A Useful Law Review Article

Like many lawyers, I served on a law review when I was a law student. It was a good experience: I became intimately familiar with the rules of legal citation, was exposed to some areas of law that I otherwise would not have been, and of course, burnished my resume. But most of the articles that we published were unimportant. They were too abstract, too theoretical. Most were not useful to practicing lawyers, and few had any impact on the development of the law. The same can be said of most articles published in most law reviews.

Nonetheless, a few diamonds lie among the coal. One of those is not an article at all, but actually a student note, Counting Offenses, by Jeffrey Chemerinsky. It recently appeared in the Duke Law Journal, and is available here.

The abstract begins by asking “Is a criminal defendant who discharges a weapon five times in rapid succession guilty of one crime or several crimes? This question of how to divide charges has vexed legal philosophers and Supreme Court Justices.” There’s no question that it has resulted in seemingly inconsistent cases in North Carolina. For example, State v. Maddox, 159 N.C. App. 127 (2003), holds that five shots fired in quick succession are a single assault, while the court in State v. Hagans, 188 N.C. App. 799 (2008), concluded that the defendant could have been charged separately for each shot he attempted to fire into a vehicle, even though several of the shots were in quick succession to one another.

Chemerinsky argues, among other things, that the rule of lenity should be applied when there is doubt about whether a defendant has committed several crimes or has engaged in a course of conduct that comprises a single offense. Whether you’re convinced by his argument or not, his note is a useful exploration of a recurrent issue, and should prove useful to practicing lawyers addressing this issue as part of a motion to dismiss.

1 thought on “A Useful Law Review Article”

  1. I take your point, but as to your example, a close reading shows that Hagans is not inconsistent with Maddox. The shots in Hagans were not in quick succession, and indeed, a pistol emerged from the car window on four separate occassions. See State v. Hagans, 177 N.C. App. 17, 19, 628 S.E.2d 776, 779 (2006). We know seven shots were fired in total, but we don’t know how much time separated each shot. Thus, the Court did not “conclude” in Hagans II that defendant could have been charged separately for each shot; it merely said “it is conceivable that defendant could have been indicted for six counts of attempted discharge of a firearm into occupied property.” State v. Hagans, 188 N.C. App. 799, 805, 656 S.E.2d 704, 708, disc. rev. denied, 362 N.C. 511, 668 S.E.2d 344 (2008). The Court made no conclusion, however, as such was not necessary to disposition of the appeal. Also, both Hagans and Maddox discussed the Nobles case, with the Maddox Court finding the facts distinguishable and the Hagans Court finding the case sufficiently analogous. It may seem like fine line-drawing, but Hagans and Maddox are not inconsistent.


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