The North Carolina Supreme Court held in State v. McGrady, __ N.C.___ (June 10, 2016), that Rule 702(a) of the North Carolina Rules of Evidence incorporates the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That’s what the court of appeals had already said, so it isn’t a big surprise. In McGrady, the application of Daubert led the state supreme court to conclude that the trial court did not err in excluding testimony from an expert in law enforcement training about the defendant’s conscious and unconscious responses to a perceived threat from the victim. McGrady’s analysis opens the door for reconsidering the admissibility of many types of expert testimony previously admitted as a matter of course, including expert testimony from law enforcement experts involving scientific and medical principles.
Shea Denning
The Right to Life, Liberty, and Fifteen Additional Days to Renew Your Registration
Before I became a lawyer, I finished everything ahead of time. Term paper? Completed two weeks early. Trip? Packed a week in advance. Taxes? Filed in February. Alas, those days are nearly two decades behind me. Now I squeak in just under the wire with everything I do—including my weekly blog posts. I could proffer a host of reasons, but don’t think I need to so long as I meet the deadline. My modus operandi may explain why I was particularly troubled by the traffic stop in State v. Baskins, ___ N.C. App. ___ (May 17, 2016).
Lessons Learned on Vacation: 2016 Edition
Memorial Day weekend isn’t technically the beginning of summer, but it feels like it. Temperatures rise and many families head east toward water on Friday afternoons. That’s what my family did last Friday. Given that I try to stay reasonably informed about the law and I read my local paper, I thought I was well prepared to keep all of us on the beach and out of the slammer through the course of the weekend.
It turns out that there are a lot of rules that responsible adults and parents can break on vacation. I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules. I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning. I’ve written about a few of these rules before. And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts. But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.
A political science professor, a civil rights lawyer and a police chief walk into a classroom . . .
I haven’t figured out the punch line to this joke. It was my opening line for a traffic stops session taught last month in the special topics seminar, Race Issues in the Courts, by UNC Professor Frank Baumgartner, Southern Coalition for Social Justice Staff Attorney Ian Mance, and Fayetteville Police Chief Harold Medlock. One reason that it is hard to finish the joke is that these three were on the same page, which is somewhat surprising given the roles they occupy.
I immediately thought of that talk yesterday when I saw this News and Observer photograph of United States Attorney General Loretta Lynch standing next to Chief Medlock. Lynch traveled to Fayetteville as part of her nationwide community policing tour. She chose Fayetteville in part because of the work the presenters discussed at our April conference.
Blanket Objection by State to Fact-Findings Sufficient to Trigger De Novo Review in DWI Case
If you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9. Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges: The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.
So that’s the rule. Unless the senior resident superior court judge says otherwise. You’re going to have to read the rest of this post to make sense of that.
Is it Legal to Keep a King Cobra as a Pet?
When news broke last week that 21-year-old Orange County resident Ali Iyoob had been bitten by his “pet” King Cobra, I had three thoughts.
- Who has a pet King Cobra?
- Where does one find a King Cobra to keep as a pet?
- It can’t be legal to have a King Cobra in your house. Can it?
The first question is obviously rhetorical. The answer to the second question is: the internet (of course). To answer the third question, I had to do a little research (on the internet, of course).
Deadly Force and Resisting a Public Officer
The N&O series: Deadly Force. Today the News and Observer published the last article of its four part investigative series Deadly Force, a series that chronicles numerous physical confrontations between Harnett County sheriff’s deputies and citizens and the deaths and injuries that resulted.
Only Experts Can Testify About HGN
Author’s note: I added the conclusory paragraph at the end of this post shortly after its initial publication in response to helpful questions from readers about the significance of State v. Godwin and State v. Torrence.
Like Supercalifragilisticexpialidocious, horizontal gaze nystagmus is a mouthful. Unlike Supercalifragilisticexpialidocious, not just anyone can utter horizontal gaze nystagmus and sound wise beyond her years. Two recent court of appeals opinions hold that that a witness be qualified as an expert before testifying about the results of a horizontal gaze nystagmus test.
Warrant Required for Testing of Unconscious DWI Suspect
The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.
Bartenders’ Duty to Cut Off Service to Intoxicated Patrons
Servers who work for restaurants and bars that sell alcoholic beverages pursuant to an ABC permit are prohibited by G.S. 18B-305(a) from knowingly selling or giving alcoholic beverages to a person who is intoxicated. Violation of this provision is a Class 1 misdemeanor and may result in suspension of the establishment’s ABC permit. In cases where overserving results in injury, the restaurant or bar also may be liable for the damages that result. I’ve often wondered how servers know when to say when. After all, they are engaged in the business of selling alcoholic beverages—drinks that affect the brain functioning of everyone who consumes them. When does the statutory duty override their business interests?