blankJonathan Holbrook

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Who Goes Last?

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In my previous post, I wrote about who goes first when presenting evidence at a suppression hearing or trial, and the circumstances under which the normal order of presentation could be changed. This post addresses the obvious follow-up question: who goes last?

In a routine (non-capital) jury trial, which side gets the all-important final word with the jury before they start deliberating?

The rule itself is simple and straightforward. If the defense offers any evidence, then the state gets the final argument (plus an opening address); if the defense does not offer any evidence, then the defense gets the final argument (plus an opening address). See G.S. 7A-97; N.C. Gen. R. Prac. Super. & Dist. Ct. 10.

That sounds pretty clear. But what exactly does it mean to say that the defense “offered evidence” at trial? That’s where things start to get a little more interesting.

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Who Goes First?

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The defense files a motion to suppress evidence in superior court, and the judge sets the matter for a hearing. The parties and their witnesses show up, ready to give testimony and make their arguments. The judge opens court and asks a simple question: “who’s going first, the state or the defense?”

A view I’ve often heard expressed is that the state has to go first, because even though it was the defendant’s motion which prompted the hearing, “the state always has the burden” and the party with the burden goes first.

That’s generally a correct statement about the burden of proof, but the corresponding rule about order of presentation is a little more… flexible.

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DNA Test Results: Probability vs. Fallacy

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The State of North Carolina goes to trial against Donnie Defendant, who is alleged to be the infamous “Tarheel State Killer” and charged with committing a series of brutal assaults and murders several decades ago. The state’s case depends heavily on matching DNA evidence from the crime scene to a sample of DNA taken off a cigarette butt discarded by Donnie. At trial, Special Agent Wanda Witness testifies as an expert in forensic DNA analysis for the state. After explaining the science behind PCR, STR, loci, and markers, Wanda opines that Donnie’s DNA is indeed a match to the DNA recovered from the crime scene.

Sounds like good news for the state, but what exactly does a “match” mean? And how may the significance or statistical probability of that “match” be expressed to the jury? It’s an important question, because what might sound like two similar ways of expressing the same probability can have dramatically different meanings – and possibly even be considered error on appeal.

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Surviving Your Next Sovereign Citizen

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This scenario will sound familiar to many criminal attorneys:  you’re in court, the DA calls the next case, and the judge asks John Q. Defendant how he pleads?

“Your Honor, I am not ‘JOHN Q. DEFENDANT,’ which is a fictional corporate entity. I am a natural living being, appearing pro per on behalf of John Q. Defendant, free citizen, for the limited purpose of challenging jurisdiction….” What follows next is a confusing series of questions to the judge about standing and injured parties, and quasi-legal arguments full of buzz words about the U.C.C., admiralty court, strawmen, right to travel, capital letters, red ink, fiduciaries, de facto government, accepted for value, etc. On and on and on it goes, for however long the court is willing to listen.

Yep, you’ve got a “sovereign citizen” on your hands.

Readers may have different opinions on the best way to handle these defendants in court (which I hope you will share in the comments), but I recommend taking the simplest approach of all: don’t play the game.

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Rule 803(6): Please Hold for the Next Available Representative…

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A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.

What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up.

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Prosecutor for Hire?

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Editor’s note: This is the first blog post by Jonathan Holbrook, who began working with the School of Government last July as our first Prosecutor Educator. Jonathan knows the field, having worked as a prosecutor for nearly 10 years, first in state court with the Wake County District Attorney’s Office, and then in federal court with the U.S. Attorney’s Office.  Please welcome him to the School – and to the blog.

I am truly honored to join the staff here at the School of Government, and excited to have this opportunity to help set the course for the new position of Prosecutor Educator. Over time, my role here will likely expand to include more training and advising, similar to the great work Phil Dixon currently does with defense attorneys in his capacity as the Defender Educator. But for now, my primary focus is on a large project related to the Prosecutors’ Trial Manual, which has not been updated since 2012. The manual is one of many works written and maintained by long-time faculty member Bob Farb, who retired from the School of Government last year. Rather than simply update and re-publish the existing manual, the School of Government (in consultation with an advisory committee of veteran prosecutors) is converting that material into a robust and searchable online knowledge base of North Carolina criminal procedure. This new resource will preserve the rich content and extensive research from the current manual, but in a format that is much easier to update, search, and navigate.

One of the benefits of engaging in this top-to-bottom revision of the old manual has been learning and re-learning all the nuts and bolts – and hidden gems – of North Carolina criminal procedure. The rest of this post focuses on an interesting topic that recently caught my eye, and which I think might be surprising to some readers as well.

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