Solutions to Melendez-Diaz
My recent paper (here) on the use of remote testimony in criminal cases involving forensic analysts was written in part because of the flood of interest in legislative solutions to Melendez-Diaz. That case held that forensic reports are testimonial and subject to the new Crawford confrontation clause analysis. One slam dunk solution to the Melendez-Diaz … Read more
California Tackles Substitute Analysts Post-Williams
In a paper here I analyze Williams v. Illinois, the U.S. Supreme Court’s latest confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale garnered five votes, it didn’t answer a lot of questions. Three companion cases recently decided by the California Supreme Court show how one court is … Read more
United States Supreme Court Grants Cert. in Substitute Analyst Case
In at least five prior posts on this blog (here, here, here, here, and here) I have written about the use of substitute analysts after Crawford and Melendez-Diaz. The basic issue is whether the confrontation clause is violated when an expert testifies to an opinion based on tests or analysis done by a non-testifying analyst. … Read more
New Trial Ordered in Unpublished Melendez-Diaz Autopsy Case
Along with the published cases released by the N.C. Court of Appeals on August 3, 2010, was an unpublished case of note. In State v. Davis, __ N.C. App. __ (Aug. 3, 2010), the court ordered a new trial after finding that the trial judge erred by admitting into evidence an autopsy report prepared by … Read more
North Carolina Supreme Court Enters Temporary Stays in Two Substitute Analyst Cases
Previously, Jeff and I posted about the post-Melendez-Diaz decisions by the N.C. Court of Appeals in the Brennan and Brewington substitute analyst cases (those posts are available here, here, and here). In Brennan, the court concluded that testimony of a substitute analyst identifying a substance as cocaine base violated the defendant’s confrontation clause rights. Similarly, … Read more
United States Supreme Court Denies Certiorari in Substitute Analyst Case
As I have discussed in a number of prior posts [editor’s note: the most recent of those posts is here], the North Carolina courts have been struggling with whether the Confrontation Clause, as interpreted the Court in Crawford v. Washington and Melendez-Diaz v. Massachusetts, allows for the use of substitute analysts. The petition for writ … Read more