Episode 20: NC Criminal Debrief

[00:00:00.942] [UNKNOWN] Thank you.
[00:00:10.897] [SPEAKER_00] Welcome everybody to the North Carolina Criminal Debrief. This is a podcast dedicated to covering criminal law news in North Carolina and beyond. I'm your host, Phil Dixon, one of the faculty members here at the UNC Chapel Hill School of Government. I'm joined with my friend and studio wizard, as always, Paul Bonner on the ones and twos. Big thanks to Paul. Today, I'm going to start and maybe end with a legislative roundup. The legislature here in North Carolina recently recessed for the summer. Right at the end of the session, they passed a slew of new crimes and modifications to existing crimes. So we're going to go over those. Something that we talked about on this show a while back was our new misdemeanor crime of domestic violence. This is a crime that involves threatening violence or assaulting a person with whom the defendant has a special relationship. My colleague here, Brittany Brommel, did a blog post or two on the MCDB misdemeanor crime of domestic violence. I think widely it is accepted that that crime was created so that basically the federal ban on someone possessing firearms who's been convicted of a misdemeanor crime of domestic violence, so that that ban would apply because of some case law out of the Fourth Circuit. We've talked about all this on the show before. Our normal assault on female, assault with a deadly weapon, simple assault, those offenses, even when committed in a domestic violence context, actually don't trigger the federal ban. Because of how the federal law has been interpreted, there has to be intentional use of force or a threat of deadly force. And you can commit our state assault crimes generally with a lesser men's rage, just sort of by negligence or violence. recklessness, and that's not enough. So we've created a new crime, as we've discussed, the misdemeanor crime of domestic violence that says, you know, when you're in this relationship and you commit one of these acts, you are convicted of the crime of misdemeanor crime of domestic violence. That crime was written in a way to fall within the ambit of that federal prohibition on a person convicted of misdemeanor crime of domestic violence. we've had an open question for some time, as Brittany wrote about in her blog post discussing this crime when it was passed. I think it was 2024, maybe late 2023. Big question about does this subsume a related assault? If I... say, beat up on my romantic partner, is that assault and misdemeanor crime and domestic violence? Or is it just misdemeanor crime and domestic violence? I thought that that would be a big bargaining chip for folks when they are facing this charge. Defendants and certainly defense counsel should be aware, hey, if you plead to the assault on female or the simple assault or the communicating threats, that doesn't trigger the federal ban. Even though it sort of still looks like a misdemeanor crime of domestic violence, it doesn't count. So from defense counsel's perspective, you might want to plead to the regular assault quorum and get the misdemeanor crime of domestic violence charge dismissed. Conversely, if you're a prosecutor, you might really want to see the person get the misdemeanor crime of domestic violence and be willing to forego underlying other misdemeanors related to the event. We've gotten this question a lot in the past year or so. Do these merge? When we talked about it on the show before, I think the traditional way of looking at this would say you look at Blockburger and the same elements test. They have different elements. The elements of assault on female or communicating threats or simple assault are not the same. as the elements of misdemeanor crime and domestic violence, although there certainly is some overlap there, particularly in the context of these assault crimes. So I knew some trial courts in the state, even when the prosecutor is bringing both charges, say assault on a female and the MCDV for the same incident, Some judges would only convict on one. I think many more judges were willing to convict on both, but would arrest judgment on the underlying assault charge, only impose one penalty. My suspicion was that a person would be able to be convicted of both things, two crimes effectively, say assault on female and MCDB, based on the same event. Our assault law 1433 has been amended to say any crime falling under this assault statute does not count as a lesser included offense of misdemeanor crime and domestic violence. So they didn't actually amend the MCDB. They amended the regular assault statute to say. This is separate. These are separate things. And I think that probably passes double jeopardy and constitutional muster. It purports to resolve a question that had been lingering out there. Can we get two of these? and the legislature has said yes. And generally in the context of double jeopardy analyses, when the legislature speaks and says it is our desire to impose separate punishments for this same act, they can do that. So my guess is this flies. And as of December 1st, that will be the rule. It is definitely not no assault crime, at least is a lesser included. Perhaps there's still an argument when we get to the threats, maybe communicating threats. They didn't touch that. And threatening use of force is one way you can commit a misdemeanor crime of domestic violence. We'll see. Relatedly, the legislature created a new habitual domestic violence offense. And here we're talking a person who has had two or more convictions for misdemeanor crime of domestic violence or any substantially similar crimes from other jurisdictions. It does cap it to within the last 15 years, those prior convictions. And it would also apply to somebody with one prior conviction of an MCDV or anything similar. and one assault on a person with whom the defendant has that domestic relationship. So like we see with habitual felon, like we see with habitual misdemeanor assault, we now have a habitual domestic violence offense. This will be punished as a class H felony the first time someone attains the status of a habitual domestic violence offender. Thereafter, it will be one class higher, one level higher for any, whatever the underlying substantive offenses are. So and again, this kicks in December 1st. Seems fairly straightforward to me, but it'll be interesting to see that getting rolled out and adopted. I think importantly, folks may have heard about this, but many practitioners are aware in North Carolina, your sentences run concurrent by default. If you are sentenced for two, three, four, five crimes, if the judge doesn't specify, even if they impose, say, 12 to 20 months in each case, If the judgment form is not marked consecutive or concurrent or the court doesn't say on the record consecutive sentences, you know, these are to be run back to back. These would be box card. They operate concurrently by default. So silence is concurrent sentencing in effect. No more as of December 1st. This rule comes to us from 15A, 1354A. There was language in there that says, basically, if the judge doesn't specify, the sentences run concurrent. They struck that language out of the statute. Now it says that the court must decide between a concurrent sentence or consecutive sentences and must make findings in support of that determination. That's as much guidance as the trial judges are given here. This is a very common thing where the court doesn't specify. And normally, DAC, the Department of Adult Correction, when they get that judgment, they say, well, under 1354, these must run concurrent. They run them concurrent. And same if you're already serving a sentence. Unless the law requires that a subsequent sentence be run consecutive, Anything imposed just starts automatically running concurrently. Now, if the judgment is silent, the court doesn't say one way or another, I think DAC's only choice is going to be to send it back to the trial court and say, hey, you need to do a resentencing. You've got to make a choice. Are these sentences to run consecutive to one another or are they to run concurrent with one another? And the requirement of written findings also, I'm not sure the written findings, I think it says just findings, but that strikes me as an interesting provision as well. I'm not sure if that's meant to just create a record or if the feeling is the judges have to who have to put down a reason, maybe less inclined to show leniency or. Because I wonder, you know, many times these kinds of things are negotiated as a part of the plea bargain. Would it be a sufficient finding to just say per the party's agreement, as per the plea bargain contemplates? To me, without more guidance, I think that probably would fly. But it'll be, again, interesting to see how different judges handle that. And I think defenders, it may be incumbent on you when you're aware of this change. This kicks in December 1st. You may want to remind the judge that you need to specifically ask for concurrent sentences if that's what you're seeking and remind the judge that they do have to make a choice and to make some kind of finding necessary. justifying it. Of course, the regular old cases for mitigation would likely be enough. Hey, this person has a strong support system in the community. They support their family. They've showed some efforts at rehabilitation. They were young and reckless at the time, whatever it is. Those same things too, I think, would support a finding for a concurrent sentence, but there's got to be something in there now. One of the changes sought by the Conference of DAs this legislative season was changes to the MAR statute or our motions for appropriate relief. These are the mechanisms by which a defendant in North Carolina seeks post-conviction relief or collateral review. So after the direct appeal process has been completed, the person still may have a claim to bring before the trial court to say there was some fundamental error. something was wrong. This is where a lot of ineffective assistance of counsel claims get raised. And the conference of DAs was wanting to put a cap on how long defendants have to file an MAR in a non-capital case. There is no current cap. It just sort of says, if you meet some of these grounds, you can file a motion for relief at any time. You normally only get one bite at that apple, although there are exceptions for getting around the procedural bar, which is, you filed one of these, you've been denied. When I first heard about this proposed change to the MAR statutes, I thought they were seeking something like the cap at like six or 12 months. But the legislature ultimately settled on seven years. So for non-capital MARs, you've got to file within seven years from the end of your case. broadly speaking, an end of your case means you didn't file an appeal and the time for appeal has passed, or the appellate mandate has issued and the time for you to seek review at the Supreme Court in the United States has passed, or the US Supreme Court denied cert, or the US Supreme Court accepted your case for cert but then left your conviction intact. At that point, your seven-year clock starts ticking for how long you have to file an MAR. And again, that's a much longer time period than was originally sought. There are some exceptions to that seven-year cap. The same things that would normally get you around the procedural bar are also now reasons to permit a defendant to file beyond the seven years. Those are if there is now new evidence that was not previously available through the exercise of due diligence at the time bearing on the defendant's guilt or innocence that will get you beyond the seven years. If there are good grounds for excusing the default and the defendant can show actual prejudice arising from their claim, that gets you there. And sort of a catch-all of failure to consider the defendant's claim would result in a fundamental miscarriage of justice. They took two grounds that you were able to formally seek relief for and just accepted them from this seven-year cap altogether. Those are when the defendant has fully served his or her sentence and is still in confinement. That claim can be raised at any time regardless of the seven years. And likewise, if there is a change in the law that requires retroactive application, that claim too can be brought at any time. The good grounds to excuse with actual prejudice, fundamental miscarriage of justice, those are the same things that get you around the procedural bar to file a second or subsequent MAR following denial of your first one. And the MAR statute has long said you can have an MAR and get relief on anything that the parties agree to. And that term is subject to some debate. Does it need to be a good reason? Many judges, I think, expect the parties to have some valid claim to which they're agreeing, not just, hey, we agree to let this person out of jail. But you kind of do occasionally see that where somebody got 85 years under fair sentencing as a young, young person. And the parties have basically said, we're just ready to let this person go home. We have a similar provision in these amendments where you can always get around the seven-year cap with the consent of the district attorney. There's these exceptions, then there is just the DA agrees to let you file it past the seven years. Note, though, that this is not gonna be a problem for folks anytime soon. These new provisions, one, only kick in December 1st, and they only apply to verdicts entered on or after December 1st, 2025. So folks convicted after December 1st of this year, moving forward, they have seven years from the time their case is final. So the earliest anyone is going to get this is going to be sometime around December 31st. 2032. But just something to have on your radar and think about. Moving on, there is a new mitigating factor for DWI sentencing. If a person puts an interlock on their car voluntarily for at least six months, that can count as an extra mitigating factor in a DWI sentencing. There can't have been any death or serious injury that occurred during the DWI. You need a valid license at the time, or your license could have been expired for less than one year. Your BAC has to have been under .15, and the interlock must be installed within 45 days of the offense. I'm not sure what I think about this. Most folks are level three through five sort of by default anyways. Many judges will accept the guilty plea itself as a mitigating factor, sort of standard mitigation factors are doing some community service, getting an alcohol assessment and completing the recommended treatment. Many times you can come up with anything that mitigates the offense as a non-statutory mitigating factor. And the interlock typically only kicks in for people with a repeat conviction or with a high blow. And if you have those things here, I think it's unlikely that this is going to help you a lot. But it's another option for folks out there. I'm not sure what the impetus behind this was, but we have seen expanded interlock options over the last few years. Everything I just went over there was from Session Law 2025-70, also known as Senate Bill 429. So if you want to take a closer look at those things, you can just pull up the Session Law 2025-70. Oh, and sticking with this same session bill, one other new crime I wanted to talk about. There is a new offense of exposing a child to controlled substances. This will be codified at Chapter 14, Section 318.7. This includes all controlled substances, any analogs, narcotics, opiates, opiums, and importantly, marijuana. Any child, a child is defined as under 16 years old, and it will be effective December 1st, a Class H felony to knowingly or intentionally or with reckless disregard expose a child to a controlled substance. If the child is exposed to a controlled substance and actually ingests the controlled substance, that is a Class E offense. It is a Class D offense if the child ingests the controlled substance and is seriously injured. And it goes all the way up to a Class C offense if the ingestion of the controlled substance results in serious bodily injury. It's interesting they defined the word child to mean person under 16 years old. They defined ingestion to mean, you know, hey, you've taken, you've consumed the drugs. But they don't define expose. It seems to me, I immediately got questions about this when the bill became law. What does expose mean? If a parent is smoking marijuana on the back porch and the child is in the living room, Is that exposing them that's inside the house? Is that exposure? Seems like it probably would be. You know, certainly just having like a bag of marijuana gummies laying out on the kitchen table with children around seems like that probably counts as exposure. So what would otherwise be, say, a class three possession of less than a half ounce of marijuana offense or at most misdemeanor child abuse where sort of the negligence and leaving you know, controlled substances around where children will be exposed to them. Now it's a class H felony for a person to be exposed for a person to expose a child to these substances. And unlike some things, you know, in Chapter 90, we have the offense of possession of controlled substances within a thousand feet of a school daycare or park. But you've got to be 21 years old or older to commit that offense. It doesn't apply to children. It doesn't apply to teenagers. Or anyone under 21 years old. That is not the case here. So the way I read it, even a 17-year-old, say, might be exposing a child who's 15 to marijuana by consuming it in their presence or merely having it in their presence where the younger child is aware of it. And it could even be the case that, say, a group of 15 year old children smoking marijuana together are all committing the felonies of exposing each other to marijuana. We do see these stories in the news quite a bit where an infant is exposed to fentanyl powder. We sometimes see stories of accidental ingestion of marijuana gummies or similar things like that. And I have to assume that's the evil that the legislature was targeting here. But it strikes me this is going to raise the seriousness of criminal liability for marijuana users in particular from what again would otherwise be misdemeanor conduct to now felony conduct. It's notable that more serious drugs like fentanyl and heroin are treated the same as schedule six drugs like marijuana. I also wonder how hemp products might be treated in this context, given the lack of distinction our courts have really given to hemp versus marijuana products. If it's sort of like regular marijuana prosecutions, the burden may be on the defendant. to prove that the substance was hemp and not marijuana because one thing that we didn't get out of all these criminal laws were new hemp regulations. The house had passed a comprehensive regulatory scheme for hemp products that would do things like impose an age limit assure quality control testing, and put some concentration limits on how much of the stuff you could get. But it was a very reasonable bill from the perspective of the hemp industry and enjoyed industry support. But when that bill was sent to the House, they responded with a draft bill that effectively would have outlawed all hemp products. except for tiny concentrations of Delta-9, including CBD and CBG and CBN, things that are non-intoxicating hemp products. Uh, so the two chambers of the legislature were light years apart when it came to hemp regulations. And once more, you know, another session has passed without any regulation of hemp, not so much as an age limit. So with that confusion and lack of regulation on hemp products, that'll be interesting to see, you know, apparently it won't be a crime at all. For me to expose a child to hemp gummies, even intoxicating ones, but regular old marijuana, that would be enough to qualify as exposing. We have increased the penalty for solicitation of minors by computer access. as well it was a class h felony to solicit a minor by computer it became a g felony if the person showed up to the meeting place to meet a child now it's a g to do that same solicitation and a class d to show up the g for solicitation becomes an e for class e felony for any second or subsequent offense just something to notice I'm not going to cover it here, but we also did make some changes to our secret peeping statute as well. Moving to Session Law 2025-71, aka Senate Bill 311, quite a few new things here as well. We have for the first time criminalized the sale and possession of of embalming fluid. I am a person who feels a lot of drug questions in the state, and I hear some weird stuff sometimes, but I can't really say I've heard of recreational use of embalming fluid, or at least not in a very long time. I think You know, maybe around the time that I was in high school, you would hear rumors of people dipping marijuana or tobacco cigarettes into embalming fluid to get some kind of buzz. But it's something I've never heard or seen of in my adulthood or since I've been at the School of Government. But apparently this was on the legislature's mind this year, and we now have several new offenses relating to possession and sale of embalming fluid. It's a Class I felony to unlawfully sell embalming fluid, and we have a string of possession offenses. If it's less than an ounce, it's a Class I felony. Between 28 grams and 200 grams, that becomes a Class G felony. between 201 and 400 grams it's a f felony and over 400 grams of embalming fluid is a class d felony embalming fluid is also added the possession of embalming fluid is also added to the good samaritan immunity law in 90-96.2 c3 That's the law that talks about only a small amount of drugs was involved, and the person calls to report an overdose in good faith, believing they're the first to call. The person avoids prosecution for any possession offense or paraphernalia offense. Again, it's a very narrow immunity law, as we've discussed before, but this was added in because it wasn't there before. One point of... Perhaps pride, perhaps frustration, perhaps just humor is how many larceny offenses we have in North Carolina. Last time I counted, I think we were somewhere in like 17, 18, 19 different types of larceny. You have larceny of ginseng, larceny of a dog, larceny of a firearm. Many, many more. Well, add two more to the list. We'll have a new offense come December 1st called larceny of mail. And that will set the penalty at whatever one class higher than whatever the larceny would otherwise be. Presumably, it's either misdemeanor larceny or felony larceny based on the value. Although I suppose you could commit larceny of mail from inside of a house pursuant to a breaking and entering. We will also have larceny of gift cards, new 14-72.12. That will make it a class one misdemeanor for larceny of gift cards worth less than a thousand or else class H felony over a thousand. This is just getting the gift cards without the consent of the opener or getting them by false pretenses or any kind of altering or tampering with the gift cards. Our hit and run statute was amended. This is 20-166 . Two changes here. You will now have a mandatory aggravated sentence for any kind of hit and run that causes death. Have to be sentenced in the aggravated range. Now that's interesting because juries normally have to determine the existence of aggravating factors and it occurs to me that you still might want to make the jury find the aggravator. But the legislature here is saying we think you just automatically get an aggravated sentence if the hit and run caused death. There's also a new mandatory four year suspension of your license allows you to reapply after three years, but you're presumptively suspended for four years. If there is any death caused as a result of the hit and run, the suspension is permanent. although the legislature has authorized defendants in that situation to reapply for a license after seven years. A couple of new enhancements, both to our firing by felon law, our burglary law, and our breaking and entering laws. If a person possesses a firearm during the commission of a felony or an attempt to commit a felony, they will be sentenced for firearm by felon as a Class F. If they actually brandish the weapon or they possess a weapon of mass destruction during a felony or felony attempt, it's a Class D felony. If they are possessing a firearm after having been convicted of a felony and they use the firearm during a felony or during an attempt to commit a felony, that is a class C. So now we'll have sort of tiered firearm by felon offenses. The same goes for breaking and entering under 14-54. If there's a firearm possessed during that incident, it is one class higher than the B&E would otherwise be. And same with burglary. New enhancement for possession of a firearm that raises it one class higher than it would be otherwise. And speaking of burglary, There is no more requirement that a burglary take place at night. Burglary traditionally under the common law in our state follows the common law definition of burglary or did. You need a breaking and entering of another without consent at night into the dwelling place of another with intent to commit a felony or larceny therein. The legislature has amended 1451, effective December 1st, to say there is no more at-night requirement. So basically, you have breaking and entering of a dwelling house with intent to commit larceny or a felony. These will remain a Class D felony for first-degree burglary, that is, when it's occupied, or a G felony for second-degree burglary, unoccupied or of the curtilage. And then keep in mind, there's also that enhancement now. So if the person has a firearm while they commit burglary, that could raise a first-degree burglary to a C or a second-degree burglary to an F. That is it for our legislative roundup. Before we go, there was one case I wanted to discuss. We have spent a lot of airtime talking about Smith v. Arizona and substitute analysts in the context of the confrontation clause. Folks, I'm sure will remember we talked a little bit about State v. Clark a while back. In Clark, there was a drug analysis by the State Crime Lab. The person who performed the testing was not available to testify at Clark's trial, so different analysts came in. Over objection, the substitute analyst testified that they'd looked at the first analyst's work, that they'd formed their own independent opinion, that the work was correct and that the substance was correctly identified, and the defendant gets a new trial on appeal arguing a confrontation clause violation based on Smith v. Arizona. Prior to Smith v. Arizona, under a really confusing case, Williams v. Illinois, the Supreme Court had sort of indicated, at least a plurality of them at the time, supported the notion that it was not hearsay for a substitute expert to come in and offer an independent opinion about the work of someone else. And North Carolina really doubled down on that approach in cases like Brewington and Ortiz-Zapp, so that we have liberally admitted substitute analyst testimony. It can't be a complete parroting of the first analyst's work, the absent analyst's work, but they may formulate their own opinion. Really, as long as they said those magic words, their substitute opinion was allowed in. Well, Smith v. Arizona, as listeners know, finally took on this question that had really been left unresolved by Williams v. Illinois. and rejected that idea, said, we reject this basis of the opinion, this independent opinion stuff, that underlying report is hearsay, and if it's also testimonial, it violates the confrontation clause to get it. And so in the Clark case, the Court of Appeals really did a straightforward application of Smith v. Arizona. Said, hey, we know you used to could do this. We used to consider it non hearsay as basis of the testifying expert's opinion. But no more. Smith has abrogated that much. Smith has tacitly overruled that part of Williams v. Illinois, as well as those parts of Ortiz app and Brewington state Supreme Court cases giving approval to the practice. But we just got our second major substitute analyst case in North Carolina, and that is State v. Tate. Tate involves a sexual assault case. It's actually from my hometown of Greenville. This woman was having a pool day, it sounds like, and hanging out with friends and got very, very drunk. And at some point, a group of men got her into a car, took her to an apartment, and at least one of them was having sex with her when she came to, nearly unconscious. She gets away, she gets a rape kit performed, and the hospital sends the results to law enforcement in 2011. But the victim can't remember the guys. She's not able to readily identify these guys, her assailants. Police go to the apartment building where she'd been drinking and hanging out at the pool all day, and all of their surveillance cameras are down. So the case goes cold. And this sexual assault kit taken from her just sits on a shelf for many years. But... If you follow the news, there was a big grant a few years back, and specifically it was aimed at getting a bunch of untested rape kits tested. And that's what happens here. The Greenville police get some money in 2017, and they send this rape kit to Sorenson Labs, a private lab company. And I think we may have flagged this issue when we talked about the substitute analyst issues in Smith and Clark before, that this might be a problem for all these sexual assault kits because many of them were sent to private labs in order to clear the backlog. And the testing is done by those private labs, as I understand it, in sort of assembly line fashion with no one analyst responsible for it from start to finish. like they typically are at the state crime lab. Well, that's what happens here. They send this sample to Sorensen and say, hey, we're just want you to check it and see, is there any male DNA in this sample? And turns out they find male DNA. Now, that is all the private lab does. They say, we've identified a DNA profile consistent with male DNA. Back to you, state crime lab. Send it to the state crime lab. State crime lab runs it through their DNA database. They get a hit. The guy is already serving a sentence in Carteret County. Law enforcement goes to him, gets a sample, matches a confirmatory sample from the defendant. This is the guy. This is the person whose DNA was found on the victim. At the defendant's trial on second-degree rape, State Crime Lab sends a couple of analysts to testify, both people that were involved in the matching and the testing, but no one from Sorenson Labs testifies. And the defendant objected on confrontation grounds and complained that this was a problem. The defendant is convicted and he appeals. And when this goes up to the Court of Appeals, the court finds that this DNA profile created by the private lab Sorenson was non-testimonial. And they rely on the alternative holding of Williams v. Illinois. The main holding in Williams v. Illinois, as we talked about, was that underlying report or underlying data used by a different expert is permissible as non-hearsay basis of the expert opinion. And as long as an independent opinion is formed about it, it doesn't create a confrontation clause problem. Again, Smith v. Arizona rejected that idea. But Williams v. Illinois did have this alternative holding, which was the DNA report at issue. And it was, again, a DNA report in Williams that it was non-testimonial because, like here, they didn't have a suspect in mind at the time. They were really testing the sample merely for the presence of DNA. And they say the Tate Court, as the Williams plurality did, it was only a plurality of justices that joined this part of the holding. And that was Roberts, Alito, Breyer and Kennedy. And astute listeners will know two of those justices are no longer on the high court. Tate Court here, they recognize Smith has abrogated the basis of opinion part of Williams, but it did not abrogate the part of Williams v. Illinois that said the DNA report was non-testimonial. Well, I'll give you a quote. The victim's test kit was delivered to the private lab for the sole purpose of identifying the potential presence of any DNA other than her own. It was not to identify a potential suspect. The private lab's DNA profile was not testimonial in nature since it was not generated solely to aid in the police investigation of the defendant. The court expressly distinguished this from the testing of controlled substances where the defendant's identity is known. The forensic report is generated with a clear eye towards using it at the defendant's trial. So if this much of it stands, uh, I'll say intellectually, this strikes me as a very thin read on which to rest. Um, Again, it was a plurality of justices that joined this alternative holding of Williams. Smith largely abrogates Williams, although it admittedly did not touch this specific issue, but no majority had joined that view in the first place. And When we put it in the context of other confrontation clause cases about forensic reports like Bull Cumming and Melendez-Diaz, police sent this DNA report to the private lab for testing. The Tate court here doesn't accept that that was to identify a suspect, but it strains logic to think for what other purpose it was sent. The best way I can harmonize these is that forensic reports prepared for trial are generally going to be testimonial, but when a forensic report is created or created in part to determine whether unknown DNA is present before a suspect has been identified, that does not count as testimonial and that may be admitted consistent with the confrontation clause as non-testimonial. Smith v. Arizona, as we talked about on this show, did raise this specter that portions of a lab report may be non-testimonial at times. I think the related thing and the principle Tate is getting at here is that when the forensic report is created for some other purpose, not for use as evidence at the defendant's trial, but say it's a paternity test or it's medical treatment, that is generating the forensic report, those are ostensibly not testimonial and they're not going to violate the confrontation clause because they weren't prepared primarily for use at the defendant's trial. But this circumstance, testing a rape kit for the presence of male DNA, which is then going to be matched, run through CODIS or whatever DNA database there is, That strikes me as sort of in a gray area in terms of whether it's truly primarily being prepared for use at trial or not. Here, the Tate court settles on, we don't think it is prepared for trial. There was no suspect. There was no ongoing prosecution. This is much different from the kind of circumstances we saw in Clark. where it's, hey, this is Mr. Clark's suspected methamphetamine, and we need the lab results for use at his trial. So Tate potentially opens up a potentially big exception to the rule otherwise laid down by Smith. It also tends to, I think, revive this part of Williams v. Illinois that a lab report under these circumstances is non-testimonial. There's a really funny line in Williams, and it's repeated by the Tate court here, that this DNA report wasn't being used to inculpate anybody. It was being used to exculpate everyone else in the world whose DNA that this wasn't. Take that for what you will. The Tate court also recognizing that this stuff is unsettled and it's still evolving right now. They alternatively hold, even if this was a confrontation clause error, we think that error was harmless under the facts of the case. And to me, that would have been the cleaner holding in the first place. We don't have to decide the testimonial, non-testimonial issue because even if there was an error here, There was a lot of other evidence that eventually came out at Tate's trial showing he was the guy who did it. My suspicion is that we will see the state Supreme Court want to weigh in on this. A temporary stay has been issued by the state Supreme Court in the Clark case that we talked about. That was the one straightforward application of Smith v. Arizona, giving the guy a new trial where a substitute analyst testified. The Tate decision, I'm sure the defendant will also be seeking further review at the state Supreme Court. If it stands, then defenders know when it's an unknown suspect, DNA profile being created, it's not testimonial, as if it was a report created for medical treatment or to establish paternity or some other non-prosecutorial purpose. It reminded me a bit of this leaning back on Williams v. Illinois. The court kind of did something similar in another Confrontation Clause case that we talked about on this show, State Supreme Court's decision in Lester. That one dealt with phone records and ultimately found phone records are machine-generated data and machine-generated data is non-testimonial. But just like the Tate court here sort of reviving this part of Williams that we otherwise might have thought of as dead, the court in Leicester said, well, we recognized in Ortiz's app that gas chromatography, raw data, is machine-generated data, and that's not going to be testimonial, and some other expert can come in and review that data. And I wrote a blog about that. We talked about that on the show. But like the Lester Court did with that portion of Ortiz-Zapp in regards to gas chromatography data, seemingly teeing it up to say drug tests performed by another chemist may be testified to by another chemist as long as they're relying on the raw data. That kind of exception to the confrontation rule that forensic reports are testimonial and that you should be entitled to cross-examine. the person who performed the testing, which is largely what Smith v. Arizona dictates, would really swallow the rule. I don't think it's quite so extreme here in the Tate case, but again, another gaping sort of exception to the otherwise general rule that forensic reports prepare for trial are testimonial. Well, not so when there's not a case yet and there's not a suspect yet. That is different according to State v. Tate. i hope to get some writing out on that soon i have had some vacation this summer and i've been out of the office a good little bit we just finished a week of trial school it's a bring your own case program that kept me jumping as well but i look forward to getting caught back up and putting out some writing about these issues some of these new crimes and other things we've talked about on the show and it is great to be back in the studio A big thanks to Paul Bonner, my studio wizard. Big thanks to the School of Government and to IDS for all of their support. Big thank you as well to Monica Yelverton, my assistant director at Public Defense Education, as well as my brother, David Dixon, for his work on our theme music. I hope to talk to everyone again soon. If anyone has questions, concerns, feedback, please shoot me an email and let me know your thoughts. I can always be reached at dixon at sog.unc.edu. Again, that's dixon at sog.unc.edu. Thanks, everybody. Talk to you soon.