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Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Governmen

Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Government, UNC-Chapel Hill. Click Here For Sound. Retroactivity of Blakely Crawford update. •. Retroactivity of Blakely. •. Retroactivity of Blakely. •.

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Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Governmen

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  1. Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Government, UNC-Chapel Hill Click Here For Sound

  2. Retroactivity of Blakely • Crawford update •

  3. Retroactivity of Blakely •

  4. Retroactivity of Blakely •

  5. 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. •

  6. Retroactivity of Blakely Lucas: To determine statutory maximum for purposes of Apprendi, assume aggravated sentence & PRL VI. •

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

  8. Retroactivity of Blakely • Implications: • Aggravating factors • PRL points not based on prior conviction • Non-SSL misd. like DWI •

  9. Retroactivity of Blakely What cases are affected? (1) Future cases (2) Pending cases (3) Old cases •

  10. 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.” •

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

  12. Is it a “New” Rule? First, determine when D’s conviction became final. •

  13. 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. •

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

  15. 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 •

  16. Retroactivity Analysis • Is it a new rule? • Is it substantive or procedural? • Is it a watershed rule of criminal procedure?  •

  17. Is it a watershed rule of criminal procedure? • Various formulations • Gideon is the example • But no rule ever held to fall within this exception •

  18. Retroactivity of Blakely • Is it a new rule? • Is it substantive or procedural? • Is it a watershed rule of criminal procedure? •

  19. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 Apprendi Ring Blakely •

  20. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely •

  21. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely •

  22. Is Blakely a new rule? 6/26/00 6/24/02 6/24/04 x Apprendi Ring Blakely •

  23. Is Blakely substantive or procedural? • Ring has been held to be procedural •

  24. Is Blakely a watershed rule of criminal procedure? • Ring is not •

  25. Crawford Update •

  26. 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. •

  27. Victim’s statements to the police • Forrest: non-testimonial •

  28. Victim’s statements to the police • Forrest: non-testimonial • Lewis: testimonial •

  29. Victim’s statements to the police • Forrest: non-testimonial • Lewis: testimonial • Bell: testimonial •

  30. 911 calls • Not yet decided in NC • Around the nation . . . •

  31. Excited Utterances • Forrest? • Around the nation . . . •

  32. Statements of Child Victims/Child Witnesses • To police officers •

  33. Statements of Child Victims/Child Witnesses • To police officers • To social workers •

  34. Statements of Child Victims/Child Witnesses • To police officers • To social workers • To medical personnel •

  35. Statements to Family & Friends • It’s unanimous! They’re non-testimonial •

  36. Forfeiture by Wrongdoing • Cases involving act separate from the crime • Bootstrapping cases •

  37. Statements Offered for Purpose Other than Truth of Matter Asserted • Clark • Around the nation . . . •

  38. Availability for Cross-Examination • Assertion of privilege • Forgetful witness •

  39. Availability for Cross-Examination • Assertion of privilege • Forgetful witness • Judge’s restrictions •

  40. Unavailability • Clark • Bell •

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

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