Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith

1. Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Government, UNC-Chapel Hill

2. Retroactivity of Blakely • Crawford update • Recent case potpourri

3. Retroactivity of Blakely

4. Retroactivity of Blakely

5. 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.

6. Retroactivity of Blakely Lucas: To determine statutory maximum for purposes of Apprendi, assume aggravated sentence & PRL VI.

7. Retroactivity of Blakely Blakely: Statutory maximum for purposes of Apprendi is the max. a judge can impose based on jury verdict or guilty plea.

8. Retroactivity of Blakely • Implications: • Aggravating factors • PRL points not based on prior conviction • Non-SSL misd. like DWI

9. Retroactivity of Blakely What cases are affected? (1) Future cases (2) Pending cases (3) Old cases

10. 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.”

11. Retroactivity Analysis • Is it a new rule? • Is it procedural? • Is it a watershed rule of criminal procedure?

12. Retroactivity Analysis • Is it a new rule? • Is it procedural? • Is it a watershed rule of criminal procedure? 

13. Is it a “New” Rule? First, determine when D’s conviction became final.

14. Is it a “New” Rule? Then, look at the law as it then existed and ask: Was the new rule “dictated” by precedent? Was the unlawfulness of the conviction apparent to all reasonable jurists at the time?

15. Retroactivity Analysis • Is it a new rule? • Is it procedural? • Is it a watershed rule of criminal procedure? 

16. 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

17. Retroactivity Analysis • Is it a new rule? • Is it substantive or procedural? • Is it a watershed rule of criminal procedure? 

18. Is it a watershed rule of criminal procedure? • Various formulations • Gideon is the example • But no rule ever held to fall within this exception

19. Retroactivity of Blakely • Is it a new rule? • Is it substantive or procedural? • Is it a watershed rule of criminal procedure?

20. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 Apprendi Ring Blakely

21. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely

22. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely

23. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely

24. Is Blakely substantive or procedural? • Ring has been held to be procedural

25. Is Blakely a watershed rule of criminal procedure? • Ring is not

27. Crawford Update

28. 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.

29. Victim’s statements to the police • Forrest: non-testimonial

30. Victim’s statements to the police • Forrest: non-testimonial • Lewis: testimonial

31. Victim’s statements to the police • Forrest: non-testimonial • Lewis: testimonial • Bell: testimonial

32. 911 calls • Not yet decided in NC • Around the nation . . .

33. Excited Utterances • Forrest? • Around the nation . . .

34. Statements of Child Victims/Child Witnesses • To police officers

35. Statements of Child Victims/Child Witnesses • To police officers • To social workers

36. Statements of Child Victims/Child Witnesses • To police officers • To social workers • To medical personnel

37. Statements to Family & Friends • It’s unanimous! They’re non-testimonial

38. Forfeiture by Wrongdoing • Cases involving act separate from the crime • Bootstrapping cases

39. Statements Offered for Purpose Other than Truth of Matter Asserted • Clark • Around the nation . . .

40. Availability for Cross-Examination • Assertion of privilege • Forgetful witness

41. Availability for Cross-Examination • Assertion of privilege • Forgetful witness • Judge’s restrictions

42. Unavailability • Clark • Bell

43. Crawford Retroactivity • New rule? • Procedural? • Watershed?

44. New Case Potpourri • Hiibel v. Sixth Jud. District Court of Nev. (US S.Ct. p. 1)

45. New Case Potpourri • Hiibel v. Sixth Jud. District Court of Nev. (US S.Ct. p. 1) • Law requiring disclosure of name consistent with 4th Amend. • Conviction did not violate privilege against compelled self-incrimination

47. US v. Patane (U.S. S.Ct. p. 2) • Facts: • -After arrest, Officer starts to give warnings but D interrupts, saying he knows his rights • -Officer asks about a gun, D admits he has one & consents to allow officers to get it

48. US v. Patane (U.S. S.Ct. p. 2) • Held: • Failure to give Miranda warnings didn’t require suppression of firearm obtained as a result of D’s unwarned but voluntary statement

49. Missouri v. Seibert (U.S. S.Ct. p. 2) • Facts: • -D arrested • -Officer intentionally fails to give warnings & gets a confession • -Gives D a break, gives warnings & gets 2nd confession

50. Missouri v. Seibert (U.S. S.Ct. p. 2) • Held: • When an officer as part of interrogation technique deliberately fails to give Miranda warnings, gets a confession & then gives warnings & gets another confession, neither confession is admissible