The Confidential Informant File: What Is It and When Must It Be Disclosed to the Defense?

I recently completed a series of posts on issues surrounding confidential informants (“CI’s”), discovery, and motions to reveal the CI’s identity. In this “bonus” post, I will discuss a related question: what is the “CI file” and when must the State turn it over to the defense? Let’s say the defense is successful in compelling … Read more

News Roundup

This morning, President Biden announced that he will commute the sentences of nearly 2,500 inmates serving long prison terms for nonviolent drug offenses. The commutations are for offenders who received harsher sentences for drug crimes than they would have under current law and practice. Over the past two decades, Congress has passed legislation to rectify sentencing disparities and practices that disproportionately affected Black people and fueled mass incarceration, such as the now-discredited distinction between crack and powder cocaine. In his statement, Biden said “as Congress recognized through the Fair Sentencing Act and the First Step Act, it is time we equalize these sentencing disparities.” The commutations are the latest use of clemency power by President Biden, following the full pardon of his son Hunter, commuting the sentences of nearly all federal death row prisoners, and commuting the sentences of nearly 1,500 individuals moved to home confinement during the pandemic. Read on for more criminal law news.

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Justice Riggs, Seat 6, and Holdover Status

In September 2023, then-Governor Roy Cooper appointed Allison Riggs to fill a vacancy on the North Carolina Supreme Court created by the retirement of Associate Justice Michael Morgan. As an appointee, Associate Justice Riggs was eligible to hold the seat (Seat 6) until January 1 following the next general election held more than 60 days after the vacancy occurred. In Riggs’ case, that election was held on November 5, 2024. In the normal course of events, the results of that election would have been certified in December 2024 and the prevailing candidate would have taken office on January 1, 2025. The election did not, however, follow the usual path.

The vote tally for Seat 6 was unusually close. After a recount, Riggs maintained a slim 734 vote lead over her challenger, current Court of Appeals Judge Jefferson Griffin. Judge Griffin filed election protests challenging votes cast by more than 60,000 individuals, alleging on various grounds that these persons were ineligible to vote in this election. The North Carolina State Board of Elections (“State Board”) assumed jurisdiction over Griffin’s protests and rejected his challenges. Griffin thereafter sought relief from the North Carolina Supreme Court, and the State Board removed the matter to federal court. The federal court abstained from reaching the merits and remanded the matter to the North Carolina Supreme Court on January 6. The next day (three days before the State Board was to certify the election results) the state supreme court granted Griffin’s motion for a temporary stay barring the State Board from certifying the results.

There is a lot in this situation to unpack, but I wanted to address a top-line issue: Given that the election has not been certified, who holds Seat 6? And what happens for other elected and appointed officers when their terms expire and no successor has yet been elected and qualified or appointed?

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2025 Expunction Guide Available for Free!

With a teaser like that, who could resist reading more? The 2025 edition of my online guide to expunctions is now available on the School of Government’s website at https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/. It is a free resource on expunctions and other forms of relief from the consequences of a criminal conviction. Compared to previous years, the 2024 legislative session was relatively quiet on the expunction front, but the General Assembly made some important changes, discussed briefly below and in more detail in the revised guide.

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Unilateral Conspiracy and Money Laundering

North Carolina is a bilateral conspiracy jurisdiction. Defining conspiracy as a combination of two or more persons to do an unlawful thing means that if the only other participant is an undercover officer or an informant – that is, one who lacks criminal intent – then there is no conspiracy. Under a new statute effective December 1, 2024, however, it is no defense to conspiracy to commit money laundering that the person with whom the defendant is alleged to have conspired was a law enforcement officer or acting at the direction of a law enforcement officer. G.S. 14-118.8(i). The new statute thus adopts the unilateral approach to conspiracy taken by the Model Penal Code and some other states. This post considers the new statute and its innovation in the law of conspiracy.

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News Roundup

In the waning weeks of his four-year term, President Biden announced commutations of 37 of 40 federal death sentences. With the exception of three individuals convicted of crimes involving “terrorism” or “hate-motivated mass murder,” Biden decided that the remaining federal death row prisoners should receive sentences of life without the possibility of parole. In 2021, Biden declared a moratorium on federal capital punishment to study protocols, and before that, he pledged action to end the death penalty at the federal level. The families of the victims reacted to the commutations with a range of emotions.

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Calendaring Offenses Involving Seized Motor Vehicles

Law enforcement has authority to seize a person’s motor vehicle in several circumstances. Motor vehicles may be seized as evidence of a crime or for containing evidence of a crime, or as a consequence of being charged with certain offenses, including specified drug offenses, larcenies, and motor vehicle offenses. For some individuals charged with impaired driving or felony speeding to elude arrest, their vehicles may be seized and are subject to forfeiture pursuant to G.S. 20-28.3. In these cases, subsection (m) requires expedited scheduling and imposes additional requirements before the case can be continued. This post examines when subsection (m) applies, what it requires, and what may happen if it’s not followed.

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