Ever since that most unlikely of friends to the criminal defendant, Antonin Scalia, penned Crawford v. Washington in 1995, restoring the right of the accused to be confronted with and to cross-examine his accuser – which the C0nstitution unequivocally guarantees and which years of case-law had buried in a teeming cess-pit of court-found exceptions – our legislature has relentlessly fought to scale back that right.  And has done so stealthily and in a way that isn’t going to yield much attention.  The North Carolina government knows that an ignorant populace is easily manipulated; so when it enacts laws that curtail the rights of the criminal defendant, the ignorant won’t raise their voices in protest.  Only the law professors and other “liberal elites” will.  The educated populace will raise the alarm. And the Duck Dynasty Republican base will do its duty and shout the voice of alarm down, never to understand that it just fucked itself again.  If only they were as passionate about the parts of the Constitution that are not the second half of the Second Amendment.  But again, ignorance and all that.

The latest effort (and success) by the Republican-dominated State legislature to deny the accused his confrontation rights can be found in the small changes to NCGS 20-139.1 – the DWI Notice and Demand statute. Sounds dry and it is; but it’s important.  The loss of a right here weakens the right over there. And every right everywhere.

Prior to the amendments to this statute, the law surrounding the admissibility of written blood, urine and breath reports as well as chain of custody reports in lieu of witnesses having to testify about what the reports say was: first, (Notice) that the State had to provide written notice and a copy of the report to the defense at least 15 days prior to the hearing at which the report would be used; and second, (Demand) that the defense failed to object and demand the presence of the witnesses  in writing  at least five days prior to that hearing.  In other words, in order for the defendant to insist that he be confronted with the witnesses against him, the State needed to advise him that it intended not to bring those witnesses to court, and, he, the defendant needed to object.  Obviously, if the State failed to put the defendant on notice, the defendant didn’t need to object.

Notice and Demand statutes are, themselves, designed to deny the defendant his confrontation rights by imposing some affirmative duty on the defendant to invoke that right, not to be deemed to have waived the right by failing to do something.  It seems to me that if the defendant has a right to confront the witnesses against him, the State should be required to bring those witnesses to court to testify and be cross-examined; not be allowed to warn the defendant that he – the State – is going to get the evidence in through an un-cross-examinable piece of paper unless the defendant specifically, and in writing, demands the presence of the witness. Since when does a right exist only after you’ve been threatened with the violation of it, and you have to express your objection, in writing, to the violation?

This already horrible piece of legislation has been worsened by two tiny yet significant changes.  The first is a change in the Notice provision: the State now must notify the defense no later than 15 days after receiving the report and at least 15 days prior to the proceeding (my itallics). The second, and far more significant change, is a change in the Demand provision that reads as follows:

If the proceeding at which the report would be introduced into evidence under this statute is continued, the notice provided by the State, the written objection filed by the defendant, or the failure of the defendant to file a written objection shall remain effective at any subsequent calendaring of that proceeding (my itallics)

The first change forbids the State from sitting on a report till the last minute, which under ethical rules it shouldn’t do anyway.  The second change – staggeringly – tells the defendant that if he hasn’t filed his objection and demand prior to the first court date, he is forever prohibited from filing it; he can no longer avail himself of the five-day rule to file his objection.  His right to confront the witnesses against him is forever lost because he didn’t file his objection prior to the first court date.  For all we know, the defendant intentionally didn’t file his objection prior to the first court date for tactical reasons, and he later discovered that his better tactic would be to file it (remember, we’re talking about DWI’s in District Court where there is no right to discovery).  Perhaps the defendant discovered a piece of information on that first court date that he couldn’t have discovered prior to it, and it was that piece of information that led him to rethink the mandatory invocation of his right. Maybe, he just forgot to file it; the case is continued for whatever reason – maybe it was the State’s motion to continue it – and the defendant is barred from filing his objection to the violation  of his rights at least five days prior to the next hearing or the next or the next or the next.

Or perhaps, I am hired by a defendant who realizes he doesn’t want his original lawyer because, you now, he doesn’t do things like file timely objections, and my client is forever precluded from filing his objection and exercising his absolute and unrestricted  right to be confronted with and to cross-examine his accusers, as the Constitution – without any notice and demand nonsense – guarantees, all because his previous lawyer didn’t know what he was doing!

Happy 240th plus one day, my wonderful champions of freedom.  Stay vigilant, my friends.