It is a new year, and there are new rules for determining the term of office for a district court judge appointed to fill a vacancy.
Shea Denning
S.L. 2021-182 Amends Ignition Interlock Requirements
S.L. 2021-182 (S 183) enacted significant changes to the laws that require certain persons convicted of driving while impaired to have ignition interlock installed on their vehicles. Those changes include: (1) eliminating the 45-day delay for a limited driving privilege to become effective, (2) requiring that ignition interlock be installed only on the vehicle or vehicles the person drives rather than all the vehicles the person owns, (3) requiring that ignition interlock vendors waive a portion of ignition interlock costs for qualified persons, (4) removing the time and purpose restrictions on a limited driving privilege if a person has ignition interlock, (5) changing the alcohol concentration restrictions for ignition interlock from 0.04 and 0.00 to a universal standard of 0.02; and (6) directing a legislative committee to study ignition interlock expansion and related issues.
Case Summaries — N.C. Court of Appeals (December 7, 2021)
This post summarizes published criminal and juvenile delinquency decisions from the North Carolina Court of Appeals released on December 7, 2021. These summaries will be added to the School’s Criminal Case Compendium.
Remote Testimony by Lab Analysts Authorized in District Court Prosecutions – Even Without Defendants’ Consent
The United States Supreme Court held in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that sworn forensic reports prepared by laboratory analysts for purposes of prosecution are testimonial statements, rendering their authors – the analysts – witnesses for purposes of the Sixth Amendment. A defendant has the right to be confronted with such a witness at trial, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. The upshot is that the State generally may not introduce these kinds of forensic reports in a criminal trial without calling the analyst to testify in person.
Since 2014, G.S. 15A-1225.3 and G.S. 20-139.1 have permitted forensic and chemical analysts to testify remotely in a criminal or juvenile proceeding via a means that allows the trier of fact and the parties to observe the analyst’s demeanor in a similar manner as if the analyst were testifying in the location where the hearing or trial is being conducted. Both statutes, however, have permitted such remote testimony only in circumstances in which the defendant fails to object to the analyst testifying remotely, thereby waiving the right to face-to-face confrontation.
This legislative session, the General Assembly amended G.S. 15A-1225.3 and G.S. 20-139.1 to authorize remote testimony by analysts in district court criminal proceedings regardless of whether the defendant objects.
These amendments become effective January 1, 2022 for criminal proceedings beginning on or after that date.
Interim Pattern Jury Instructions for Substitution of Alternate Jurors Are Available
This legislative session, the General Assembly amended G.S. 15A-1215(a), effective October 1, 2021, to permit an alternate juror to replace a regular juror after deliberations have begun. S.L. 2021-94 (discussed in more detail here). The North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions has created a new instruction for judges to utilize when substituting an alternate juror after deliberations have begun and has amended the existing closing pattern instruction to ensure that alternate jurors refrain from discussing the case with anyone until they are discharged from service. The revised interim instructions are available here.
Report from Sentencing Commission Analyzes DWI Dispositions in 2020
Recently I was asked to teach about sentencing in impaired driving cases. I thought the audience might want to know not just the law governing sentencing for impaired driving but also what sentences typically are imposed in those cases. For the latter, I turned to the North Carolina Sentencing and Policy Advisory Commission’s Fiscal Year 2020 Statistical Report on Driving While Impaired convictions. There one can find information about the percentages of impaired driving convictions sentenced at each of the six levels of punishment under G.S. 20-179, the types of sentences imposed by sentencing level, average sentence length for active and suspended sentences, and the average days of special probation (imprisonment) ordered by punishment level — among other data. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2019 through June 30, 2020.
Annual Report from the North Carolina Judicial College
The North Carolina Judicial College was founded in 2005 to expand the education and training the School of Government has provided for judicial branch officials since the 1930s. Judicial College funding has enabled the School to provide more courses for a growing court system and to offer training in small group, interactive educational settings. Our latest … Read more
New Reporting Requirements for Giglio Notifications
Last November, I blogged about recommendations from the North Carolina Sheriffs’ Association for legislation that would enable hiring authorities, certifying commissions, and state prosecutors to learn of misconduct by officers, including untruthfulness, that would impair an officer’s credibility as a witness in a criminal prosecution and which must be disclosed to the defense. This type of information often is referred to as Giglio material, adopting the name of the first U.S. Supreme court case to apply a disclosure requirement to evidence relevant to impeaching a government witness, Giglio v. United States, 405 U.S. 150 (1972).
This session, the General Assembly enacted legislation implementing some of the Association’s recommendations. Among the changes enacted by S.L. 2021-137 (S 536) and S.L. 2021-138 (S 300) are requirements that the certifying commission for an officer be notified when the officer is informed that he or she may not be called to testify at trial based on bias, interest, or lack of credibility. If the officer transfers to a new agency, the Criminal Justice Standards Division (in the case of State, municipal, company, and campus officers) or the Justice Officers’ Standards Division (in the case of deputy sheriffs, detention officers, and telecommunicators) must notify the head of the new agency and the elected district attorney in the prosecutorial district where the agency is located that the person has been previously notified that the person may not be called to testify at trial.
Case Summaries — N.C. Supreme Court (September 24, 2021)
This post summarizes criminal decisions released by the Supreme Court of North Carolina on Friday, September 24, 2021.
General Assembly Amends Rules for Disclosure of Body Cam Recordings
North Carolina’s law governing the disclosure and release of body-worn camera footage took center stage last spring following the shooting of Andrew Brown in Elizabeth City. John Rubin wrote here about litigation on that issue, noting that one prominent feature of the statutory scheme was that determining matters of disclosure and release “takes time.” This session, the General Assembly amended the rules governing disclosure of recordings that depict death or serious bodily injury to require (1) that a court determine whether a recording be disclosed; and (2) that the court make such a determination within seven business days of the filing of a disclosure petition. This post will review those changes.