Evidence Archives – North Carolina Criminal Law

New Bulletin on Confidential Informants in North Carolina: Discovery, Audio/Video Recordings, and Motions to Reveal Identity

October 23, 2025 Daniel Spiegel

Law enforcement officers regularly work with Confidential Informants (CIs) when investigating organized crime or building cases against individuals in leadership positions within criminal enterprises. CIs are most commonly involved in drug cases, ranging from high-level trafficking to street-level dealing, but they may also play a role in the investigation of other crimes such as bribery, fraud, or firearms trafficking.

When cases involving CIs make it to North Carolina courts, difficult questions often arise as to how to balance the state’s interest in maintaining the confidentiality of the informant’s identity with the defendant’s rights to a fair trial and open-file discovery. These questions go beyond the traditional binary of whether the CI’s identity should or should not be revealed to the defense. See Roviaro v. United States, 353 U.S. 53 (1957). Especially as technology evolves and CI activity is regularly captured through audio/video recordings, judges must navigate challenging decisions regarding precisely what should be turned over to the defense.

Disclosure of Child Welfare Records in Cases Where DSS is Not a Party

October 16, 2025 Heinle

Child welfare records maintained by a department of social services (DSS) contain sensitive information that parties in various proceedings are often interested in seeing. A complex web of state and federal law governs the disclosure of these records – more than I can cover here. For purposes of this post, it’s sufficient to know that G.S. 108A-80 is a broadly applicable confidentiality statute that applies to DSS and covers client information generally. Absent limited statutory exceptions, G.S. 108A-80(a) prohibits disclosure of information related to individuals who apply for or receive public assistance or social services, including child welfare services.

Child welfare information is also subject to an additional set of confidentiality restrictions under Chapter 7B of the North Carolina General Statutes. For example, G.S. 7B-302 makes information that is obtained by DSS related to a juvenile’s alleged abuse, neglect, or dependency (A/N/D) confidential. Similarly, G.S. 7B-2901(b) requires DSS to maintain confidential records of juveniles it has in its custody. Both statutes provide exceptions to the confidentiality requirement.

This post explores how the exceptions in G.S. 7B-302 and 7B-2901(b) apply when a party—either in a North Carolina civil case where DSS is not a party or in a criminal or delinquency matter—wants DSS child welfare records about someone other than themselves. Note that in this post I use the term ‘DSS records’ to refer to child welfare records maintained by DSS, including those from juvenile A/N/D proceedings.

State v. Moore: Some Foundation Required for DRE Testimony

September 4, 2025September 3, 2025 Belal Elrahal

In light of the recent Court of Appeals opinion State v. Moore, this post is a follow-up to the 2018 blog post State v. Fincher: No Foundation Required for DRE Testimony by my colleague Shea Denning.

Rule 702 of the North Carolina Rules of Evidence governs the admissibility of expert testimony. Rule 702(a) requires the proponent to show that the expert testimony is based on sufficient facts or data (Rule 702(a)(1)), the product of reliable principles and methods (Rule 702(a)(2)), and the result of the witness reliably applying the principles and methods to the facts of the case (Rule 702(a)(3)). That said, there are circumstances where the proponent is not required to make these showings. Rule 702(a1)(2) permits a witness to give expert testimony about whether a person was impaired, and by what category of impairing substance, “notwithstanding any other provision of law” when the witness holds a current certification as a Drug Recognition Expert (DRE). In a case of first impression, the Court of Appeals held that the proponent of expert testimony by a witness properly certified as a DRE must nonetheless meet the showing required by Rule 702(a)(3) that the testimony is the result of the witness reliably applying the principles and methods to the facts of the case. Read on for more detail.

A New Way to Authenticate Video? State v. Windseth and the Business Records Exception

August 15, 2025July 24, 2025 Daniel Spiegel

Special thanks to Sloan Godbey, Summer Law Fellow at UNC SOG, for their significant contributions to this post.

In March of last year, I did a thorough review of North Carolina cases addressing the authentication of surveillance video. I created a chart to understand what ingredients are adequate (and inadequate) to lay a foundation. That chart can be found here, and the related blog here.

However, a case came down in March of this year that raises significant questions about how video is authenticated, or at least introduces a new potential avenue for authenticating video. I’m afraid my cherished chart may soon be of limited utility. But such is the way the law develops!

Common Character Evidence Questions in Self-Defense Cases

June 26, 2025 Daniel Spiegel

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.

Encounters with Lions: Evidence of Gang Affiliation in State v. Ervin

May 13, 2025 Joseph L. Hyde

A defendant who claims self-defense is generally permitted to offer evidence of the victim’s prior violent conduct if known to the defendant at the time defensive force was used. Such evidence is relevant to the reasonableness of the defendant’s belief in the need to use force. In State v. Ervin, No. COA24-650 (N.C. Ct. App. April 2, 2025), the trial court excluded as irrelevant and unduly prejudicial evidence offered by the defendant to show his state of mind at the time he killed his girlfriend’s brother, namely, evidence that the victim was in a gang. The Court of Appeals found no error, stating that evidence the defendant feared for his life because the victim was in a gang “does little to support his theory of self-defense.” This post examines the opinion in Ervin.

Spring 2025 Cannabis Update

March 19, 2025 Phil Dixon

I have been covering developments around the legalization of hemp in North Carolina since 2018. Never did I suspect then that I would still be working on the topic all this time later, but here we are. My last post on In Re: J.B.P. covered the then most recent developments around probable cause and the odor of cannabis. That opinion was withdrawn and has yet to reissue, but subsequent cases have basically affirmed the logic on which the case was decided. This month, the Court of Appeals released State v. Ruffin, COA24-276, ___ N.C. App. ___ (March 5, 2025), weighing in on evidentiary challenges to opinion evidence identifying a substance as marijuana, as well as on jury instructions for marijuana cases. This post examines these and other recent legal developments impacting the state’s criminal cannabis law. Read on for the details.

When is Double Jeopardy a Rule of Evidence?

March 11, 2025 Joseph L. Hyde

The defendant in State v. Greenfield, No. COA23-597 (N.C. Ct. App. Feb. 19, 2025), argued the trial court erred by admitting evidence and allowing argument about an attempted armed robbery charge for which he had previously been acquitted. The Court of Appeals posited that evidence is inadmissible under the Double Jeopardy Clause only when it falls within the scope of the collateral estoppel doctrine, which precludes relitigation of an issue of fact previously determined by a final judgment. The Court of Appeals concluded that the trial court did not err by failing to intervene in the closing argument here, but its formulation of the rule begs the question: under what circumstances will double jeopardy require the exclusion of evidence? This post attempts to answer that question.

Machine-Generated Data, Lab Tests, and the Confrontation Clause

March 4, 2025March 4, 2025 Phil Dixon

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution limits the use of testimonial hearsay statements by an unavailable witness at a criminal trial, as does its state counterpart in Article I, Sec. 23 of the North Carolina Constitution. A hearsay statement is an out-of-court statement offered for its truth. A statement is testimonial if the primary purpose of the statement was to establish past facts for use at a later prosecution. Ohio v. Clark, 576 U.S. 237, 245 (2015). The Confrontation Clause does not protect against the admission of nontestimonial statements (although hearsay statements still must meet an exception or exemption). In a recent decision, the North Carolina Supreme Court analyzed a challenge to the admission of the defendant’s phone records offered by the State at trial. Overruling the Court of Appeals on the point, the North Carolina Supreme Court found that the phone records were nontestimonial as purely machine-generated data.” The case is a good reminder of the distinctions between testimonial and nontestimonial statements and may have implications for future confrontation issues. Read on for the details.