North Carolina Criminal Law Updates
Notice-and-demand statutes, stipulations, and failures to object can all forfeit the right. Defense counsel, therefore, carefully review confrontation questions, seeking to preserve 6th Amendment protections through specific, repeated, and timely objection(s), as the case may necessitate.
Substitute Analyst Testimony
| Evidence or Testimony Type | Key Question |
|---|---|
| Truly machine-generated raw data | Can the witness explain and verify the data without relying on another examiner’s out-of-court statements? |
| Photographs or video | Is the witness interpreting the image directly, or repeating what an absent examiner said about it? |
| Charting, measurements, and written observations | Does the opinion depend on accepting the absent examiner’s notes as true? |
| Protocol-compliance statements | Who can testify from personal knowledge that the required procedure was followed? |
| Another examiner’s conclusions | Is the witness giving an independent opinion, or just repeating someone else’s conclusion? |
| Patient or victim statements during an exam | Were the statements made for medical care, investigation, or future prosecution? |
| Witness who helped perform the work | Did the witness do enough of the work to be meaningfully cross-examined? |
I. The Confrontation Clause | Courtroom Cross Examination
The Confrontation Clause is one of the few procedural rights the framers of the Constitution wrote as an absolute. The Supreme Court has repeatedly said the right to confront and cross-examine your accuser is not subject to reliability inquiries or judicial efficiency concerns. The State must produce its witnesses. When the State seeks to prove guilt through the work of an absent analyst, examiner, or technician, the constitutional assumption is that such evidence would be excluded from testimony at trial.
For two decades after Crawford, North Carolina appellate courts have permitted what amounts to a type of workaround. A substitute expert may be able to testify based on another analyst’s report so long as the testifying expert claimed an “independent opinion” and the report was characterized as “basis evidence” (otherwise inadmissible evidence used to formulate an expert opinion) under North Carolina Rule of Evidence 703.
Smith v. Arizona modified that approach and related evidentiary assumptions. The United States Supreme Court (USSC) held in relevant part that when the absent analyst’s statements support the testifying expert’s opinion only if true, those statements may be admitted (in appropriate circumstances) as evidence indicating the truth of the matter asserted. If testimonial in nature, admission may violate the Confrontation Clause and therefore be subject to a Motion in Limine and/or a Motion to Suppress.
For criminal defense lawyers in North Carolina, the practical reality is that Smith potentially opens doors that other precedents once closed. The threshold question in a substitute-analyst case then becomes whether the testifying witness’s opinion can stand without asking the jury to credit the absent analyst’s statements. If it cannot, the Constitution protects the right to effectively confront and cross-examine the witness who did the work, not that of a surrogate, may be triggered.
II. The Confrontation Clause Framework
A. The Right to Confront & Cross-Examine Your Accuser
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The right is not a generalized hearsay rule. It is a structural guarantee that the State’s witnesses appear, swear, and submit to cross-examination in front of the jury that decides the case. North Carolina case law has interpreted that the federal Sixth Amendment right applies in criminal prosecutions in North Carolina.
B. Crawford v. Washington
Crawford overruled prior precedent and the reliability-balancing test. Under Crawford, testimonial hearsay is inadmissible against the accused unless (1) the declarant is unavailable and (2) the defense had a prior opportunity for cross-examination. A statement is testimonial when its primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.
C. Melendez-Diaz v. Massachusetts
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), held that forensic certificates of analysis identifying a substance as cocaine were testimonial. The analysts were “witnesses” the defendant was entitled to confront. The Court rejected the argument that forensic reports are merely “neutral” or “scientific” and therefore exempt from the Clause.
D. Bullcoming v. New Mexico
Bullcoming v. New Mexico, 564 U.S. 647 (2011), held that a substitute analyst could not authenticate a blood-alcohol report through “surrogate testimony.” The State called a different scientist who was not involved in the testing; the Court reversed. The defendant was entitled to confront the analyst who certified the result, not a colleague who could speak only to the lab’s general practices.
E. Smith v. Arizona
Smith v. Arizona, 602 U.S. 779 (2024), is the case that matters in current criminal prosecutions in North Carolina. A substitute analyst identified seized substances as marijuana, methamphetamine, and cannabis. That substitute analyst did not test the drugs. Another analyst performed testing to confirm the existence of a controlled substance. The substitute analyst reviewed the testing analyst’s notes and report and offered what the trial court characterized as an “independent opinion.”
The US Supreme Court vacated that conviction. The Court held that if an expert relies on an out-of-court statement (test results) to support an expert opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. An expert may not be used as a delivery system for an absent analyst’s testimonial assertions.
F. The Pre-Smith North Carolina Line of Cases | On Borrowed Time?
A series of North Carolina decisions previously permitted substitute-analyst testimony on a basis-evidence theory. Rule 703 allowed an expert to rely on another analyst’s report so long as the testifying expert claimed an “independent opinion” and was subject to cross-examination. That line of cases may be subject to further inquiry and argument.
III. The Substitute Analyst Question After Smith
The question after Smith is relatively straightforward. Can the testifying expert explain the opinion without asking the jury to accept the absent analyst’s statements as true? If yes, the testimony may be able to proceed. If not, the Confrontation Clause is likely implicated, and the testimonial-or-not inquiry follows.
A handful of different types of evidence and testimony may be involved, such as:
Machine-generated raw data. Machines are not witnesses. Raw output without human interpretation is neither hearsay nor testimonial. A testifying expert may be allowed to rely on machine output without confronting the technician who pressed the button, provided the expert can verify integrity and provenance through means independent of a testimonial statement.
Photographs and video. A photograph captures an image. It does not assert facts about what the absent examiner observed, measured, or concluded. A qualified expert may interpret the image and be cross-examined on lighting, angle, framing, completeness, and inference. State v Phillips, COA25-864 (N.C. Ct. App. May 6, 2026), treated photographs taken during a SANE examination as mechanically captured evidence on which a substitute expert could base an opinion. Phillips can be read as relatively narrow. The appellate record did not contain the underlying SANE report or the substitute expert’s written opinion, and the court explicitly tied its holding to that gap. Phillips does not bless surrogate medical testimony across the board. It addresses one form of evidence (images) on one record (incomplete).
Charting, measurements, written observations, protocol-compliance statements. These are the absent examiner’s assertions. Their value depends on accepting them as true. Under Smith, when the testifying expert’s opinion rests on these assertions, the absent examiner’s statements come in for their truth. The Confrontation Clause is likely implicated.
The absent examiner’s conclusions. A substitute expert who repeats another professional’s diagnostic, forensic, or interpretive conclusion is not offering an independent opinion. That is the Bullcoming surrogate-testimony problem and the Smith basis-evidence problem at once. Its admission may be precluded from the evidence at trial in North Carolina.
Patient or victim statements made during a forensic exam. These require their own analysis under the testimonial test. Statements made for medical diagnosis and treatment may be non-testimonial in nature. Statements made for evidentiary or investigative purposes generally are testimonial. The categorization depends on the primary purpose, not necessarily on the label the State puts on the form to meet the evidentiary hurdle.
When Substitute Testimony Genuinely Survives. Some cases involve a “substitute” witness who is not really a substitute at all. A pathologist who attended the autopsy and reached their own conclusions is likely not a surrogate for the autopsy report. They serve as a percipient (someone who observes or perceives) expert. They were there. They personally observed what took place and formulated their own opinions as a result. A forensic scientist who participated in preparing the sample, reviewed the underlying machine data, and formed an independent opinion may testify to their own work. Put simply, there is a difference between a witness who did some of the work and a witness who only read another analyst’s file.
IV. Defense Strategy | Preserving the Record and the Right
Object early, specifically, and on the record. Frame the objection as Sixth Amendment, Crawford, Bullcoming, Smith. Renew the objection during voir dire, during direct examination by the state, and at any point the testimony shifts from independently reviewable evidence to absent-analyst assertions.
Build the appellate record. One can reasonably infer that, at least in part, the reason Phillips came out the way it did is that the SANE report and the substitute expert’s written opinion were not in the record on appeal. The NC Court of Appeals could not determine which portions of the absent nurse’s statements formed the basis of the substitute’s conclusion. Defense counsel should ensure that the original report, any written opinions by the substitute expert, contemporaneous notes, charting, and protocol documents are made part of the record. A complete record converts a record-driven affirmance into a Smith violation.
Voir dire the substitute aggressively. The point is not to qualify or disqualify. The point is to map the basis of the expert’s opinion and what materials they relied upon, consistent with Rule 703, particularly those involving work by other experts or analysts. What did the witness review? What did the witness independently verify? Which conclusions rest on the absent examiner’s assertions? Where the witness concedes reliance on absent-analyst statements for any element of the opinion, the Smith violation is established on the record.
Resist Rule 703 framing. Rule 703 is a North Carolina rule of evidence. It does not answer the constitutional question. The State may try to invoke “experts in the field reasonably rely on this kind of report.” Smith makes clear that reasonable professional reliance does not convert testimonial hearsay into something else, thereby making otherwise inadmissible evidence admissible. Rule 703 governs what an expert may consider; the Confrontation Clause governs what the jury may hear and credit.
V. Waiver| Forfeiture of the Right to Confront & Cross-Examine
Confrontation rights can be waived. That, obviously, is not a theoretical concern for criminal defense lawyers. The State regularly uses notice-and-demand procedures, stipulations, and unobjected-to testimony to present forensic evidence to a jury without calling the analyst who performed the work. The pressure can be substantial in DWI in North Carolina, especially on the Outer Banks, where travel time and analyst availability in places like Manteo make live testimony inconvenient for the prosecution.
A. Notice-and-Demand Statutes
North Carolina’s notice-and-demand statutes, N.C.G.S. 8-58.20 (forensic lab reports), N.C.G.S. 20-139.1(c1) (chemical analysis of blood or urine), N.C.G.S. 90-95(g) (drug chemical analysis), permit the State to give notice of intent to offer a forensic report. If the defense fails to demand the analyst’s appearance within the prescribed period, the report comes in without live testimony.
B. Stipulation
A stipulation to the admissibility of a lab report or to the substance’s identity waives confrontation. Stipulations have their place in appropriate circumstances. Sometimes the chemistry is not what the case is about, and stipulating focuses jury attention. The stipulation necessarily should be specific, deliberate, and reviewed against the full theory of defense.
C. Failure to Object
Plain error review is not a substitute for objection. Failure to object to substitute-analyst testimony at trial likely precludes appellate consideration of the confrontation issue.
VI. Remote Testimony as the State’s Alternative
When the original analyst is unavailable in person, the State’s possible alternative is remote testimony rather than a surrogate. Maryland v. Craig, 497 U.S. 836 (1990), permits testimony absent face-to-face confrontation when (1) denial is necessary to further an important policy interest and (2) reliability is otherwise assured. State v. Seelig, 226 N.C. App. 147 (2013), upheld two-way closed-circuit testimony from a forensic analyst who could not travel for health reasons. N.C.G.S. 15A-1225.3 sets forth the procedure for forensic analyst remote testimony.
For criminal defense purposes, remote testimony is generally preferable to substitute testimony. The original analyst can be cross-examined on what they did, how they did it, what they observed, and whether the testing was reliable. A substitute expert reading a file likely cannot answer those questions. When the State proposes a substitute because the original analyst has moved or changed jobs, defense lawyers carefully consider whether to insist on remote testimony from the original analyst rather than accept a surrogate.
VII. Frequently Asked Questions About Substitute Expert Testimony
Can the State use a different expert if the original analyst does not testify?
The State may call a different expert in some cases, but that witness cannot simply repeat or depend on the testimonial statements of an absent analyst. The courtroom question is whether the witness can give an opinion that stands on its own, or whether the opinion only works if the jury accepts another examiner’s notes, observations, measurements, or conclusions as true.
Is a lab report enough without the analyst who performed the test?
A lab report is not always enough by itself. If the report contains testimonial statements offered against the accused, the defense may have a Confrontation Clause objection unless the right has been waived through a notice-and-demand procedure, stipulation, or failure to object.
What is the difference between machine data and an analyst’s opinion?
Machine data is different from a human assertion. A machine does not become a witness, but an analyst’s observations, certifications, measurements, and conclusions may raise confrontation problems when the analyst does not testify. The issue is whether the testifying witness is explaining raw data or asking the jury to trust what someone else wrote, did, or concluded.
Can a substitute expert give an independent opinion?
A substitute expert may give an independent opinion when the witness can explain the basis for that opinion without relying on the truth of another examiner’s testimonial statements. Calling an opinion “independent” does not make it independent. The witness must be able to answer meaningful cross-examination about the evidence, the method, and the reasoning.
Why does a timely objection matter in substitute expert testimony?
A timely objection matters because Confrontation Clause issues can be waived. Notice-and-demand statutes, stipulations, and unobjected-to testimony can allow forensic evidence to reach the jury without the witness who performed the work.
Substitute Expert Testimony | Confrontation Clause in North Carolina
The Sixth Amendment guarantees the right to confront witnesses. Defense counsel regularly, as a matter of course, make the State produce its witnesses or live with the consequences.
Smith v. Arizona is not a procedural footnote. It is a structural correction to a workaround that North Carolina courts had built around the Confrontation Clause and the right to cross-examine witnesses and the basis of their opinions. The pre-Smith cases that prosecutors sometimes cite apply a Rule 703 basis-evidence rationale that the US Supreme Court has pretty clearly rejected. Phillips survives only on the photograph reasoning and only on a thin appellate record. The doctrinal direction is clear, and it favors the defendant who preserves the issue and builds the record.
If you’re facing criminal charges in northeastern North Carolina and your case involves forensic testing, lab reports, SANE examinations, medical records, or any expert witness who did not perform the original work, the questions raised in this article matter to your defense. Confrontation Clause issues are technical, fact-specific, and easy to waive without the right objections at the right time.
The Glover Law Firm in Elizabeth City represents clients in criminal matters across the region. If you have questions about substitute expert testimony or lab evidence, OBX defense lawyer Danny Glover is available for consultation. Call now 252-299-5300.