Evidence Archives – Page 4 of 29 – North Carolina Criminal Law

New Guidance on Authenticating Social Media

December 11, 2020December 8, 2020 Jonathan Holbrook

Nearly half of the 7.7 billion people in the world are on social media, and each of those users has an average of 8 different accounts. The rate is even higher in the U.S., with around 70% of the population active on social media for an average of 2 hours every day. You can find more jaw-dropping statistics here.

Given these trends, it’s no surprise that social media evidence is showing up more frequently in criminal cases. A quick search for criminal cases mentioning the most common social media platforms brought up well over 100 North Carolina cases decided in the last decade, but only a few of those cases have directly analyzed the authentication requirements for this type of evidence. The Court of Appeals recent decision in State v. Clemons, __ N.C. App. __ (Dec. 1, 2020) provides some additional guidance in this important area.

Resurrecting the Good Faith Exception in North Carolina?

July 15, 2020July 14, 2020 Jonathan Holbrook

Conventional wisdom says that unlike the federal court system, we do not have a good faith exception under North Carolina law. Even though G.S. 15A-974 was amended in 2011 and now expressly provides for a statutory good faith exception, most practitioners agree that its use remains off limits under our state constitution unless and until State v. Carter is overruled.

If you had asked me a month ago, I would have confidently said “yep, that’s the law.” Today, I’m a little less sure. Two recent Court of Appeals decisions have renewed the question of whether Carter actually says what we think it does.

Case Summaries – North Carolina Court of Appeals (July 7, 2020)

August 10, 2020July 9, 2020 Phil Dixon

This post summarizes published criminal opinions of the Court of Appeals decided on July 7, 2020.

Summer 2020 Hemp Update

June 16, 2020June 16, 2020 Phil Dixon

On Thursday, June 4, 2020, the North Carolina General Assembly passed S.B. 315, referred to as the State Farm Bill, which was subsequently signed into law by the Governor. The bill was pending all last session and stalled, allegedly over a dispute about how to treat smokable hemp. As I understand it, the bill originally intended to clarify that hemp in all forms (including smokable hemp) was legal (here is an earlier version of the bill taking that approach). After hearing objections from law enforcement and prosecutors (as detailed in the SBI memo on the subject), the proposed bill was changed to ban smokable hemp and regulate the rest of the hemp industry in a variety of ways. When the bill was last being discussed in the news, the dispute at the General Assembly had apparently narrowed to when the smokable hemp ban was to kick in. But, the bill never passed last session, and we were without a Farm Bill until this month. So, what big changes does the bill have in store for hemp in North Carolina?

New Video Tech, Same Old Rules

March 13, 2020March 12, 2020 Jonathan Holbrook

My colleagues and predecessors here at the School of Government have written about video evidence many times over the years, summarizing the basic rules and significant cases in posts available here, here, here, here, and here.

Recently, though, I’ve been getting questions about a relatively new but increasingly common type of video evidence: high-tech, app-controlled, and remotely stored videos taken by automated devices ranging from doorbell cameras to wifi-enabled, cloud-connected, teddy bear spy cams. Do the old rules still work the same way for these new video tools? Is it substantive or illustrative evidence? If it’s substantive, how is it authenticated? Is a lay witness qualified to testify about how these cameras work? Does the proponent need the original video? Come to think of it, what is the “original” of a video that exists only as bits of data floating somewhere in the cloud…?

The Rules When There Are No Rules

January 15, 2020January 14, 2020 Jonathan Holbrook

In this blog post from 2012, Professor Jessica Smith summarized Rules of Evidence 101 and 1101, which together dictate that the rules of evidence apply to “all actions and proceedings in the courts of this State,” except for proceedings that are specifically excluded by the rules or another statute. Pursuant to these two rules and the case law interpreting them, proceedings at which the rules of evidence (except for rules of privilege) do not apply include: applications for warrants; grand jury proceedings; first appearances; pretrial release hearings; probable cause hearings; hearings on motions to suppress; witness voir dire; sentencing hearings; probation revocation hearings; and more.

That’s quite a list. If the rules of evidence do not apply to any of these proceedings, are there any limits at all on the evidence that may be offered? Could an unsworn and mentally incompetent witness with no personal knowledge offer irrelevant and prejudicial triple-hearsay testimony about a prior conviction more than 10 years old, offered solely for the purpose of showing the defendant’s bad character and the likelihood that he acted in conformity therewith?

Surely not. But if there are no rules of evidence, why not? The short answer to nearly any question about the admissibility of evidence under Rule 1101(b) is “it’s in the judge’s discretion,” but what guides that discretion, and what are its limits?

Does Miranda Apply When Defendant’s Lawyer is Present?

December 12, 2019December 10, 2019 Jonathan Holbrook

If you type “miranda” into the search box on this blog, it will return more than 50 posts covering a wide range of related topics: the meaning of custody, deficient warnings, knowing and voluntary waivers, ambiguous assertion of rights, special rules for juveniles, readvising and reinterviewing, public safety exceptions, and many, many others.

But I was stumped recently by a deceptively simple question that I had not heard before, and did not come up in those results: what if the defendant’s lawyer is present? Does an in-custody defendant still have to be advised of his Miranda rights before he can be questioned by police?

I did some digging, and the case law on this issue genuinely surprised me.

Sufficiency vs. Admissibility: Drug I.D. after State v. Osborne

September 17, 2019 Phil Dixon

In August, the North Carolina Supreme Court weighed in on drug identification once again in State v. Osborne, ___ N.C. ___ (August 16, 2019). I wrote about the earlier Court of Appeals decision in the case, here. The new Osborne decision clarifies the application of drug identification rules as well as sufficiency of the evidence in this context.

Is a Written Transcript the “Best Evidence” of a Recording?

February 11, 2022September 10, 2019 Jonathan Holbrook

Shocking videos on sites like Faceboook Live may dominate the headlines (see examples here and here), but criminal attorneys know that the humble, old-fashioned audio recording still plays a large role in many cases. The state’s evidence at trial might include recordings of jail calls, witness interviews, 911 calls, suspect interrogations, wiretap intercepts, controlled buys, incriminating voicemails, and more. To aid in presenting that evidence to the jury (especially when the quality or volume of the recording is less than ideal), some prosecutors also prepare and introduce a written transcript of what was said on the tape.

That raises a tough question: Does the introduction of a transcript of an audio recording run afoul of the “best evidence” rule? There are cases that go both ways on this issue, and at first glance the rule seems to be something along the lines of “it is a violation, except when it isn’t, and sometimes maybe it doesn’t matter anyway.”

Let’s try to clean that up a little.

Court of Appeals Considers Propriety of Opinion Testimony Based on Crash Scene Investigation

June 5, 2019 Shea Denning

May a law enforcement officer who personally investigates, but does not observe, a vehicle crash testify as to his opinion about who was driving the vehicle? Does the answer depend upon whether the officer is qualified as an expert in accident reconstruction? The court of appeals considered those questions in State v. Denton, ___ N.C. App. ___ (June 4, 2019), decided yesterday.