In McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018), the US Supreme Court held that a defendant’s Sixth Amendment counsel right was violated when trial counsel admitted guilt over the defendant’s intransigent objection. In this post, I’ll discuss what impact, if any, McCoy has on North Carolina law. Continue reading
Blog Archives
Under the Crawford Confrontation Clause rule, testimonial statements by witnesses who aren’t subject to cross-examination at trial can’t be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. Smith, A Guide to Crawford and the Confrontation Clause, in NC Superior Court Judges Benchbook (UNC School of Government Aug. 2015). In the Davis case, the US Supreme Court set out a two-part rule for determining whether or not statements are testimonial for purposes of the Confrontation Clause: Continue reading →
Category: Evidence, Uncategorized | Tags: confrontation clause, miller, supreme court of north carolina, testimonial
Organizations around the country have called for bail reform. Here at home, a report by the North Carolina Commission on the Administration of Law and Justice recommended that North Carolina move forward with pretrial justice reform. A recent Fifth Circuit case holding that the bail system in Harris County, Texas violates due process and equal protection may create an impetus for jurisdictions to act: Litigation risk. Continue reading →
Category: Procedure, Uncategorized | Tags: bail, bond, due process, equal protection, fifth circuit, odonnell, pretrial release
I wrote a post (here) about the recorded recollection exception to the hearsay rule, in which I noted that this exception often is confused with the technique of present recollection refreshed under Evidence Rule 612. We see a little of that in the recent court of appeals decision, State v. Brown. Let’s take a look. Continue reading →
Category: Evidence | Tags: Evidence, hearsay, present recollection refreshed, recorded recollection, york
Sometimes the crime is caught on video. When this happens, can an officer identify the perpetrator as the defendant? This issue came up in State v. Weldon, a recent court of appeals case. Let’s go through the rules. Continue reading →
Category: Evidence, Uncategorized | Tags: belk, identification, identity, lay opinion, surveillance video
A few years ago, I wrote a blog post (here) about the corpus delicti rule. That rule popped up in a recent court of appeals case, State v. Messer. Here’s a refresher and an update on the new case. Continue reading →
As many blog readers know, I’ve been offering my free Criminal Case Compendium since 2008. The Compendium is a collection of U.S. Supreme Court, Fourth Circuit & published N.C. criminal law, procedure and evidence case summaries, arranged by subject. Until now, folks have accessed the Compendium online as a massive 900-page PDF, containing over 3,000 case summaries. That worked okay, but we knew we could do better. And we have. My Criminal Case Compendium has just been re-released in a new format: A dynamic web-based version, designed to help you find the law you need even faster. The robust search feature puts real power behind your keyword search, sorting cases by relevancy. And if you like navigating through a table of contents, that’s still there, only amped up a few notches on the “usability scale.” Continue reading →
Category: Uncategorized | Tags: compendium
In June, the United States Supreme Court granted certiorari in Carpenter v. United States (No. 16-402) (docket here), a case involving the intersection of technology and the Fourth Amendment and application of the third-party doctrine to digital data. In this post I’ll preview that case. Continue reading →
Some offenses can be proved by alternative theories. For example, impaired driving occurs when a person drives while (1) while under the influence of an impairing substance, (2) after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of 0.08 or more at any relevant time after the driving, or (3) with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime (7th ed. 2012). The three options noted above constitute three separate theories upon which an impaired driving conviction can rest. Similarly, kidnapping occurs when a person (1) confines, (2) restrains, or (3) removes a person and other elements are satisfied. Id. The three options—confines, restrains, or removes—constitute three separate theories upon which a kidnapping conviction can rest. Sometimes alternative theories are bound up in the definition of an element of an offense. For example, first-degree sexual assault with a child requires, among other things, that the defendant engage in a “sexual act” with the victim. Id. The term sexual act is defined to include, in part, (1) cunnilingus, (2) analingus, (3) fellatio, and (4) anal intercourse. Id. These acts constitute separate theories that can support a sex offense conviction. Continue reading →
Category: Crimes and Elements, Procedure, Uncategorized | Tags: fowler, jury instructions, martinez, theories
In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180. Continue reading →
Category: Procedure, Uncategorized | Tags: cholon, elements, harbison, ineffective assistance of counsel
