As I explain in more detail here, notice and demand statutes allow the State to obtain a constitutional waiver of confrontation rights so that forensic lab reports and related items can be admitted without the presence of the preparer. Nevertheless, I get a lot of calls from panicked prosecutors wondering how they are going to overcome Crawford with respect to a lab report because the preparer is (choose one): dead, retired and has moved away, on National Guard duty in Afghanistan, or scheduled for a C-section. Here’s how the typical conversation goes: ME: Did you give notice under the notice and demand statute? PROSECUTOR: What notice and demand statute? The failure to take advantage of these statutes is so pervasive that a recent criminal case went all the way up the N.C. Supreme Court before the State realized it had neglected to argue notice and demand. In that recent case--State v. Jones--the N.C. Court of Appeals issued an opinion awarding the defendant a new trial in part because the trial court committed plain error by admitting a SBI crime lab report into evidence without testimony by the analyst. The court reasoned that the report was testimonial and its admission violated Crawford. The State then filed petitions for writ of supersedeas and discretionary review with the N.C. Supreme Court, arguing that the court of appeals erred by ordering a new trial. After the Court granted the petitions, the State filed a motion to amend the record on appeal to include [...]
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