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News Roundup

The violence that erupted in Charlottesville, Virginia, when counter-protesters clashed with hate groups demonstrating in opposition to the city’s removal of a statue of Robert E. Lee is one of the biggest news stories of the year.  As the demonstration dispersed, an Ohio man, James Alex Fields Jr., drove his car into a crowd of counter-protesters, killing one woman, Heather Heyer, and injuring many others.  In a separate incident, two Virginia State Police officers monitoring the situation, H. Jay Cullen and Berke Bates, were killed in a helicopter crash.  The Charlottesville violence and the responses to it are sobering reminders of America’s continuing struggle with racial and ethnic hostility.  Keep reading for more news.
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The Rape Shield Statute: Its Limitations and Recent Application

North Carolina adopted a rule in 1979 to limit the introduction of evidence about the sexual behavior of an alleged victim in criminal trials for rape and other sexual offenses. Before that so-called rape shield rule was enacted, evidence of prosecuting witness’s general reputation for unchastity could be introduced in a rape trial to attack the witness’s credibility and to show the likelihood of his or her consent. See, e.g., State v. Banks, 295 N.C. 399 (1978), overruled on other grounds, State v. Collins, 334 N.C. 54 (1993).

A 1977 report on sexual assaults by the Legislative Research Commission recommended adoption of the rape shield rule “to improve the conduct of sexual assault prosecutions” in the state. Detailed Comments on Draft Law, Legislative Research Commission, Report to the 1977 General Assembly of North Carolina: Sexual Assaults 86 (1977). The commission explained that such prosecutions were “too often conducted in a way that embarrasses or intimidates the victim beyond the defendant’s legitimate interest in a fair trial.” Id. The “chief evil” was the “use of evidence of irrelevant sexual behavior to influence the court and jury, not because it is logically related to any material issue in the proceeding, but because it creases prejudice against the person whose sexual behavior is so demonstrated.” Id. The rule adopted in 1979 is codified in substantially the same form today as Rule 412 of the North Carolina Rules of Evidence.

Nearly forty years after its adoption, the appellate courts continue to refine the scope of the rape shield statute. Several recent cases explore the rule’s limitations and the analysis a trial court must employ when a defendant charged with a sexual offense seeks to admit evidence regarding the prosecuting witness’s sexual conduct.

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State v. Huddy and the Community Caretaking Exception

Huddy, ___N.C. App. ___, 799 S.E.2d 650 (April 18, 2017) was decided earlier this year and reversed the trial court’s denial of a motion to suppress. A unanimous Court of Appeals found that the search of the defendant’s home was not justified under either the knock and talk doctrine or the community caretaking exception to the warrant requirement. The knock and talk portion of the opinion is interesting (indeed, the concurring opinion is devoted solely to that topic) and invalidates the search on those grounds, but I wanted to focus on the community caretaking aspect of the opinion. Jeff previously blogged about the community caretaking exception to the warrant requirement here. Huddy doesn’t answer all of the questions raised in that post about the exception, but the opinion sheds some light on its scope and shows the balancing test for the exception in practice. Continue reading

DVPOs for Same-Sex Dating Relationships?

Domestic violence protective orders (DVPOs) are available to “persons of the opposite sex who are . . . or have been in a dating relationship,” and who are able to establish that the person that they are or were dating committed an act of domestic violence against them. Persons of the same sex who are or were in a dating relationship don’t have the same opportunity. Is that constitutional? The Supreme Court of South Carolina just addressed a related question, and its opinion suggests that the answer is no. Continue reading

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News Roundup

WRAL reports that the ordeal of a Raleigh bar owner accused of attempting to smuggle drugs out of Honduras ended Thursday when Amanda Laroque landed at RDU.  Laroque was detained by Honduran authorities last month when she went through airport security carrying a “can safe,” a fake drink can that is used to hide valuables.  Honduran authorities accused Laroque of trying to smuggle drugs out of the country and jailed her.  Tests later revealed that the can safe did not contain drugs, and, after spending several nights in a jail called “the cage,” Laroque was allowed to return to North Carolina.  Keep reading for more news.
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New Notice Requirements for Waivers and Remissions of Certain Monetary Obligations

On December 1, 2017, two new rules will kick in for waivers and remissions of costs, fines, and restitution. Today’s post offers some preliminary thoughts on those new rules. Continue reading

To 404(b) or Not to 404(b)

My ten-year-old daughter asked me a few weeks ago what O.J. Simpson had done. Like the rest of America, she heard news of his parole hearing. What she couldn’t figure out is why people were so interested in when he would be released from jail.  I told her about the hotel room and the sports memorabilia. And then I told her about the murders of Nicole Brown Simpson and Ron Goldman. (Don’t judge me: She has older brothers and she has watched so many episodes of Criminal Minds that the damage is already done.) I told her that a great many people thought O.J. had gotten away with murder; that’s why some thought he should stay in jail. With O.J., as with nearly everyone tried in the court of public opinion, allegations of other bad behavior shape the public’s perception of the person’s current predicament.

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A Change to Probation’s Policy on Ordinary Extensions

If you’ve noticed an uptick in probation hearings on extensions, today’s post may help explain why. As of last month, Community Corrections will no longer seek ordinary extensions of probation without notice and a hearing. In other words, they will no longer seek “in chambers” extension orders, even when the defendant consents to them. Continue reading

Immigration Detainers

Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release — for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed — and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too. Continue reading

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News Roundup

As the Washington Post reports, the Senate confirmed Christopher A. Wray as Director of the Federal Bureau of Investigation earlier this week.  Wray served as Assistant Attorney General in charge of the Criminal Division of the Justice Department from 2003 to 2005.  At the Justice Department, Wray worked under former FBI director James Comey who was serving as Deputy Attorney General during that time.  Wray was confirmed with bipartisan support, and was sworn in by Attorney General Jeff Sessions on Wednesday.  Keep reading for more news.
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