blankShea Denning

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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.

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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.

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New Requirement that Law Enforcement Officers Intervene and Report Excessive Use of Force

The North Carolina Task Force for Racial Equity in Criminal Justice recommended in a 2020 report that state and local law enforcement agencies enact policies requiring officers to intervene in and report about circumstances in which a law enforcement officer witnesses excessive use of force or abuse of a suspect or arrestee. The North Carolina Sheriff’s Association similarly recommended in a 2020 report that all law enforcement agencies and the North Carolina Law Enforcement Accreditation Program adopt a policy requiring an officer to intervene when necessary to prevent another officer from using excessive force and to report any such intervention. This session, the General Assembly imposed such duties as a matter of state law rather than agency policy. This post will discuss current statutory law governing officer’s use of force and recent amendments enacted by S.L. 2021-137 (H 536) and S.L. 2021-138 (S 300).

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Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments

Author’s Note:  The opinion discussed below was reversed by the North Carolina Supreme Court in State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023). The North Carolina Supreme Court’s opinion is discussed here. 

The first sentence of State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021) sums up the issue:  “When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it.”

Even after I read it that straightforward statement, I questioned my understanding. This rule struck me as inconsistent with recent caselaw holding that the violation of statutory pleading rules for prior convictions does not deprive the trial court of jurisdiction. See State v. Brice, 370 N.C. 244 (2017). But (ipso facto) that is the rule for felon in possession indictments, which prosecutors ignore at the case’s peril.

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An Update on Caitlyn’s Courage DV Prevention Pilot

Last year, the General Assembly appropriated $3.5 million from federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding to the Department of Public Safety to be used as a grant for Caitlyn’s Courage, Inc. See S.L. 2020-80 as modified by S.L. 2020-78. The non-profit was to use the funds to conduct pilot programs in at least nine judicial districts through which it would provide GPS electronic monitoring devices to be used as a condition of pretrial release for defendants charged with crimes related to stalking, sexual assault, domestic abuse, and violations of a domestic violence protective order. The legislation directed Caitlyn’s Courage to report back to the General Assembly on the effectiveness of the programs and on recommendations for expansion. This post discusses the Caitlyn’s Courage programs, reviews highlights from its April 2021 report to the legislature (“the Report”), and cites a legislative proposal to allocate substantially more funding to expand this type of programming statewide.

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The Judicial Standards Commission and Judicial Discipline

Judgeships in North Carolina’s trial and appellate courts are elected offices. Thus, it often is said that the ballot box is the mechanism for holding the state’s judicial officials accountable. There is, however, another way in which judges may be held to account for misconduct: through disciplinary proceedings initiated by the Judicial Standards Commission. Those proceedings led to the North Carolina’s Supreme Court’s imposition of public discipline for three judges in 2020 and two more judges in 2021. The Judicial Standards Commission’s recently released annual report describes the nature of its work, its composition, and its increasing workload.

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Warrantless Home Entry After Lange v. California

A few weeks ago the United States Supreme Court decided Lange v. California, 594 U.S. ___, ___ S. Ct. ___ (June 23, 2021), holding that the flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Today’s post reviews how Lange fits into the landscape of Fourth Amendment cases establishing when an officer may forcibly enter a suspect’s home without a warrant.

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