Mast, Schulz, Mast, Johnson, Wells & Trimyer, P.A.

U.S. Supreme Court Ruling may have impact on N.C. Dwi's

The U.S. Supreme Court ruled in Melendez-Diaz, that a forensic lab report could not be used against a criminal defendant unless the analyst that prepared the report also testified and was subject to cross examination.  The Court essentially reaffirmed the principal from Crawford v. Washington, 541 U.S. 36 (2004), which held that evidence, such as affidavits, was "testimonial" in nature, and that a defendant has the right to cross-examine the maker at trial.

After the "Crawford" decision was handed down, the N.C. General Assembly passed what has been termed the "Anti-Crawford" statute, N.C. Gen. Stat. s 20-139.1.  Under the current version, a sworn officer's or chemical analyst's documentation regarding a defendant's alleged blood alcohol concentration (BAC), was automatically admissible into evidence, even if the preparer was not in court. This hinders an ability to defend a client because there was no way to verify that the document submitted to the court was the actual one prepared for this client, and there is no way to cross examine the officer/analyst on the techniques used to ensure that the proper procedures were followed.

The statute did allow for the defendant to subpoena the analyst, but defense attorneys have to jump through several hoops to get them in court. The Melendez-Diaz decision (although it arose of of New Jersey), has already started having an impact in North Carolina. The General Assembly is currently in the process of revising the statute to require the "prosecutor" to give the defendant notice that they intend to use a document, and if the defendant objects, then the officer or chemical analyst must be brought to court by the State.  This shifts the burden to the prosecutor to prove their case, rather than the defendant trying to disprove the State's.

NC Supreme Court Abolishes "assignments of error"....

The Supreme Court of North Carolina is in charge of creating "Rules of Appellate Procedure". Basically, it means, what procedural steps must be done to get your case appealed from a lower court (District or Superior) and heard before one of our State Appellate Courts, (1st Court of Appeals, or 2nd NC State Supreme Court).

Previously (and until October 2009), if a litigate was not satisfied with a ruling at a lower trial court, the appellant (party appealing) had to file a "notice of appeal" which essentially puts the other party on notice and the courts that you are appealing their decision.

Then, the appealing party has to prepare a "Record on Appeal" (i.e. the lower court court papers, etc.).   Contained within this record on appeal the appealing party has to set out, pursuant to Rule 10 of the Rules of Appellate Procedure, the "Assignments of Error" which set forth the specific errors in the record (lower courts).  These "assignments' had to be very specific, were time consuming, and had to cite pages to the record which made an appellate process often difficult, and on occasion, would cause an appealing party's appeal to be dismissed due to a technical error (regardless of whether or not the Court was correct in a particular ruling).

With the new rules in place, a party will now have to submit a "list or proposed issues" on appeal, which more generically encompasses the argument the appellant is making on what occurred wrong at the lower court level. Hopefully this will result in more meritorious appeals being heard and less costs to litigants who choose to challenge a potential error by lower court judge.

If you or someone you know is in need of an appellate attorney, feel free to contact the attorneys at Mast Schulz Mast Johnson Wells & Trimyer. We have experience appealing decisions to the North Carolina Court of Appeals, the North Carolina Supreme Court, and with appeals at the United States Supreme Court.

By; Ron Trimyer, ron@mastschulz.com