Daniel Spiegel

Common Character Evidence Questions in Self-Defense Cases

Character evidence is one of the most challenging areas of evidence law to navigate, as Jessie Smith observes here. Jessie’s blog features a useful chart to apply Rules 404 and 405 and also links to the bench book chapter.

I find it helpful to see these rules in action with concrete examples. A common context in which the character evidence rules come into play in criminal cases is self-defense cases. This post discusses several common questions that arise, as well as some adjacent issues.

Let’s use a simple hypothetical:

The defendant is charged with shooting the victim outside of a bar after an argument about whether the victim approached the defendant’s girlfriend. The defendant claims that the victim came at him first with a knife.

The questions below deal with what the defendant can elicit about the victim and what the State can elicit about the defendant. As we work through the examples, remember that Rule 404 addresses when character evidence is admissible or inadmissible, and Rule 405 addresses the method of proof for the character evidence (reputation/opinion evidence or specific instances of conduct).

Rules 404 and 405 are included at the end of the post for reference.

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News Roundup

Two immigration enforcement bills have passed at the General Assembly and are now on Governor Josh Stein’s desk. The deadline for his signature or veto is today.

The first bill, SB 153, contains several provisions, one of which would require state law enforcement agencies such as the State Highway Patrol and the Department of Public Safety to contact ICE if they have someone in custody who is not a legal resident or U.S. citizen. State law enforcement officers would be trained to act as immigration officers pursuant to the 287(g) program.

The second bill, HB 318, makes updates to the previously passed HB 10. Existing law, discussed by Brittany here, requires county jails to inquire into the immigration status of individuals charged with certain felonies and high-level misdemeanors and contact ICE if the jail is unable to verify that an individual is a legal resident. The new law would expand the list of crimes for which jails would have to check status. In addition, existing law mandates that a 48-hour hold be imposed upon receipt of an ICE detainer.  The updated law would require that the 48-hour hold be imposed once the individual would otherwise be released, rather than upon receipt of the detainer.

Read on for more criminal law news.

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The Prior Record Level Worksheet with Missing Convictions: A Persistent Ethical Dilemma

Suppose you are a defender representing a client charged with Possession of Firearm by Felon. You receive a plea offer in the case, along with the AOC-CR-600B, the “Worksheet” regularly used for calculating the Prior Record Level (PRL) before sentencing. You review the worksheet and notice that it makes no reference to a prior felony conviction for which your client served prison time. You know of this missing conviction because you regularly verify the information the State provides to you, and you saw the conviction in the relevant database. You also discussed the conviction with your client when interviewing him about his past experiences and record in prison. Without the prior conviction, your client would be sentenced as a PRL III for felony sentencing purposes, but with the conviction, your client would be sentenced as a PRL IV. The general practice in your judicial district is for both parties to sign the PRL Worksheet, stipulating to the information set forth on the form and agreeing with the defendant’s PRL classification as indicated.

How should you proceed?

In teaching felony defenders here at SOG, I’ve seen this ethical dilemma threaten to swallow up the allotted ethics hour on multiple occasions. It is a challenging issue that, like many other dilemmas, involves a clash between ethical obligations.

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News Roundup

New data from the Centers for Disease Control and Prevention (CDC) indicates that drug overdose deaths in the U.S. declined significantly in 2024 as compared to 2023, reaching their lowest levels since 2019. Experts from the CDC state that increased funding from Congress has enhanced their ability to collect and analyze data, which in turn has allowed for more targeted and effective prevention efforts. Deaths from fentanyl fell by approximately 37%, while deaths from cocaine and psychostimulants also declined significantly. The declines were consistent across virtually all geographic regions.

Some experts attribute the changing trend to wider availability of the overdose-reversal drug naloxone as well as stepped-up treatment. Others contend the decline stems more from fewer people getting addicted in the first place.

Despite the encouraging news, drug overdoses remain the leading cause of death for individuals between the ages of 18 and 44.

Read on for more criminal law news.

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Authentication of Digital Communications Chart

A common evidence question that arises is how to properly authenticate digital communications. We have written on the topic in several blogs: How Can a Party Show Authorship of a Social Media Post or Other Electronic Communication?, Authenticating Photographs Obtained from Social Media Platforms, Business Records: Posts, Chats, and Texts, New Guidance on Authenticating Social Media, Admissibility of Electronic Writings: Emails, Text Messages, and Social Networking Posts, and more.

Last year, I created a chart to highlight the ingredients of authentication our appellate courts found to be adequate or inadequate as a foundation for surveillance video (also see the accompanying blog, Surveillance Video- When It Comes In and When It Doesn’t). I’ve received positive feedback on the chart and practitioners have asked for more evidence content in this format. For a second installment, I chose digital communications.

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New Bulletin on Social Workers in Public Defender Offices and Issues Involving Mandatory Reporting

Increasingly, public defender offices are bringing social workers in-house. As part of a growing interest in holistic defense, these offices are relying on social workers to assist with the representation of their clients in a variety of ways. Social workers can locate housing, find appropriate treatment for substance use disorder or mental illness, and improve client communication by building trust and sensitivity to clients’ needs. This work may support the presentation of mitigation evidence at sentencing, and beyond that, break cycles of involvement with the criminal justice system.

North Carolina is in the midst of a major, legislatively-funded expansion of its public defender system. The School’s Criminal Justice Innovation Lab is supporting NC Indigent Defense Services by evaluating the implementation of social work positions in public defender offices to learn more about the ways the inter-professional collaboration functions, how social work positions are structured, and common benefits and challenges of using social work staff.

During this work, a question has arisen on several occasions: how should the inter-professional defense team navigate a situation, such as learning of child abuse, where mandatory reporting laws require notification to the local department of social services (DSS) or law enforcement? Should social workers comply with state statutes and follow their own ethical code by making a report? Or does the attorney’s obligation to keep client confidences and provide effective assistance of counsel “trump” the social worker’s duty to report?

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News Roundup

Hundreds of Venezuelan immigrants were summarily deported from the United States to a prison in El Salvador last weekend. Federal authorities relied on President Trump’s executive order invoking the Alien Enemies Act of 1798 in removing the immigrants without due process protections. The administration stated that the immigrants were members of a violent gang, Tren de Aragua, and that their alignment with the Venezuelan government and entry into the U.S. constituted an invasion by a hostile nation. Advocates for the deported Venezuelans deny their involvement with the gang and stress that the three previous times that the AEA was invoked, it was during clear times of war (the War of 1812, WWI, and WWII).

Judge James Boasberg, a federal judge in Washington, had ordered that the flights carrying the immigrants be turned around, but this did not occur, and the court is now engaged in an inquiry to determine whether the Trump administration should be held in contempt. After Trump called for the impeachment of the judge, Chief Justice John Roberts of the United States Supreme Court made a public statement that the appellate process, rather than impeachment, is the proper way to address adverse court rulings.

Read on for more criminal law news.

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Can Law Enforcement Review Ankle Monitor Location Data Without a Warrant?

Last September, the Court of Appeals decided State v. Thomas, No. COA23-210, __ N.C. App. __ (2024), a case involving law enforcement’s retrieval of ankle monitor location data gathered while the defendant was on post-release supervision.

This is the first North Carolina appellate case to address whether it is constitutional for law enforcement to retrieve ankle monitor data without a warrant. This post will discuss the reasoning in Thomas and its implications for related questions.

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News Roundup

After a two-week evidentiary hearing last February, and closing arguments delivered in August, Superior Court Judge Wayland Sermons Jr. issued a 120-page order concluding that racism significantly affected the 2009 Johnston County trial of Hasson Bacote that resulted in the imposition of the death penalty. Bacote first challenged his sentence fifteen years ago under the now-repealed Racial Justice Act. In his order, Judge Sermons stated that the evidence showed a “consistent picture of the role race has played in jury selection throughout Johnston County and Prosecutorial District 11, and in the capital cases tried by [the] prosecutor…” After Governor Cooper commuted Bacote’s sentence to life imprisonment last December, it was unclear what would happen with the pending litigation. Judge Sermons evidently concluded that it was appropriate to make a ruling, stating that the voluminous “statistical, cultural, historical, social science, and other evidence produced in the [Bacote] case” would serve as a guide to courts considering the particular facts of future cases. Attorneys for the State said they planned to appeal the ruling.

Read on for more criminal law news.

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The Confidential Informant File: What Is It and When Must It Be Disclosed to the Defense?

I recently completed a series of posts on issues surrounding confidential informants (“CI’s”), discovery, and motions to reveal the CI’s identity. In this “bonus” post, I will discuss a related question: what is the “CI file” and when must the State turn it over to the defense? Let’s say the defense is successful in compelling … Read more