When a defendant is charged with possession of a firearm by a felon, may the prosecution introduce, under Rule 404(b), evidence that the defendant previously possessed a different firearm? Courts nationally are divided. The Court of Appeals of North Carolina just ruled in State v. Williams that the answer is no.
Evidence
The Inevitable Discovery Exception to the Exclusionary Rule under the United States Constitution
Two important exceptions to exclusionary rules under the federal constitution were adopted by the United States Supreme Court within a month of each other in 1984: (1) the inevitable discovery exception in Nix v. Williams, 467 U.S. 431 (1984), and (2) the independent source exception in Segura v. United States, 468 U.S. 796 (1984); see also the later case of Murray v. United States, 487 U.S. 533 (1988). These two exceptions continue to be litigated. This post will discuss the inevitable discovery exception, and my next post will discuss the independent source exception.
Walker, Jacobs, and the Importance of Preserving the Record
Two weeks ago, the SOG hosted over 50 public defenders, contract attorneys, and private assigned counsel at its annual Felony Defender training. The training provides guidance to lawyers transitioning to superior court about handling a felony case from start to finish. Topics include discovery and investigation, pretrial motions, voir dire, and jury instructions, among others. On a personal note, it was my first training in my role as Defender Educator and my first behind-the-scenes look at the effort required to plan and execute a successful course. Without the hard work of the faculty and support staff from the SOG, as well as volunteers from IDS and the private bar, the program would not have been possible. Thanks to everyone that participated. I truly enjoyed the training, especially speaking with the lawyers that attended, and I hope they found it worthwhile as well.
Insanity, Clinical Standards, and Expert Testimony
In Moore v. Texas, which I discussed here, the Supreme Court of the United States held that courts must rely on current clinical standards when determining whether a defendant is intellectually disabled and so exempt from the death penalty. Must courts also defer to clinical standards when determining whether a defendant is insane and so exempt from criminal culpability? I don’t think so, for the reasons below.
How O.J. Got the Fuhrman Tapes (and You Can Get Out-of-State Materials)
Almost everyone knows about the trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Many people also know about a key piece of evidence introduced by the defense—taped interviews in which one of the investigating officers, Los Angeles Police Department detective Mark Fuhrman, used racial slurs. Less well known is the legal mechanism that the defense team used to obtain the tapes, which were in the possession of a North Carolina writer who refused to turn them over voluntarily. How did O.J.’s lawyers compel a resident of North Carolina to produce the tapes in faraway Los Angeles, California? This post reviews the procedure used in the O.J. case and other ways to obtain out-of-state materials in a criminal case.
The Light Just Turned Yellow for Retrograde Extrapolation
I wrote in September 2015 that the court of appeals’ view of the admissibility of retrograde extrapolation under Daubert did not look much different from its take on the admissibility of that evidence under old Rule 702. As of yesterday, it does. The court of appeals in State v. Babich, __ N.C. App. __ (2017), changed the green light for retrograde extrapolation testimony in DWI cases to yellow.
Evidence Rule 803(8) and the Admissibility of Police Reports
Suppose that a law enforcement officer testifies for the State in a criminal case and is unable to remember some aspects of his investigation. The prosecutor shows the officer his report, which the officer prepared in the ordinary course of his work around the time of the events, but it does not refresh his memory. The prosecutor offers the report as evidence. The defendant’s attorney objects, relying on North Carolina Rule of Evidence 803(8). That rule creates an exception to the hearsay rule for official records and reports, but it specifically excludes “in criminal cases matters observed by police officers and other law-enforcement personnel.” The prosecutor argues that notwithstanding this prohibition, the report is admissible under other hearsay exceptions. Who’s right?
Rule 404 and Evidence of Prior Incarceration
In a recent decision, the Court of Appeals granted a new trial on the ground that improper and prejudicial character evidence regarding a prior incarceration of the defendant was admitted at trial. The case presents a reminder about the distinction between North Carolina Rules of Evidence 404(a) and 404(b) and sheds light on the admissibility of evidence of a defendant’s incarceration.
Facts. In State v. Rios, ___ N.C. App. ___ (Dec. 20, 2016), law enforcement obtained a warrant to search the residence of the defendant, where he lived with the homeowner and another roommate. The search revealed nearly sixty pounds of marijuana and a host of other evidence of drug distribution activity. The police found about seven pounds of marijuana in the defendant’s bedroom, most of which was in a large box. Fifty more pounds were found in the garage. A latent fingerprint found on drug-packaging material in the homeowner’s room was matched to the defendant.
Expert Testimony about Eyewitness Identification
This post addresses three recurrent issues concerning eyewitness identification:
- When, if at all, is expert testimony about eyewitness identification admissible?
- When, if at all, is an indigent defendant entitled to funds with which to hire an expert on eyewitness identification?
- May jury instructions, rather than expert testimony, be used to inform the jury about factors relevant to the accuracy of an eyewitness identification?
Sexual Activity as a Confidential Marital Communication
Is having sex with your spouse “communication”? The court of appeals addressed this issue in State v. Godbey, a child sexual abuse case. The victim alleged that the defendant engaged in specific, unusual sexual acts with her. The court considered whether the defendant’s wife could be compelled to testify that the defendant engaged in similar acts with her, or whether those acts were covered by the confidential marital communication privilege.