This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them. The basic rule regarding the defendant’s 6th Amendment right to confrontation is that a testimonial statement can only be admitted without the live witness when the witness is unavailable and the defendant had a prior motive and opportunity to cross-examine the witness about the statement. The three recent decisions help unpack this rule. None strike me as particularly groundbreaking, but they are good reminders about what’s testimonial and what’s not, what unavailable means, what a prior opportunity for cross consists of, and when a defendant can forfeit confrontation rights. Miller: Ongoing Emergency, Prior Opportunity for Cross, and Forfeiture In State v. Miller, the defendant was charged with the first-degree murder of his wife, among other offenses. The state wanted to present evidence of statements made by the deceased wife to a law enforcement officer at an earlier domestic disturbance call involving the [...]
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