Criminal Law Update & Review

NC Conference of Superior Court JudgesNovember, 2004

Jessica SmithSchool of Government, UNC-Chapel Hill

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• Retroactivity of Blakely

• Crawford update

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• Retroactivity of Blakely

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• Retroactivity of Blakely

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• 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.

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• Retroactivity of Blakely

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

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• Retroactivity of Blakely

Implications:

1. Aggravating factors

2. PRL points not based on prior conviction

3. Non-SSL misd. like DWI

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• Retroactivity of Blakely

What cases are affected?

(1) Future cases

(2) Pending cases

(3) Old cases

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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.”

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Retroactivity Analysis

1. Is it a new rule?

2. Is it procedural?

3. Is it a watershed rule of criminal procedure?

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Is it a “New” Rule?

First, determine when D’s conviction became final.

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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

1. Is it a new rule?

2. Is it procedural?

3. Is it a watershed rule of criminal procedure?

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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

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Retroactivity Analysis

1. Is it a new rule?

2. Is it substantive or procedural?

3. Is it a watershed rule of criminal procedure?

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Is it a watershed rule of criminal procedure?

• Various formulations

• Gideon is the example

• But no rule ever held to fall within this exception

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Retroactivity of Blakely

1. Is it a new rule?

2. Is it substantive or procedural?

3. Is it a watershed rule of criminal procedure?

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Is Blakely a new rule?

6/26/00 6/24/02 6/24/04

Apprendi Ring Blakely

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Is Blakely a new rule?

6/26/00 6/24/02 6/24/04

Apprendi Ring Blakely

x

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Is Blakely a new rule?

6/26/00 6/24/02 6/24/04

Apprendi Ring Blakely

x

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Is Blakely a new rule?

6/26/00 6/24/02 6/24/04

Apprendi Ring Blakely

x

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Is Blakely substantive or procedural?

• Ring has been held to be procedural

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Is Blakely a watershed rule of criminal procedure?

• Ring is not

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Crawford Update

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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.

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Victim’s statements to the police

• Forrest: non-testimonial

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Victim’s statements to the police

• Forrest: non-testimonial

• Lewis: testimonial

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Victim’s statements to the police

• Forrest: non-testimonial

• Lewis: testimonial

• Bell: testimonial

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911 calls

• Not yet decided in NC

• Around the nation . . .

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Excited Utterances

• Forrest?

• Around the nation . . .

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Statements of Child Victims/Child Witnesses

• To police officers

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Statements of Child Victims/Child Witnesses

• To police officers

• To social workers

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Statements of Child Victims/Child Witnesses

• To police officers

• To social workers

• To medical personnel

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Statements to Family & Friends

• It’s unanimous! They’re non-testimonial •

Forfeiture by Wrongdoing

• Cases involving act separate from the crime

• Bootstrapping cases

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Statements Offered for Purpose Other than Truth of Matter Asserted

• Clark

• Around the nation . . .

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Availability for Cross-Examination

• Assertion of privilege

• Forgetful witness

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Availability for Cross-Examination

• Assertion of privilege

• Forgetful witness

• Judge’s restrictions •

Unavailability

• Clark

• Bell

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Crawford Retroactivity

• New rule?

• Procedural?

• Watershed?

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