A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments. The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction. But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone. Our appellate courts have decided a few cases in the last several months which illustrate this complexity. This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial. My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here. Continue reading
Category Archives: Procedure
In December, the North Carolina Supreme Court decided State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (2022)—its third time weighing in on the issue of forfeiture of counsel. The defendant had had five court-appointed attorneys when the trial court determined that the defendant was engaging in delay tactics and entered an order of forfeiture. A majority of the Court of Appeals found no error. In reversing this decision, a majority of the Supreme Court concluded that the record did not show that the defendant engaged in the level of conduct sufficient to warrant a finding of forfeiture.
This post discusses State v. Atwell, forfeiture guidelines as set forth by the state Supreme Court, and suggested practices in dealing with forfeiture of counsel issues. Continue reading →
In State v. McLymore, 380 N.C. 185, 868 S.E.2d 67 (2022), our Supreme Court held that Section 14‑51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions,” and “the only right to perfect self-defense available in North Carolina [is] the right provided by statute.” Id. at 191, 868 S.E.2d at 72-73. At the same time, it interpreted the felony disqualifier provision of Section 14-51.4 – consistently with “common law principles” – to require a causal nexus between the felony and the use of force. Id. at 197, 868 S.E.2d at 77. The common law is apparently not so easily dispensed with. This post – my first contribution to this forum – addresses the persistence of the common law in the area of self-defense. My colleague Phil Dixon provided color commentary on McLymore here. My colleague John Rubin discussed the felony disqualifier provision (and anticipated the holding in McLymore) here. Continue reading →
Human Trafficking: New SOG Resource Explaining Your Obligation to Make a Report and How the Agency Responds
January recognizes the importance of knowing about human trafficking. The President has declared January Human Trafficking Prevention Month (see the proclamation here). The North Carolina Governor and the Chief Justice have both declared January Human Trafficking Awareness Month (see the Governor’s proclamation here and the Chief Justice’s proclamation here). The purpose of these declarations is both a recognition that human trafficking in the United States and North Carolina exists and to educate our citizens about this issue. Partnerships are required for a successful response to combat the crime of human trafficking, which involves both sex and labor trafficking. The national, state, and local responses involve the prevention of human trafficking, protection for victims and survivors, and the prosecution of traffickers. Continue reading →
State v. Diaz-Tomas Recognizes Broad Prosecutorial Discretion Following Dismissals With Leave
The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances.
Fall 2022 Cannabis Update
It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details. Continue reading →
Artificial Intelligence and the Courts
The role of artificial intelligence (AI) in American life was a hot topic of discussion at a conference for judicial educators that I attended earlier this week. The conference launched with a screening of the documentary Coded Bias, which explores disparities in the data that inform algorithms for a range of computerized functions from facial recognition to loan eligibility to insurance risk. The documentary highlights the vast amount of data collected and controlled by a small number of large U.S. companies and the lack of regulation governing its use. A panel of experts spoke after the screening about what judges should know about AI. Several of those topics related to its use in preventing, investigating and punishing crime. Continue reading →
Procedure in Juvenile Homicide Cases
How does a case proceed when a juvenile is charged with a homicide offense? In classic lawyer fashion, the answer is that it depends. In almost all instances, the case will begin as a juvenile matter. However, the path the case follows once the juvenile case begins, and whether the case is ultimately adjudicated as a juvenile matter or prosecuted as a criminal matter, depends on the age of the juvenile at the time of the offense and the specific offense charged. Continue reading →
Oklahoma v. Castro-Huerta Affords Concurrent Jurisdiction to States for Crimes Against Indians in Indian Country
A few years ago, I wrote this post analyzing criminal jurisdiction on the Qualla Boundary in Western North Carolina. I explained the jurisdictional rules for prosecuting crimes committed on the Qualla Boundary, or Eastern Cherokee Indian Reservation, as follows:
North Carolina has exclusive jurisdiction over a non-Indian who commits a crime defined by state law against another non-Indian on the Qualla Boundary.
North Carolina has exclusive jurisdiction over a non-Indian who commits a victimless crime defined by state law on the Qualla Boundary.
The federal government has exclusive jurisdiction over “major crimes” committed by Indians on the Qualla Boundary.
The federal government has exclusive jurisdiction over non-Indians who commit crimes against Indians on the Qualla Boundary.
The federal government has jurisdiction over other crimes committed by Indians against non-Indians on the Qualla Boundary unless the defendant already has been punished by the tribal court.
The federal government has jurisdiction over victimless crimes committed by Indians on the Qualla Boundary unless the defendant already has been punished by the tribal court.
The tribe has jurisdiction over an Indian who commits a crime that is not defined as a “major crime.”
Update. A decision from the United States Supreme Court last term likely changed one of those rules. The Court in Oklahoma v. Castro-Huerta, 597 U.S. ___, 142 S.Ct. 2486 (2022), held in a 5-4 decision that the state and federal governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country unless state jurisdiction is preempted.
Last July, the North Carolina Administrative Office of the Courts (AOC) launched a new application for generating criminal process and pleadings: eWarrants. This application replaced NCAWARE and is part of the court system’s migration to eCourts, a digital system that will replace the current paper-based system for maintaining court records. Given the scope of eWarrants, it may not be surprising to hear that the rollout was not seamless. Indeed, the thousands of magistrates, clerks, deputy clerks, and assistant clerks who became immediate users of the application soon identified defects and issues, many of which have subsequently been resolved. One such issue was the application’s failure, in certain circumstances, to print out charging language on criminal process and pleadings such as magistrate’s orders and warrants for arrest. When the issuing official does not immediately detect and remedy such an error, a judge who later holds a first appearance on such a charge may wonder how to proceed. This post will review the judge’s options in such a circumstance. Continue reading →