Articles on testimonial

My colleague Joe Hyde blogged last week about the Court of Appeals’ determination in State v. Tate, __ N.C. App. ___ (June 18, 2025), that the trial court did not err when it instructed the jury on a theory that was not alleged in the indictment. I’m returning to Tate this week to discuss another aspect of the Court’s holding, namely its determination that the defendant’s confrontation clause rights were not violated when an expert from the State Crime Lab testified to an opinion that was based in part on DNA test results generated by private third-party laboratory. This post will unpack the court’s analysis of that issue and will consider what it might mean for testimony by substitute analysts more generally.

Under the Crawford Confrontation Clause rule, testimonial statements by witnesses who aren’t subject to cross-examination at trial can’t be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. Smith, A Guide to Crawford and the Confrontation Clause, in NC Superior Court Judges Benchbook (UNC School of Government Aug. 2015). In the Davis case, the US Supreme Court set out a two-part rule for determining whether or not statements are testimonial for purposes of the Confrontation Clause:

This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.

In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis.

In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions.

The U.S. Supreme Court’s new Crawford confrontation clause rule has had significant impact in child victim prosecutions, largely because of problems with getting children to testify. One frequent Crawford question […]

Although the U.S. Supreme Court’s opinion in Michigan v. Bryant may have signaled a loosening of that Court’s interpretation of the key term “testimonial” as used in the Crawford confrontation […]

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In my first two posts, I explored the Bryant opinions. Today I’ll discuss what the case means for confrontation clause analysis going forward. 1.      Although Crawford is intact, the Court […]

In my last post, I looked at the majority opinion in Bryant. Today, I’ll discuss the other opinions, focusing on Scalia’s dissent. In my final post on this issue, I’ll […]