Defenders should make sure they are familiar with how recent legislative changes affect remote testimony by lab analysts, especially in district court. Shea Denning’s post on the School of Government Blog provides an in-depth analysis of the changes. The AOC provided a memo on the issue, available here. My post will provide a few practice points for defenders. Here are some things defenders should consider:
- What is the date of offense? These changes become effective Jan. 1, 2022 for criminal proceedings beginning on or after that date. Cases originating before that date will be subject to the previous procedures which do not allow remote testimony where the defendant properly objects.
- Is there a constitutional issue? While amended G.S. 15A-1225.3 and G.S. 20-139.1 permit testimony by analysts in district court regardless of whether the defendant objects, the legislative change does not resolve whether categorically allowing remote testimony violates the defendant’s constitutional right to confrontation. Defendants should object on constitutional grounds where appropriate. The SOG blog post has additional information on the constitutional issues that our appellate courts will need to resolve.
- Was the full lab report provided? For remote testimony to be permitted as defined in G.S. 15A-1225.3, the State must provide to the defendant under (b)(1) the “full laboratory report package provided to the district attorney” at least 15 business days in advance of the proceeding. This means that the 2-page summary report/affidavit that the State provides to defense attorneys in many jurisdictions is not sufficient where the State intends to offer remote testimony. The State Crime Laboratory, which tests a significant proportion of the blood samples in DWI cases, as a matter of course provides a full laboratory package with the data supporting their testing to district attorneys in each case that they work, whether it is a district or superior court case. Their Procedure for Record and Data Management and Procedure for Reporting Results describe what goes into a case record and how it is provided to district attorneys. Where the State intends to use remote testimony, defenders who weren’t getting full lab reports can anticipate getting more complete information about the testing prior to trial, which can be helpful in assessing the strength of the evidence and utilizing expert assistance.
Please reach out to me if you have questions or need help reviewing lab reports provided in your cases!