Criminal Law Update

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Criminal Law Update Review NC Conference of
Superior Court Judges November, 2004 Jessica
Smith School of Government, UNC-Chapel Hill
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• Retroactivity of Blakely
• Crawford update
• Recent case potpourri

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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.
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• 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
• Aggravating factors
• PRL points not based on prior conviction
• 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
• Is it a new rule?
• Is it procedural?
• Is it a watershed rule of criminal procedure?

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

?
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Is it a New Rule? First, determine when Ds
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? Was the unlawfulness
of the conviction apparent to all reasonable
jurists at the time?
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• Retroactivity Analysis
• Is it a new rule?
• Is it procedural?
• 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 States power to punish
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• Retroactivity Analysis
• Is it a new rule?
• Is it substantive or procedural?
• 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
• Is it a new rule?
• Is it substantive or procedural?
• 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
x
Apprendi
Ring
Blakely
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Is Blakely a new rule?
6/26/00
6/24/02
6/24/04
x
Apprendi
Ring
Blakely
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Is Blakely a new rule?
6/26/00
6/24/02
6/24/04
x
Apprendi
Ring
Blakely
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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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(No Transcript)
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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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• Victims statements to the police
• Forrest non-testimonial

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• Victims statements to the police
• Forrest non-testimonial
• Lewis testimonial

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• Victims 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
• Its unanimous! Theyre non-testimonial

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• 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
• Judges restrictions

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• Unavailability
• Clark
• Bell

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

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New Case Potpourri

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

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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

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(No Transcript)
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• 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

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• US v. Patane (U.S. S.Ct. p. 2)
• Held
• Failure to give Miranda warnings didnt require
  suppression of firearm obtained as a result of
  Ds unwarned but voluntary statement

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• 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

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• 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

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Yarborough v. Alvarado (U.S. S.Ct. p. 3)
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• Ds age or inexperience with law enforcement are
  not factors in determining whether custody exists
  under Miranda
• Test is objective

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• New Case PotpourriNC Cases
• State v. Jones (NC 6/25/04) possession of
  cocaine is a felony

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• New Case Potpourri
• State v. Garcia (NC 6/25/04) D was not in
  custody under Miranda to require Miranda warnings

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• New Case Potpourri
• State v. Gonzales (NC App. 6/1/04) Weight of
  marijuana determined _at_ time of seizure, including
  moisture

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• New Case Potpourri
• Howerton v. Arai Helmet (NC 6/25/04) Court
  declines to adopt Daubert