My ten-year-old daughter asked me a few weeks ago what O.J. Simpson had done. Like the rest of America, she heard news of his parole hearing. What she couldn’t figure out is why people were so interested in when he would be released from jail. I told her about the hotel room and the sports memorabilia. And then I told her about the murders of Nicole Brown Simpson and Ron Goldman. (Don’t judge me: She has older brothers and she has watched so many episodes of Criminal Minds that the damage is already done.) I told her that a great many people thought O.J. had gotten away with murder; that’s why some thought he should stay in jail. With O.J., as with nearly everyone tried in the court of public opinion, allegations of other bad behavior shape the public’s perception of the person’s current predicament.
Evidence
Counties May Impose Civil Penalties for Passing a Stopped School Bus
Four years ago, the General Assembly increased the criminal fine for passing a stopped school bus and enacted new license revocation and registration hold provisions. During the previous year—2012—there had been more than 1,300 misdemeanor charges for passing a stopped school bus and three felony charges, two for unlawfully passing a stopped school bus and striking a person and one for doing so and causing death. Not much has changed. In 2016, there were 1,400 misdemeanor charges for passing a stopped school bus and three felony charges for doing so and striking a person. This year, the General Assembly took a different tack. S.L. 2017-188 (S 55) authorizes counties to adopt ordinances that enforce the provisions of G.S. 20-217 by means of automated school bus safety cameras and impose civil penalties for violations.
State v. Younts: Rule 702 Does Not Require Proof that HGN Testing is Reliable
Folks, we have an answer. The court of appeals held yesterday in State v. Younts, ___ N.C. App. ___ (2017), that a law enforcement officer trained to administer a Horizontal Gaze Nystagmus (HGN) test may properly testify about the results of a test he administered without any determination by the trial court that HGN testing is scientifically reliable.
Summer Confrontation Clause Cases
This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.
Bill Cosby and the Lack of Rule 404(b) Evidence
Over the weekend, the judge presiding over Bill Cosby’s sexual assault trial declared a mistrial after the jury was unable to reach a unanimous verdict. I hadn’t followed the case very closely and my knee-jerk reaction was, “wait, fifty women have accused this guy of sexual assault and he didn’t get convicted?” As I thought more about it, I began to wonder how many accusers — other than Andrea Constand, the alleged victim in the case — were allowed to testify against Cosby. It turns out that it was only one.
Must a Trial Judge Act as a Gatekeeper Even if Not Asked to Do So?
Here’s a question that arose during a recent class: Suppose that a party in a criminal case seeks to introduce forensic evidence from a discipline of questionable validity, such as bite mark analysis. The lawyer on the other side isn’t aware that the technique has been the subject of scientific criticism and doesn’t object. Must the trial judge nonetheless assess the reliability of the proposed testimony before admitting it?
The Independent Source Exception to the Exclusionary Rule under the United States Constitution
I discussed the inevitable discovery exception in my last post. This post will discuss the independent source exception, particularly the United States Supreme Court cases of Segura v. United States, 468 U.S. 796 (1984), and Murray v. United States, 487 U.S. 533 (1988), and related North Carolina cases. It should be noted that the independent source exception was initially adopted in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and can apply to investigations involving Fourth, Fifth, or Sixth Amendment violations.
Can the Fact that Daryl Had a Glock Yesterday Be Used to Prove that He Had an AK-47 Today?
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.
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.