The General Assembly is working hard to fashion a budget for the upcoming biennium, but in the meantime, legislators are conducting other business. Of interest to this audience, H347, a bill that would legalize gambling on sports, appears to be very close to becoming law. Both chambers have passed the bill, but in slightly different versions that will need to be reconciled before final passage. Meanwhile, S3, a bill that would legalize medical marijuana, has passed the Senate and is working its way through House committees. Its fate in the House is uncertain but that is more than could be said in prior years, when similar measures have passed the Senate but have not received meaningful consideration in the House. Keep reading for more news.
Jeff Welty
News Roundup
There have been some bumps in the road in the rollout of eCourts, the new electronic platform the court system is using in a handful of pilot counties for filing and case management. Now WRAL reports that a class action lawsuit has been filed alleging that the system “is keeping people in jail longer than they should be, and led to hundreds of people being arrested for things they did not do.” For example, the plaintiffs contend that “a Wake County woman was arrested multiple times on the same warrant for charges that were dismissed by a judge.” The Administrative Office of the Courts is not a named defendant but stated in the article that it has “not substantiated that any allegations of wrongful arrest or incarceration was caused” by the new system. Keep reading for more news.
When a Law Enforcement Officer Is Fired, Is He or She Entitled to a Name Clearing Hearing?
Many, perhaps most, law enforcement officers in North Carolina are at will employees. As the saying goes, they may be fired for any reason or for no reason. But when such an officer is fired for malfeasance, and that reason is made public such that potential future employers may be aware of it, the officer may be entitled to a “name clearing hearing” at which he or she can dispute the basis for the termination.
Open Carry and Reasonable Suspicion
A decade ago, I wrote a post about the circumstances under which police may stop a person who is carrying a gun openly. A lot has changed since then. The Supreme Court has strengthened the Second Amendment in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022). The General Assembly has eliminated the requirement that North Carolina residents obtain a permit before buying a handgun. See S.L. 2023-8. And empirical scholarship suggests that many more Americans are carrying guns on a daily basis. See Ali Awhani-Robar et al., Trend in Loaded Handgun Carrying Among Adult Handgun Owners in the United States, 2015-2019, Am. J. Pub. Health (2022) (finding that in 2019, “approximately 6 million [gun owners carried] daily,” which was “twice the 3 million who did so in 2015”). So it is a good time to revisit the question.
Authenticating Photographs Obtained from Social Media Platforms
In my last post, I wrote about how a party might authenticate a Facebook direct message or other text-based electronic communication. That post focused on how the proponent of the evidence might establish who wrote the message, i.e., authorship. But what if a party wants to introduce a photograph that was posted on a social media platform? The concept of authorship doesn’t really apply, and in the age of Photoshop and AI-generated images, courts may have serious concerns about the accuracy of online images.
News Roundup
The state legislature continues to be in full swing. While much talk here on campus centers on a bill that would eliminate academic tenure, the criminal justice community is likely more interested in legislation that would expand warrantless cell phone surveillance. WRAL reports here that “[p]olice could track people’s cell phones in real time — without a warrant — under a bill that passed a state House committee Wednesday.” The bill in question is H719, and at a glance, it would allow the SBI to use a pen register or trap and trace device without court approval for up to 48 hours to find a runaway child or missing person, or when there is “immediate danger of death or serious bodily injury.” The bill has passed out of a House committee but its ultimate fate is uncertain. Keep reading for more news.
News Roundup
WRAL reports here on renovations at the State Crime Laboratory. The renovations, supported by a $5 million appropriation, include “a new design for the Drug, Chemistry and Toxicology wing” that allows more space for analysts and scientific work. The idea is to improve workflow and reduce backlogs – a goal on which virtually everyone can agree. Keep reading for more news.
How Can a Party Show Authorship of a Social Media Post or Other Electronic Communication?
Suppose that a defendant is charged with possessing fentanyl with the intent to sell it. The state’s evidence includes a Facebook direct message, purportedly from the defendant to an informant, saying “just got some China Girl, you want any?” An officer took a photograph of the direct message as it appeared on the informant’s smartphone, and everyone is satisfied that the photograph fairly and accurately depicts the message. But the defendant objects to the introduction of the message on the grounds that there’s no way to be sure that he wrote it. How might the state respond?
News Roundup
A 21-year-old Massachusetts man has been arrested in connection with the recent leak of classified documents concerning the war in Ukraine. His name is Jack Teixeira, and he is an IT specialist and a member of the Air National Guard. WRAL reports here that “Attorney General Merrick Garland said he is to be charged with removing or transmitting classified national defense information, a crime under the Espionage Act.” Keep reading for more news.
Guilty Knowledge and the Possession of Controlled Substances
When a defendant is charged with a crime involving the possession of a controlled substance, what kind of knowledge or intent must the prosecution show? Must the state prove that the defendant knew that he or she possessed the substance? That the defendant knew that the substance was legally controlled? That the defendant knew the particular identity of the substance? Given the proliferation of controlled substances and the fact that many cannot be distinguished without laboratory equipment, these are important questions.