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

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.

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

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

Retroactivity of Blakely Implications: 1. Aggravating factors 2. PRL points not based on prior conviction 3. Non-SSL misd. like DWI

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

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.”

Retroactivity Analysis 1. Is it a new rule? 2. Is it procedural? 3. Is it a watershed rule of criminal procedure?

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

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.

Retroactivity Analysis 1. Is it a new rule? 2. Is it procedural? 3. Is it a watershed rule of criminal procedure? 

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

Retroactivity Analysis 1. Is it a new rule? 2. Is it substantive or procedural? 3. Is it a watershed rule of criminal procedure? 

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

Retroactivity of Blakely 1. Is it a new rule? 2. Is it substantive or procedural? 3. Is it a watershed rule of criminal procedure?

Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely

Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely x

Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely x

Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely x

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

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

Crawford Update

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.

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

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

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

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

Excited Utterances Forrest? Around the nation...

Statements of Child Victims/Child Witnesses To police officers

Statements of Child Victims/Child Witnesses To police officers To social workers

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

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

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

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

Availability for Cross- Examination Assertion of privilege Forgetful witness

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

Unavailability Clark Bell

Crawford Retroactivity New rule? Procedural? Watershed?