This is Part II of a two-part blog discussing changes in the law surrounding criminal gang activity and gang enhancements brought about by House Bill 1173, S.L. 2026-37, Jaleeyah’s Law. Part I addressed new crimes codified by the law, elevated gang enhancements, and modified definitions of criminal gang activity and gang membership. Part II will address changes to evidence law brought about by the new law.
Rule 416, Evidence of Criminal Gang Activity
House Bill 1173 creates a new rule of evidence, Rule 416. This is the first time a new rule of evidence has been enacted in North Carolina since 2011, when the legislature enacted Rule 414, limiting evidence of medical expenses in civil cases (2011 was also the year that Rule 702 was overhauled to mirror the federal Daubert standard for expert testimony).
The new rule states that “[i]n any proceeding in which a person is accused of conducting, participating in, or conspiring to commit criminal gang activity, or in any proceeding under Article 13B of Chapter 14 of the General Statutes, evidence of the defendant’s commission of criminal gang activity may be considered for the purpose of proving any element of the alleged criminal offense.”
The new rule clearly allows the state to introduce prior evidence of criminal gang activity to prove up a criminal gang activity enhancement in the case at bar. However, the rule goes further, allowing the use of criminal gang activity evidence to prove “any element” of the alleged criminal offense. This potentially puts the new rule in tension with Rule 404(b), which prohibits the introduction of prior bad acts to show that the defendant acted “in conformity therewith.” Where a pattern of gang activity over time is fairly viewed as a “common plan or scheme,” the use of gang evidence may fit within traditional 404(b) exceptions, but where the state attempts to introduce disparate gang-related crimes to show a general propensity for wrongdoing, this would likely still be off limits despite the language of the new rule. Rules 401 and 403 also continue to prevent unduly prejudicial evidence from being admitted against the defendant where the probative value is minimal. My colleague, Joe Hyde, has set forth a helpful digest of cases dealing with the admission of gang evidence in a prior blog, and he points to other possible 404(b) exceptions that could apply in certain cases, such as proof of motive or identity. At this early juncture before the new rule is in effect, it is not altogether clear how it will be interpreted in conjunction with preexisting evidence rules and prior appellate decisions, but it arguably puts a finger on the scale toward admission.
It’s worth noting that the vast majority of states do not have special rules of evidence governing admission of criminal gang activity evidence, instead relying on more general rules such as Rule 401, 403, and 404 to determine the admissibility of such evidence. The rule appears to be modeled after a 2016 Georgia rule of evidence, O.C.G.A. § 24-4-418, which provides that evidence of criminal gang activity “shall be admissible” in cases involving allegations of participation in criminal gang activity and “may be considered for its bearing on any matter to which it is relevant” (this same language appeared in an earlier draft of Jaleeyah’s Law). See McKinney v. State,318 Ga. 566 (2024) (concluding that O.C.G.A. § 24-4-418 does not require that prior criminal gang activity evidence have a nexus between the activity and the criminal gang purpose, but that the rule is still “cabined” by other rules of evidence such as Rule 403); Upshaw v. State, 323 Ga. 257 (2026) (admitting an array of prior drug and gun crimes against co-defendants under the rule).
As a counterpoint, one might contrast the Georgia rule with recent developments in California, where lawmakers, apparently out of concern with the potentially prejudicial nature of gang evidence, created procedures to allow the defense to request a bifurcated trial in which gang evidence is presented in a separate proceeding after the jury determines guilt on the underlying crime. See A.B. 333, 2021–2022 Reg. Sess. (Cal. 2021). The California law also prohibits the use of the current criminal offense to establish a pattern of gang activity. See id.
Speaking of bifurcation, under current North Carolina law, left in place after Jaleeyah’s Law, determination of gang enhancements may be handled during the same trial as the substantive offense, or if the interests of justice require, be handled in a separate proceeding. See G.S. 15A-1340.16E(e) (referring to the process by which aggravating factors are handled under G.S. 15A-1340.16(a1)). The potential for prejudicial effect under Rule 403 is of course greater where the gang evidence is presented during the trial on the main criminal offense.
Fact and Expert Witness Testimony
Although not titled as a “rule,” the new legislation also contains a new evidence provision codified as G.S. 14-50.34. The statute provides that criminal gang activity may be proven “through the testimony of a fact witness, an expert witness, or a combined fact and expert witness.”
North Carolina courts have addressed the admission of evidence explaining how gangs operate in cases such as State v. Privette, 218 N.C. App. 459, 466-68 (2012) (trial court admitted extensive gang-related evidence regarding the history, codes, hierarchy, and symbology of a Bloods’ gang subset; testifying officer does not appear to have been tendered as an expert), and State v. Gayton, 185 N.C. App. 122, 124-27 (2007) (admission of gang-related evidence was deemed error, though not prejudicial). Also see State v. Johnson, 219 N.C. App. 651, No. COA11-1014, 2012 WL 1115915, at *2 (Apr. 3, 2012) (unpublished) (defendant argued to trial court that testimony tendered by “gang expert” on general characteristics of street gangs was an improper area for expert testimony, but appellate court deemed the argument abandoned on appeal).
Some courts have expressed concerns with a single witness testifying in a “dual” role as fact witness and expert witness, noting a risk that the jury might give the witness’s factual testimony “undue weight” in light of the witness’s “aura of special reliability” as an expert. See United States v. York, 572 F.3d 415, 425 (7th Cir. 2009); see also United States v. Dukagjini, 326 F.3d 45, 53 (2nd Cir. 2003) (expressing additional concerns related to the challenge of cross-examining the dual-role witness and the potential for the witness to improperly make “sweeping conclusions” about the larger investigation).
However, the new statute appears to condone the use of a “combined fact and expert” witness, and North Carolina courts have not articulated the same concerns as the federal courts noted above.
Effective Date. The provisions discussed above go into effect December 1, 2026, and apply to offenses committed (rather than trials held) on or after that date.
