Two-Way Remote Testimony: Will It Pass Muster? (Part I)

Since the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), interest has been growing in the use of remote testimony as a method to satisfy the confrontation clause. Crawford held that under the sixth amendment’s confrontation clause, testimonial statements by witnesses who do not appear at trial cannot be admitted unless the State establishes unavailability and a prior opportunity to cross-examine. The Court’s later decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), held that forensic laboratory reports are testimonial and thus subject to the Crawford rule. The effect of Melendez-Diaz is that absent an exception to the Crawford rule or a waiver of confrontation rights, the prosecution must produce a forensic analyst at trial to overcome a confrontation objection to the admissibility of laboratory reports and chemical analyst affidavits. The North Carolina General Assembly sought to mitigate the effect of Melendez-Diaz by amending existing and enacting new “notice and demand statutes.” These statutes set up procedures for the State to procure from the defendant a waiver of confrontation clause rights with respect to certain forensic analyses. In a nutshell, they require the State to notify the defendant of its intent to use an analyst’s report as evidence at trial without the presence of the analyst. If the defendant does not timely lodge an objection, the defendant is deemed to waive a confrontation clause objection to the evidence. If the defendant objects, the analyst must be produced at trial. Given that a defendant may have [...]