A UNC School of Government Blog
Let’s start with a brainteaser:
If there are no North Carolina criminal appellate cases citing to Rules of Evidence 803(7) or 803(10), does that prove that the rules are never used?
If you know your rules of evidence, then you get it. (You’re probably not that amused… but you get it.) If you need a quick refresher on these two rules, or an explanation of why it would be surprising that there are virtually no criminal appellate cases mentioning either of them, read on.
Love them or hate them, it looks like “emojis” are here to stay. As of this writing, more than 3,000 emojis have been officially recognized, standardized, and named by the Unicode Consortium (a group that cares very deeply about emojis, among other things) and they have been adopted for widespread use on cell phones, tablets, email clients, and social media platforms.
Emojis now exist as a way to succinctly express everything from the ordinary and familiar ( 
smiling face; 
thumbs-up) to the surprisingly specific (
mountain cableway; 
moon viewing ceremony) to the routinely misunderstood (
not “angry” but rather “persevering face;” 
not “shooting star” but rather “dizzy”), to the criminally repurposed (
snowflake to mean cocaine; 
rocket to mean high drug potency).
The explosive growth of this alternative form of communication is raising some interesting questions for criminal attorneys and the court system as a whole. Should emojis be considered “statements,” on equal footing with written or spoken words? If they’re not statements, then what are they? Who decides what is meant by the use of a particular emoji? Do they have to be published to the jury and included in the record as images, or can they be summarized and described by words? What should practitioners do to make sure that emojis are accurately reflected in transcripts, court orders, and appellate opinions, since many court systems are text-based and do not allow for the inclusion of images?
Let’s 
about it.
For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK.
What do the topics in the title of this blog post have in common? They were the focus of the students’ criminal justice presentations this week. Nine teams of students, two on each team, have been researching and preparing their presentations throughout the semester. Here are some of my takeaways from the first set of presentations.
My recent criminal justice class involved forensics so, being in London, it seemed only fitting to take a look at Sherlock Holmes and his methods. What was the impact of Arthur Conan Doyle’s fictional character on the development of forensics? What can we learn from Holmes more than 130 years after his first appearance in the classic A Study in Scarlet?
It was an epic throw down between two powerhouse teams on Monday in the heart of London. I don’t mean basketball. I certainly don’t mean football. I mean the moot court competition between UNC’s School of Law students and Middle Temple’s barristers-in-training (see earlier post this fall about Middle Temple). No winner was declared, to the disappointment of my students who were rooting on their fellow Tar Heels. But, the teams racked up the legal and educational points.
Back in February, I blogged about State v. Bridges, ___ N.C. App. ___, 810 S.E.2d 365 (Feb. 6, 2018), and drug identification. In short, Bridges held that the defendant’s out-of-court admission to an officer that a substance was “meth” was sufficient to meet the State’s burden of proving the identity of the substance, at least where the defendant failed to object to the testimony. This decision arguably signified an expansion of the Nabors exception to the Ward rule that a chemical analysis is generally required to establish drug identity (subject to other exceptions covered in the post). For a more thorough review of the topic, see that previous post. The Court of Appeals recently decided another drug ID case, State v. Osborne, ___ N.C. App. ___ (October 2, 2018), adding a new wrinkle to the rules.
Like most of the rest of the country, I followed the recent confirmation hearings for Judge (now Justice) Kavanaugh with great interest.
As the readers of this blog already know, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Judge Kavanaugh sexually assaulted her in high school. Much of her testimony recounted her recollection of that event, but some of her testimony was of a different nature. In addition to telling the Committee what she recalled, Dr. Ford also described the biological and chemical processes of memory itself, such as the way that neurotransmitters encode memories into the hippocampus.
In other words, Dr. Ford testified in dual roles: she was both a fact witness and a de facto expert witness.
Most of us will never participate in a Supreme Court confirmation hearing, but a similar type of dual testimony can arise in criminal trials in state court, and it raises some interesting issues.
A person who has previously been convicted of three non-overlapping felonies who commits a new felony in North Carolina may be indicted for the new felony and may be separately indicted for obtaining habitual felon status. If the person is convicted of the new felony and of obtaining habitual felon status, the person is subject to more severe punishment for the new felony.
In State v. Waycaster, __ N.C. App. ___ (2018), the court of appeals considered whether the State could prove a prior conviction underlying the defendant’s habitual felon status by offering a printout from the state’s Automated Criminal/Infraction System (“ACIS”) into evidence.
Defendants can lose confrontation rights a number of ways. Under the various notice and demand statutes, failure to object and demand the presence of the witness in a timely manner following receipt of the State’s notice results in waiver of the right to personally confront the witness. See, e.g., G.S. 90-95(g); G.S. 20-139.1(e1) (among others). A defendant can also forfeit his or her right to confrontation by wrongdoing—where the State can prove that the defendant’s conduct resulted in the unavailability of a witness, the defendant loses the right to confront that witness. Giles v. California, 554 U.S. 353 (2005). Stipulations to the admissibility of evidence, the subject of today’s post, are another form of waiver. When the defendant stipulates to a lab result, the right to personally confront the analyst is lost. What process is due before the judge accepts such a stipulation? Is the stipulation itself sufficient to waive confrontation rights? Or should the trial judge personally engage the defendant to ensure the waiver of confrontation rights is knowing and voluntary before accepting the stipulation? The Court of Appeals answered that question in a recent case.