Criminal Law Update & Review

Criminal Law Update & Review
NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Government, UNC-Chapel Hill Click Here For Sound

• Retroactivity of Blakely Crawford update
There are 3 topics that I would like to cover today First, on Friday, Bob Farb will do a presentation on Blakely—the US S. Ct’s blockbuster sentencing case. He has asked me to cover retroactivity of the Blakely decision and so I will begin with that. Second, the Education Committee asked me to do a Crawford update. The last time we met, I spent a good deal of time on Crawford. This time, I’m going to give you an update about how the law has developed since that case was decided in March of this year. And finally, as time permits, I will touch on other recent and cases from the US S.Ct. and the NC courts. •

• Retroactivity of Blakely So first, Blakely retroactivity.
Almost immediately after Blakely was decided, the MARs started to be filed. In these MARs, Ds whose convictions became final before Blakely was decided are seeking to have it applied retroactively to their cases. After I got about 1/6 dozen phone calls and s from judges & prosecutors on this topic in the first month after Blakely was decided, I set about preparing a paper on the topic. The paper is included in your packet as a handout. It’s a long paper because this is a complicated topic. My goal here today is to help you understand the broad brush structure of a retroactivity analysis. More detail and dozens and dozens of case citations can be found in the paper. •

• Retroactivity of Blakely
Blakely was an earthquake in the world of sentencing. It shook the foundations of structured sentencing here in NC, in every state and in the federal system, to its core. Again, Bob Farb will cover Blakely in more detail on Friday. I will make only a few quick points about the case that are necessary to our discussion today about the more limited issue of retroactivity. First, Blakely didn’t come completely out of the blue. •

Apprendi: Any fact other than prior conviction that increases punishment beyond statutory maximum must be proved to a jury beyond a reasonable doubt. Blakely applied a case called Apprendi, decided by the US S. Ct. in 2000. Apprendi held that any fact other than prior conviction that increases punishment beyond statutory maximum must be submitted to a jury & proved beyond a reasonable doubt. •

Lucas: To determine statutory maximum for purposes of Apprendi, assume aggravated sentence & PRL VI. Our state Supreme Court had occasion to apply Apprendi in the Lucas decision. In that case, the D challenged imposition of the 60-month firearm enhancement, when the facts supporting that enhancement had not been submitted to the jury but rather found by the judge. Applying Apprendi, Lucas held that to determine statutory maximum for purposes of Apprendi, assume an aggravated sentence & PRL VI. •

Blakely: Statutory maximum for purposes of Apprendi is the max. a judge can impose based on jury verdict or guilty plea. And then came Blakely. As to Lucas’s interpretation of what constituted the statutory maximum, Blakely said NO! Blakely said that the statutory maximum for purposes of Apprendi, is the max. a judge can impose based on jury verdict or guilty plea. •

• Retroactivity of Blakely Implications: Aggravating factors
PRL points not based on prior conviction Non-SSL misd. like DWI What re the implications of this holding? As Bob Farb will explain to you, they are broad. Blakely impacts felony aggravated sentencing—because of course the aggravating factors were found by a judge. It also impacts PRL calculation when the judge bases the PRL on things other than prior convictions. And it impacts DWI. But again, I am going to leave a detailed discussion about those implications for Bob. •

• Retroactivity of Blakely What cases are affected? (1) Future cases
(2) Pending cases (3) Old cases What I want to focus on are these questions—what cases are affected. Are future cases affected? Obviously Blakely governs future cases—it is the law of the land. And will remain so until overruled by later case. 2) What about pending cases? This question also is easily answered. Blakely governs all cases that were pending & not yet final at the time it was decided. Note: The rule re: finality is: A conviction is final when a judgment of conviction has been rendered, the availability of appeal exhausted, & the time for a cert. petition to the US S.Ct. has elapsed or a timely cert. petition has been finally denied. The big huge ugly question that a number of you have already confronted is whether Blakely applies retroactively. That is, to old cases—case that became final before Blakely was decided and that are now coming to you on MARs. •

• The Anti-Retroactivity Bar:
If a rule is both “new” and “procedural,” it does not apply retroactively unless it is a “watershed rule of criminal procedure.” The anti retroactivity bar for cases that were final at the time the decision was rendered stems from a US S.Ct. case called Teague. It is this: If a rule is both “new” and “procedural,” it does not apply retroactively unless it is a watershed rule of criminal procedure. That bears repeating . . . •

• Retroactivity Analysis Is it a new rule? Is it procedural?
Is it a watershed rule of criminal procedure? Three steps easily emerge from this rule: 1) Is it a new rule? 2) Is it substantive or procedural? 3) Is it a watershed rule of criminal procedure? We are now going to talk about these steps generally and then apply them to Blakely. •

Is it a “New” Rule? First, determine when D’s conviction became final. To determine whether a rule is new, it’s a two-step process You begin by identifying the date on which the D’s conviction became final. State convictions are final when the availability of direct appeal to the state courts has been exhausted & the time for filing a cert. petition has elapsed or a timely filed petition has been finally denied. •

Is it a “New” Rule? Then, look at the law as it then existed and ask: Was the new rule “dictated” by precedent? If not, it’s new. Was the unlawfulness of the conviction apparent to all reasonable jurists at the time? If not, it’s new. After determining when the case became final, you must look at the law as it existed at that time & ask whether the rule later announced was “dictated by then-existing law. If D’s conviction became final in 1980, look at the law in 1980 & ask—did that that law dictate the Court’s later holding. Another way to formulate the test is: whether the unlawfulness of D’s conviction was apparent to all reasonable jurists at the time. It’s not enough that earlier cases support the new rule; the then-existing precedent must have dictated the rule. If you are in 1980 looking at the then-existing law, what do you look at? Decisions of the US S.Ct.; 2) Decisions of the lower courts, both state & federal; 3) “Institutionalized state practice over a period of years,” which may be “strong evidence of the reasonableness of interpretations given existing precedent by state courts.” Also, when the rule at issue emerged in a prior case, look at whether all of the deciding Justices agree that it was required. [Discuss ex. of a 5/4 decision] When a case explicitly overrules an earlier holding, it clearly creates a new rule; the inquiry is more difficult when the decision extends the reasoning of prior cases. Any questions? We will see that this inquiry will be the critical one in a Blakely retroactivity analysis. •

 • Retroactivity Analysis Is it a new rule? Is it procedural?
Is it a watershed rule of criminal procedure?  The 2nd inquiry in a retroactivity analysis is whether the rule is substantive or procedural. This inquiry is required because anti-retroactivity doctrine applies only to new procedural rules. New substantive rules, Justice Scalia recently told us, “generally” apply retroactively •

• Is it substantive or procedural? Substantive rules:
narrow the scope of a criminal statute by interpreting its terms; or place particular conduct or persons covered by the statute beyond the State’s power to punish In the recent Schriro case—decided the same day as Blakely--Justice Scalia, indicated that substantive rules include those that “narrow the scope of a criminal statute by interpreting its terms” & “place particular conduct or persons covered by the statute beyond the State’s power to punish.” Put another way, substantive rules alter the range of conduct or the class of persons that the law punishes whereas procedural rules regulate only the manner of determining culpability. What does “narrowing the scope of a criminal statute by interpreting its terms mean?” Schriro cited Bousely v. United States as an example. In Bousely, the defendant pleaded guilty to “using” a firearm in violation of a federal statute. 5 years later, the US S.Ct. held that the term “use,” as employed in that statute requires the government to show active employment of the firearm and that mere possession would not suffice. In federal habeas corpus proceedings, D argued that the new case applied retroactively to his case and that his guilty plea was involuntary because he was misinformed about the elements of a 924(c)(1) offense. The Court rejected the govt’s argument that the anti-retroactivity doctrine barred D’s claim, stating that the doctrine applies only to procedural rules & was inapplicable to the case at issue in which this Court decided the meaning of a criminal statute enacted by Congress.” Constitutional determinations that place particular conduct or persons covered by the statute beyond the state’s power to punish would presumably include a decision such as Lawrence v. Texas, which held that criminalizing consensual adult sodomy was unconstitutional. •

 • Retroactivity Analysis Is it a new rule?
Is it substantive or procedural? Is it a watershed rule of criminal procedure? The third step in a retroactivity analysis is to determine whether the rule is a watershed rule of criminal procedure. If a rule is new and if its procedural, its subject to the anti-retroactivity bar UNLESS, it is found to be excepted from the bar b/c it is a: “watershed rules of criminal procedure.”  •

• Is it a watershed rule of criminal procedure? Various formulations
Gideon is the example But no rule ever held to fall within this exception Let’s be clear. This is a very narrow exception. The fact that “a new procedural rule is ‘fundamental’ in some abstract sense is not enough” to classify it within this exception. Nor is the fact that the rule corrects a structural error. In fact, the US S.Ct. has stated more than once that it is “unlikely” that many such rules have yet to emerge. And though the Court has repeatedly referred to Gideon v. Wainwright as falling w/in this exception, it has NEVER ONCE HELD a rule to be excepted on this ground. FYI—Gideon established an affirmative right to counsel in all criminal trials for serious offenses It has, however, on many occasions, declined to find that a rule falls within this exception. My paper provides the relevant case citations for you. •

• Retroactivity of Blakely Is it a new rule?
Is it substantive or procedural? Is it a watershed rule of criminal procedure? Now that we’ve done a broad brush of the three-step analysis, let’s apply it to Blakely. •

• Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 Apprendi Ring Blakely
The 1st step is: Is Blakely a new rule? Again, this is the clincher for Ds trying to argue the Blakely is retroactive. Why? B/c as we will see in a minute, there is strong authority supporting the conclusion that Blakely is procedural & not a watershed rule Recall that this prong of the test requires you to determine when a D’s conviction became final, the the time, & decide whether it dictated Blakely. Thus, this determination is different, depending on when the D’s conviction became final. To help with this analysis I set up a timeline. First on the timeline is Apprendi. In Apprendi, the S Ct. held that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Next is Ring. In Ring v. Arizona, Court applied that principle & concluded that b/c AZ law authorized the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury rather than to a judge. And finally, we have Blakely, holding that the term “statutory maximum” is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Apprendi Ring Blakely •

x • Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 Apprendi Ring
Let’s consider first the D whose conviction became final BEFORE Apprendi. For Ds whose convictions became final before Apprendi was decided, it is going to be an uphill battle to assert that before Apprendi, it was apparent to all reasonable jurists that guideline sentencing schemes were unconstitutional for the reasons asserted in Blakely. This assertion is supported by the vast majority of case law from around the country holding that Apprendi was a new rule. If Apprendi is a new rule, Blakely, which applied Apprendi, would have the same status with respect to pre-Apprendi cases. Apprendi Ring Blakely •

Next, consider D’s whose convictions became final after Apprendi but before Ring. Ds whose convictions became final after Apprendi may assert that rather than being a new rule, Blakely was mandated—dictated--by Apprendi. These Ds may concede that Apprendi was new but argue that Blakely was not. In fact, Justice O’Connor predicted this argument in her dissent in Blakely. However, in her dissenting opinion Justice O’Connor also noted that prior to Blakely, only 1 court had ever applied Apprendi to invalidate a determinate sentencing scheme. Meanwhile, she cited 16 decisions, including NC’s Lucas case, that had declined to do so. In the face of this case law, it is difficult to argue that reasonable jurists could not differ as to whether Apprendi compelled Blakely. In fact, to do so in NC would require a criminal defendant to convince the decisionmaker that the entire NC S.Ct. was unreasonable in concluding to the contrary when it decided Lucas. Apprendi Ring Blakely •

Now, what about D’s whose convictions became final after Ring? Ring invalidated AZ’s death penalty scheme b/c it allowed a judge not a jury to find the agg. factors required for imposition of the death penalty. The argument that all reasonable jurists would have agreed that Blakely was mandated by Ring is strong. But it’s only available to those Ds whose convictions became final after Ring. Why do I say it’s a strong argument? In Blakely, Justice Scalia cited Ring for the proposition that “[o]ur precedents make clear that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the D.” This language is strong support for the argument that Blakely was “dictated” by Ring. However, support for a contrary position may be found in: the differences between Ring and Blakely (e.g., that Ring dealt only with the allocation of decisionmaking authority between judge and jury and not with the additional issue, addressed in Blakely, of the standard of proof), the fractured nature of the Blakely decision, the institutionalized practice of structured sentencing in North Carolina, and the post-Ring case law from around the country—both federal and state—upholding determinate sentencing schemes even after Ring. Apprendi Ring Blakely •

• Is Blakely substantive or procedural?
Ring has been held to be procedural If Blakely is determined to be a new rule as to any of the classes of Ds discussed above, it operates retroactively unless it is determined to be either a substantive rule or a watershed rule of criminal procedure. In Schriro—decided the same day as Blakely--the Court rejected both arguments as to Ring. Recall that Ring invalidated AZ’s death penalty scheme. Rejecting the argument that Ring was a substantive rule, Justice Scalia explained: Ring altered the range of permissible methods for determining whether a D’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules Like Ring, Blakely “requir[es] that a jury rather than a judge find the essential facts bearing on punishment.” Now, Blakely also deals w/ the beyond a reasonable doubt standard of proof; this distinguishing factor, however, is unlikely to warrant a different holding on the substantive versus procedural issue. •

• Is Blakely a watershed rule of criminal procedure? Ring is not
Similarly, the Schriro Court rejected the notion that Ring was a watershed rule of criminal procedure. The only real difference between Blakely and Ring is that Blakely also dealt with the standard of proof. Is this enough to make the Blakely rule more like Gideon than the dozen or so other rules that the Court has already said are not watershed rules? I think it unlikely. That concludes . . . Armed with my paper and this discussion I hope you’ll feel prepared as you start to deal with those MARs, which WILL come on this issue. •

• Crawford Update Crawford of course was a Confrontation Clause case.
Since I last spoke to you about this case, I updated my paper on Crawford. The new & improved & much lengthened version is in your packets. The big change is expansion of the case survey, which begins on p. 8 I’ve tried to report to you all of the significant post-Crawford cases In this segment I want to highlight for you a few categories of post-Crawford cases. All of this material is in your handout, with case citations. •

• Crawford Update Overruled Roberts
“Testimonial” statements of non-testifying declarants cannot come in unless declarant is unavailable & there has been a prior opportunity to cross examine. As we’ve discussed, Crawford was a revolution in terms of Confrontation Clause analysis. As to testimonial evidence, Crawford overruled Roberts. Under Crawford’ “Testimonial” statements of non-testifying declarants cannot be admitted unless declarant is unavailable & there has been a prior opportunity to cross examine. We discussed how Crawford didn’t give us a comprehensive definition of the term “testimonial.” It told us that the following are testimonial: prior testimony, plea allocutions, & police interrogations It told us that the following are not: off-hand remarks, casual remarks, biz records, and statements in furtherance of a conspiracy It noted that other formulations of testimonial statements include things like: Materials that are like ex parte testimony or its functional equivalent such a pretrial statements that the declarant would reasonably expect to be used prosecutorially. Formalized statements as in affidavits, depos., etc Statements that were made under circ. which would lead an objective W reasonably to believe that the statement would be available for use at a later trial But it didn’t adopt those formulations; It left the lower courts w/little guidance & much litigation has ensued Let’s now turn to the post-Crawford cases in which courts have struggled to draw the testimonial/non-testimonial line. •

• Victim’s statements to the police Forrest: non-testimonial
First, let’s consider this category of statements: victim’s statements to the police. This area has been a hotbed of litigation. In fact, we have 3 cases from NC—all of these cases are in your handout First, Forrest the NC App. held that statements made by a V at a crime scene were non-testimonial. Facts: LEOs rescued V from D, her kidnapper. V was cut and bruised & bleeding profusely. V was shaking, crying, and very nervous after the incident, at which time she told a Detective what D did. Held: Statement was non-testimonial. The court analogized the statement to a 911 call, saying: a spontaneous statement made to police immediately after a rescue can be considered “part of the criminal incident itself, rather than as part of the prosecution that follows.” The court noted that the statement wasn’t initiated by the police & that the W was not providing a formal statement, deposition, or affidavit, was not aware that she was bearing witness, and was not aware that her utterances might impact further legal proceedings. Wynn dissented, arguing that the detective’s sole purpose was to obtain V’s statement for use in prosecution of defendant. When the statement was taken, the scene was secure, defendant was absent, and V was no longer in peril. V did not speak to Blalock to get assistance but because she knew that the police were there to gather evidence concerning the crime. This case is on appeal to NC S.Ct. •

Lewis: testimonial 5 months later, the N.C. Ct. App. again considered a victim’s statements to the police and this time found them to be testimonial. In State v. Lewis, D assaulted V. V was discovered in her apartment by a friend and neighbor, who called the police. When officer arrived, he took a statement from the V, who was then taken to the hospital. While there V IDed D from a photo line-up. Court held V’s statement to the officer at the scene & hospital were testimonial, noting that they implicated the D & were presented at trial in order to establish the case against him. •

Lewis: testimonial Bell: testimonial Recently, the NC S Ct. weighed in with the Bell case, holding that a statement by a victim to an officer was testimonial. State v. Bell: the state called an officer to testify about incident that was offered in support of the capital murder aggravating circumstance that D had committed a prior crime of violence. The officer testified that when he received a call about a robbery, he investigated the crime and tool a statement from V. Held: V’s statement was in response to structured police questioning regarding the details of the robbery. The statement was made to further the officer’s investigation of the crime and contributed to D’s arrest and conviction of CL robbery. Around the nation the courts are split. And not surprisingly, b/c you have a tension. On the one hand these are often spontaneous excited statements. On the other you have the fact that surely every V knows that the officer wants the info. so that he/she can catch & prosecute the perpetrator. •

• 911 calls Not yet decided in NC Around the nation . . .
NC hasn’t dealt with this whether 911 calls are testimonial or non-testimonial. But Forrest favorably cited a NY case holding these calls to be non-testimonial. A number of decisions in other states have dealt with 911 calls, with a majority holding them to be non-testimonial. The one reported decision holding that a 911 call is testimonial is a NY case that is at odds with another decision from the same court. In that case, the court supported its “testimonial” holding with the fact that during the call, the caller was a W who was not in danger and the operator asked questions about the perpetrator’s location, description, and direction of movement. The court found that testimonial. By contrast in the other NY 911 call case, the W was screaming into the phone for help. And that’s generally the case in many of these cases. •

• Excited Utterances Forrest? Around the nation . . .
Regardless of the speaker, some post-Crawford cases have found statements to be non-testimonial when they exhibit the hallmarks of an excited utterance. As one court put it: “Conceptually, excited utterance[s are] at the opposite end of the hearsay spectrum from testimonial hearsay [They] do not exhibit any of the hallmarks of a testimonial statement: one which is solemn, deliberate and anticipated to be used formally.” In fact, it may be this distinction that’s behind the 911 call holdings, where all but 1 court held such calls to be non-testimonial. And, think about State v. Forrest—discussed above in the context of V’s statements to LEO. The majority opinion described the victim’s statements as “spontaneous” statement to a police officer “immediately after a rescue”. Note that not all courts are going with this distinction but if you look at a hundred or so cases you do start to see a shift. •

• Statements of Child Victims/Child Witnesses To police officers
Statements by children is another difficult area. I think it might be helpful to think of these types of statements in 3 broad categories: statements to police officers, to social workers and to medical personnel Statements to Police Officers All of the post-Crawford cases that have analyzed children’s statements to police officers have found them to be testimonial. That interesting b/c with adults, I said that the courts are split on whether V’s statements to officers are testimonial. There might be a couple of explanations for this—although its hard to state general rules b/c the case law is still developing. 1st, there might be the excited utterance issue that we discussed—that there is a trend towards holding a statement to be non-testimonial when its spontaneous and excited. With child Vs there’s often a lag time before the officer gets involved. Maybe the child goes to the parent first and then to the hospital and only after that are the police involved. In some of the cases cited in my paper its days or even months after the event when the police get involved. Not only has the excitement of the crime died down but the officer knows, prior to the interview—from the parent, social worker, dr., etc—what the allegations are. As a result the officers interaction often starts not as response to a cry for help but as a structured interview—an interrogation, which Scalia said is testimonial. •

To social workers Statements to Social Workers and Child Protective Services Workers Based on existing case law, whether statements to these folks are going to be deemed testimonial has a lot to do with who is involved and what the responsibilities of the social worker. The case law suggests that if LEO or prosecutors are participating, its more likely to be testimonial. So too where the social worker is acting as an agent for the prosecution—eg interview is at request of prosecution. Where there are no LEOs and social worker is working alone, more likely to be non-testimonial. These are however, general rules and don’t account for all of the cases. We haven’t had a case on this in NC •

To social workers To medical personnel Statements to Medical Personnel There are not a lot of cases on this yet and they are all over the place. One case holds that statements re: pain & the general character of the assault are non-testimonial, even though Dr. is a member of the child abuse protection unit. Another case were statements were testimonial b/c Dr. was a member of child protection team. One case holds that statements IDing perpetrator were testimonial. Another holds statements IDing perpetrator aren’t. •

• Statements to Family & Friends
It’s unanimous! They’re non-testimonial Statements to family & friends We have a case on NC—Blackstock—court of appeals case. In Blackstock, the court held that a deceased victim’s statements to his wife and daughter were non-testimonial. The statements at issue described the robbery and the shooting that lead to the charges against the defendant. The court noted that the statements were made in personal conversations, when the victim’s physical condition was improving. The court concluded it was unlikely that the victim made the statements under a reasonable belief that they would later be used prosecutorially because at the time, the victim could have fully expected to testify at trial himself. Moreover, the court continued, fact that the victim made the statements to his wife and daughter mitigates against the possibility that he understood he was “bearing witness” against the defendant. Held to be non-testimonial. Many cases from around the country on this issue. They are all similar. •

• Forfeiture by Wrongdoing Cases involving act separate from the crime
Bootstrapping cases Crawford recognized a forfeiture by wrongdoing exception to the Confrontation Clause. That is—a defendant may be found to have forfeited his or her Confrontation Clause rights when he or she does something that causes the W’s unavailability. So, it’s not big surprise that Post-Crawford cases have found forfeiture by wrongdoing when D engaged in an affirmative act separate from the crime to be tried that results in the W’s unavailability at trial. One example is a NY case where forfeiture by wrongdoing was found where the D made threatening phone calls to W which caused her to refuse to testify at trial. Other cases have declined to find forfeiture when there was no conclusive link between the defendant’s actions and the witness’s unavailability. Notwithstanding the fact that it appears to be bootstrapping, a few courts have been willing to conclude that the wrongdoing alleged to support a forfeiture may be the very crime for which defendant is on trial. •

• Statements Offered for Purpose Other than Truth of Matter Asserted
Clark Around the nation . . . A number of jurisdictions have applied the confrontation exception recognized by Crawford for evidence offered for a purpose other than for the truth of the matter asserted. So we have cases finding no confrontation problem re: statements used by expert to form opinion, statements for impeachment purposes statement admitted to show officer’s state of mind Etc. •

• Availability for Cross-Examination Assertion of privilege
Forgetful witness Under Crawford, testimonial statements of non-testifying declarants can’t be admitted unless declarant is unavailable & there has been a prior opp. to cross-examine. Consistent with pre-Crawford case law, at least one post-Crawford case has held that invocation of the Fifth Amendment privilege against self-incrimination renders a W unavailable. Also consistent with pre-Crawford case law are the post-Crawford cases holding that lapses in a W’s memory do not render the W unavailable. •

• Availability for Cross-Examination Assertion of privilege
Forgetful witness Judge’s restrictions A 3rd issue that we’re seeing here is litigation re: whether a judge’s restrictions on cross-examination render a W unavailable. Two post-Crawford cases have dealt with allegations that a judge’s limitation on cross-examination rendered a W unavailable. In 1 9th Cir. case, the court held that a Ws’ assertion of her 5th Amend. privilege coupled with the trial judge’s restriction on cross examination made W unavailable. After the trial judge determined that W would invoke her 5th Amend. privilege re: whether her prior grand jury testimony was truthful, the judge cautioned counsel against asking question after question to which the witness would invoke the privilege. The court concluded that the trial judge’s restrictions on counsel’s ability to cross-examine W about her grand jury testimony prohibited D from probing W’s motivations behind the testimony. By contrast, a NY federal district court held that D’s right to confront Ws was not violated by the trial judge’s limitation of D’s cross-examination of a W during a hearing held outside the jury’s presence. The court concluded that the judge’s ruling sustaining the prosecutor’s objection merely prevented repetitive questioning and was within the judge’s discretion. •

• Unavailability Clark Bell
Under Crawford, testimonial statements of non-testifying declarants can’t be admitted unless declarant is unavailable & there has been a prior opp. to cross-examine. In State v. Clark, the NC App. indicated that a prosecutor’s statements about his attempts to find a non-testifying W were insufficient to support a finding of unavailability. State v. Bell, is a more recent case on point & it’s from the NC Supreme Court. In Bell, when the state informed the judge that the declarant was unavailable, stating: “The [declarant] was a Hispanic and has left, we tracked, pulled the record, he’s left the state and possibly the country.” The court held that this “evidence” did not establish a good faith effort to obtain the witness’s presence at trial. So there has to be a good faith effort and there has to be some evidence. •

Crawford Retroactivity
New rule? Procedural? Watershed? •

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