The Statewide Misdemeanant Confinement Program took a hit this week in the court of appeals. In Richmond County Board of Education v. Cowell, about half of the money that comes into the program fund—the $50 fee for anyone found responsible for an improper equipment violation—was deemed to be punitive. Under the North Carolina Constitution, the money must therefore go to the public schools. Continue reading
Fake IDs were ever-present on campus when I was an undergraduate. There were several varieties: a “novelty” driver’s license obtained from a private vendor, a doctored version of the underage person’s real driver’s license, a duplicate driver’s license from an older relative, friend or acquaintance who resembled the underage person, or, the gold standard: a DMV-issued driver’s license with the underage person’s picture but an older person’s name, address, and birthdate. These days, on-line vendors hawk fake IDs, and facial recognition software makes it nearly impossible to obtain the gold standard fake ID from DMV. Otherwise, not all that much has changed in the collegiate fake-id market.
Often an underage person’s use of fraudulent identification leads to charges that are purely alcohol-related, such as the unlawful purchase or consumption of alcohol by an underage person. But other criminal charges may stem directly from the use of the fake ID. Continue reading
I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue. Continue reading
A caller recently asked me: Does Crawford apply at pretrial proceedings, such as suppression hearings and hearing on motions in limine? Neither Crawford nor any of the Court’s subsequent cases provide an answer for this simple reason: in all of the cases to reach the high Court, the defendant was challenging evidence admitted at the actual criminal trial. Nor do we have a North Carolina post-Crawford published case on point. However, a look at post-Crawford published cases from other jurisdictions shows that the overwhelming weight of authority holds that Crawford doesn’t apply in pretrial proceedings. In fact, there appears to be just one published case applying Crawford to such proceedings. Here are the cases:
Proceedings to determine probable cause
Peterson v. California, 604 F.3d 1166, 1169-70 (9th Cir. 2010) (in this §1983 case the court held that Crawford does not apply in a pretrial probable cause determination; “[T]he United States Supreme Court has repeatedly stated that the right to confrontation is basically a trial right.”); State v. Lopez, 314 P.3d 236, 237, 239 (N.M. 2013) (same; “The United States Supreme Court consistently has interpreted confrontation as a right that attaches at the criminal trial, and not before.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005 (Nev. 2006) (same); State v. Timmerman, 218 P.3d 590, 593-594 (Utah 2009) (same); State v. Leshay, 213 P.3d 1071, 1074-76 (Kan. 2009) (same); State v. O’Brien, 850 N.W.2d 8, 16-18 (Wis. 2014) (same); Gresham v. Edwards, 644 S.E.2d 122, 123-24 (Ga. 2007) (same), overruled on other grounds, Brown v. Crawford, 715 S.E.2d 132 (Ga. 2011); Com v. Ricker, __ A.3d __, 2015 WL 4381095 (Pa. Super. Ct. July 17, 2015) (same).
Notwithstanding this authority, it’s worthwhile to note that in North Carolina, while Evidence Rule 1101(b) provides that the rules of evidence, other than with respect to privileges, do not apply to probable cause hearings, the criminal statutes limit the use of hearsay evidence at those hearings. Specifically, G.S. 15A-611(b) provides that subject to two exceptions, “[t]he State must by nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule, show that there is probable cause to believe that the offense charged has been committed and that there is probable cause to believe that the defendant committed it.” The two exceptions are for (1) reports by experts or technicians and (2) certain categories of reliable hearsay, such as that to prove value or ownership of property. Id. at (b)(1) & (2).
State v. Rivera, 192 P.3d 1213, 1214, 1215-18 (N.M. 2008) (confrontation rights “do not extend to pretrial hearings on a motion to suppress”); State v. Woinarowicz, 720 N.W.2d 635, 640-41 (N.D. 2006) (same); Oakes v. Com., 320 S.W.3d 50, 55-56 (Ky. 2010) (same); State v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App. 2010) (same); State v. Williams, 960 A.2d 805, 820 (N.J. Super. Ct. App. Div. 2008) (same), aff’d on other grounds, 2013 WL 5808965 (N.J. Super. Ct. App. Div. Oct. 30, 2013) (unpublished); People v. Brink, 818 N.Y.S.2d 374, 374 (N.Y. App. Div. 2006) (same); People v. Felder, 129 P.3d 1072, 1073-74 (Colo. App. 2005) (same); Vanmeter v. State, 165 S.W.3d 68, 69-75 (Tex. App. 2005) (same); Ford v. State, 268 S.W.3d 620, 621 (Tex. App. 2008), rev’d on other grounds, 305 S.W.3d 530 (Tex. Crim. App. 2009).
Preliminary hearings on the admissibility of evidence
United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (Crawford does not apply to a pretrial hearing on the admissibility of evidence at trial; at the pretrial hearing, grand jury testimony was used to authenticate certain business records); State v. Daly, 775 N.W.2d 47, 66 (Neb. 2009) (same; Daubert hearing).
Pretrial release & detention determinations
United States v. Hernandez, 778 F. Supp. 2d 1211, 1219-27 (D.N.M. 2011) (confrontation clause does not apply at a pretrial detention hearing; “[T]he Supreme Court has consistently held that the Sixth Amendment is a trial right . . . .”); United States v. Bibbs, 488 F. Supp.2d 925, 925-26 (N.D. Cal. 2007) (“Nothing in Crawford requires or even suggests that it be applied to a detention hearing under the Bail Reform Act, which has never been considered to be part of the trial.”); Godwin v. Johnson, 957 So. 2d 39, 39-40 (Fla. Dist. Ct. App. 2007) (“The confrontation clause of the Sixth Amendment expressly applies in ‘criminal prosecutions.’ . . . [T]his does not include proceedings on the issue of pretrial release.”)
Proceedings to determine jurisdiction under federal law
United States v. Campbell, 743 F.3d 802, 804, 806-08 (11th Cir. 2014) (holding that Crawford does not apply to a pretrial determination of jurisdiction under the Maritime Drug Law Enforcement Act; “[T]he Supreme Court has never extended the reach of the Confrontation Clause beyond the confines of a trial.”); United States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011) (same).
The only contrary authority that I found in the published case law is one Texas decision, that creates a split among sister courts on the issue. See Curry v. State, 228 S.W.3d 292, 296-298 (Tex. App. 2007) (disagreeing with Vanmeter, cited above, and holding that the confrontation clause applies at pretrial suppression hearings). If you know of other law on point, please chime in!
Colorado movie theater shooter James Holmes has been sentenced to 12 life terms plus 3,378 years in prison. He did not receive the death penalty due to the vote of a single holdout juror. CNN’s stories about the sentencing hearing are here and here; the statements from the surviving victims and the families of the deceased are difficult to read. Continue reading
Two revisions to North Carolina’s primary jail credit statute, G.S. 15-196.1, will kick in on December 1, 2015. Both of them benefit defendants. Continue reading
School is back in session across North Carolina, but many high school students and their parents may be disappointed that driver’s education is not. Driver’s education has long been a staple of the high school experience in this state. I vividly recall my afternoon class in the Northwood High School auditorium with driving instructor Ed Kitchen. I can see him now with his foot perched by the passenger-side brake as we drove the rural roads of Chatham County. What has interrupted this rite of passage at some North Carolina high schools? Continue reading
As I discussed here, the Fourth Circuit recently ruled in United States v. Graham, __ F.3d __, 2015 WL 4637931 (4th Cir. Aug. 5, 2015), that an officer who obtained two suspects’ cell site location information (CSLI) without a search warrant violated the Fourth Amendment. (The officer used a court order based on a lower standard, as purportedly authorized by the relevant federal statute, 18 U.S.C. § 2703(d).) I’ve had a number of practical questions about Graham from officers, agency attorneys, and judges, and I thought that I would collect some of the questions here. Continue reading
Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues. Continue reading
All eyes are on Charlotte this week. Former CMPD officer Randall “Wes” Kerrick is on trial for voluntary manslaughter in connection with the shooting of Jonathan Ferrell. I have not followed the trial closely but some have suggested that the evidence came in more favorable to the defense than was generally expected pretrial. The jury has now deliberated for more than two full days without reaching a verdict. However, no Allen charge has yet been given. The Charlotte Observer has a useful Q-and-A about the case and the prospects for a verdict here. If the jury hangs, the next question would be whether the State would retry Mr. Kerrick. Continue reading