The Supreme Court of the United States decided a malicious prosecution case earlier this month. The case is Thompson v. Clark, 596 U.S. __ (2022), and it has been the subject of some overheated media reports. For example, one outlet claimed that before Thompson, “[p]olice officers could frame people, file bogus charges, [and] conjure evidence out of thin air” yet “still be immune from facing any sort of civil accountability.” Billy Bunion, The Supreme Court Says You Can Sue Cops Who Frame You on False Charges (April 5, 2022). That’s not right, but Thompson is still an important opinion. This post will lay out the basics of malicious prosecution, explain what the Court did in Thompson, and offer some thoughts about the significance of the new ruling. Continue reading
Category Archives: Procedure
The North Carolina Judicial College has created a video for jurors explaining the effects of bias on decision-making and suggesting how jurors may minimize the role of bias in their consideration of evidence presented at trial. The video was inspired by a juror orientation video on this topic produced by the United States District Court for the Western District of Washington, which has been shown to jurors as part of juror orientation in several criminal superior court cases in North Carolina.
The Judicial College video is shorter than the Washington video and features voices from some North Carolinians you may recognize. A party who wishes to have the video displayed during juror orientation may file a motion with the court requesting that be done. Senior resident superior court judges might also adopt an administrative order directing that the video be shown. Both approaches have previously been used by North Carolina judges to order the display of the Washington video.
If you have feedback about the video or questions about how to access its content, please feel free to email me directly at email@example.com.
One of the first examples in the video of bias is that a basketball fan might not be the right juror for a case involve the coach of his or her favorite basketball team or one of the players on the team. That example resonates particularly well for me today, the day of the NCAA Men’s Basketball Championship.
So I’ll sign off by acknowledging my basketball bias: Go Heels!
The North Carolina General Assembly revisited the authority of magistrates to conduct first appearances in Session Law 2022-6 (H243). The General Assembly ratified the law on 3/11/2022, and the Governor signed the legislation on 3/17/2022. The fifty-two page act is fairly typical session wrap up legislation. It makes numerous changes across statutes addressing many different legal topics. Part VIII of the law makes changes in the courts area.
In North Carolina, a district court judge normally conducts first appearance for criminal defendants. The clerk of court conducts first appearance only when a district court judge is not available during the designated time periods.
The General Assembly amended G.S. 15A-601 to change the law of first appearance twice in late 2021. Among changes in the General Assembly’s first revision was an amendment that would permit a magistrate to conduct first appearance if the clerk is not available. In subsequent legislation, the General Assembly removed that authorization for magistrates before it became effective.
See this blog post for details about previous changes to first appearance during this legislative session.
With Section 8.4 of Session Law 2022-6 (H243) the General Assembly has again amended G.S. 15A-601(e) to permit a magistrate to conduct first appearance if the clerk is not available.
The General Assembly made Session Law 2022-6 (H243) effective retroactively to July 1, 2021. Application of that date to this session’s first appearance changes is complicated. Previous amendments to G.S. 15A-601–to which this amendment applies–were effective for criminal processes served on or after December 1, 2021. Practically, it’s difficult to see how the new July 1, 2021 effective date has much impact. My view is that the amendment is effective immediately, but we’ll see if the Revisor of Statutes has something different to say in the final codification of this statute.
You can find previous posts about first appearance by searching this site.
This post summarizes an unusual point of law that recently caught me by surprise, and it’s one which I don’t believe we’ve ever directly covered on the criminal law blog before: the impact of bankruptcy on criminal charges.
After reading that introduction, I know some of you may be tempted to skip this one, but bear with me — whether you’re prosecuting or defending, and whether it’s a complex felony embezzlement case or a simple misdemeanor failure to return rental property, this could potentially be a pretty big deal. (Alternatively, if that’s not enough to hook you, please click through anyway to see a personal announcement at the end of this post.)
A new Juvenile Law Bulletin, Transfer of Juvenile Delinquency Cases to Superior Court, is now available. Transfer is the procedure used to move a case that begins as a delinquency matter under the original jurisdiction of the juvenile court to criminal court for trial as an adult. The Bulletin outlines when transfer is allowed, and sometimes required; the varying procedures to use to transfer a case based on age at offense and the offense charged; procedure to follow once transfer is ordered; the remand process; place of confinement; and issues related to the appeal process. This blog provides some highlights of the information in the Bulletin. Continue reading →
By now, most readers of this blog have probably seen the news stories about a school shooting that occurred in Michigan a couple weeks ago, and are aware of the prosecutor’s decision to charge the alleged shooter’s parents with involuntary manslaughter. If not, we covered it for you in the News Roundup (twice). Those articles contain extensive details about the facts of the case, the reasoning behind the charges against the parents, and the evidence that the state believes will support the charges. We now know about a meeting earlier the same day between the parents and school administrators, disturbing artwork found in a school desk, online searches for ammunition, texts and social media posts about the firearm, and much more.
The novelty of pursuing criminal charges against the parents of the alleged shooter has drawn most of the national attention, but it prompted me to think about another interesting issue that comes up fairly often in high-profile criminal cases: how much should the prosecutor be telling us about this pending case?
As in recent sessions, the General Assembly remained active in revising North Carolina’s expunction laws. The biggest changes came in S.L. 2021-118 (S 301), as amended by section 2.3 of S.L. 2021-167 (H 761). The legislation expanded the opportunity for a person to expunge older convictions of “nonviolent” felonies but with complex eligibility conditions. This post is a first stab at analyzing that legislation. At the end of the post are short summaries of other 2021 legislation revising North Carolina’s expunction laws. Continue reading →
The United States Supreme Court held in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that sworn forensic reports prepared by laboratory analysts for purposes of prosecution are testimonial statements, rendering their authors – the analysts – witnesses for purposes of the Sixth Amendment. A defendant has the right to be confronted with such a witness at trial, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. The upshot is that the State generally may not introduce these kinds of forensic reports in a criminal trial without calling the analyst to testify in person.
Since 2014, G.S. 15A-1225.3 and G.S. 20-139.1 have permitted forensic and chemical analysts to testify remotely in a criminal or juvenile proceeding via a means that allows the trier of fact and the parties to observe the analyst’s demeanor in a similar manner as if the analyst were testifying in the location where the hearing or trial is being conducted. Both statutes, however, have permitted such remote testimony only in circumstances in which the defendant fails to object to the analyst testifying remotely, thereby waiving the right to face-to-face confrontation.
This legislative session, the General Assembly amended G.S. 15A-1225.3 and G.S. 20-139.1 to authorize remote testimony by analysts in district court criminal proceedings regardless of whether the defendant objects.
These amendments become effective January 1, 2022 for criminal proceedings beginning on or after that date.
This legislative session, the General Assembly amended G.S. 15A-1215(a), effective October 1, 2021, to permit an alternate juror to replace a regular juror after deliberations have begun. S.L. 2021-94 (discussed in more detail here). The North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions has created a new instruction for judges to utilize when substituting an alternate juror after deliberations have begun and has amended the existing closing pattern instruction to ensure that alternate jurors refrain from discussing the case with anyone until they are discharged from service. The revised interim instructions are available here.
Following years of discussion and drafts, a formal Rules of Conduct for Magistrates was promulgated by the North Carolina Administrative Office of the Courts (AOC) effective October 1, 2021.
In June, Session Law 2021-47 Section 13.(a) authorized the AOC to prescribe rules of conduct for all magistrates via a new G.S. 7A-171.3. It said that the rules of conduct shall include rules governing standards of professional conduct and timeliness, required duties and responsibilities, methods for ethical decision making, and any other topic deemed relevant by the AOC.
Historically, magistrates have been subject to the North Carolina Code of Judicial Conduct as officers of the court in theory, though not everyone has agreed that the Code was directly applicable to magistrates. Confusing the issue further, the NC Judicial Standards Commission is not authorized to hear complaints about magistrates or clerks of court, among others. So, while the Judicial Standards Commission oversees ethical issues for North Carolina trial and appellate judges, no similar body has been in place for magistrates.