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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. •. Retroactivity of Blakely. •. Retroactivity of Blakely. •.
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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 •
Retroactivity of Blakely Apprendi: Any fact other than prior conviction that increases punishment beyond statutory maximum must be proved to a jury beyond a reasonable doubt. •
Retroactivity of Blakely Lucas: To determine statutory maximum for purposes of Apprendi, assume aggravated sentence & PRL VI. •
Retroactivity of Blakely Blakely: 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 •
Retroactivity of Blakely What cases are affected? (1) Future cases (2) Pending cases (3) Old cases •
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.” •
Retroactivity Analysis • Is it a new rule? • Is it procedural? • Is it a watershed rule of criminal procedure? •
Is it a “New” Rule? First, determine when D’s conviction became final. •
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. •
Retroactivity Analysis • Is it a new rule? • Is it procedural? • Is it a watershed rule of criminal procedure? •
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 •
Retroactivity Analysis • Is it a new rule? • Is it substantive or procedural? • Is it a watershed rule 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 •
Retroactivity of Blakely • Is it a new rule? • Is it substantive or procedural? • Is it a watershed rule of criminal procedure? •
Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 Apprendi Ring Blakely •
Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely •
Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely •
Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely •
Is Blakely substantive or procedural? • Ring has been held to be procedural •
Is Blakely a watershed rule of criminal procedure? • Ring is not •
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. •
Victim’s statements to the police • Forrest: non-testimonial •
Victim’s statements to the police • Forrest: non-testimonial • Lewis: testimonial •
Victim’s statements to the police • Forrest: non-testimonial • Lewis: testimonial • Bell: testimonial •
911 calls • Not yet decided in NC • Around the nation . . . •
Excited Utterances • Forrest? • Around the nation . . . •
Statements of Child Victims/Child Witnesses • To police officers •
Statements of Child Victims/Child Witnesses • To police officers • To social workers •
Statements of Child Victims/Child Witnesses • To police officers • To social workers • To medical personnel •
Statements to Family & Friends • It’s unanimous! They’re non-testimonial •
Forfeiture by Wrongdoing • Cases involving act separate from the crime • Bootstrapping cases •
Statements Offered for Purpose Other than Truth of Matter Asserted • Clark • Around the nation . . . •
Availability for Cross-Examination • Assertion of privilege • Forgetful witness •
Availability for Cross-Examination • Assertion of privilege • Forgetful witness • Judge’s restrictions •
Unavailability • Clark • Bell •
Crawford Retroactivity • New rule? • Procedural? • Watershed? •
