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.
Category Archives: Procedure
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.
In this earlier blog post, I discussed changes made to North Carolina’s first appearance process, to be effective for criminal processes served on or after December 1, 2021. Additional amendments have been made in new legislation.
In Session Law 2021-182 (S183), Section 2.5.(a) revised G.S. 15A-601 as previously amended by S.L. 2021-138.
Defendants charged with misdemeanors and in custody to get first appearance
This amendment does not affect a significant change made by S.L. 2021-138–the expansion of first appearance to include defendants charged with misdemeanors who are in custody. Under current law, only criminal defendants with felony charges are required to get first appearance.
Continue reading →
Note from John Rubin: I regret to report that Emily Coward is leaving the School of Government. In her nine years at the School as part of our Public Defense Education group, Emily co-authored our defender manual, Raising Issues of Race in North Carolina Criminal Cases; directed the North Carolina Racial Equity Network, a program providing a series of trainings for interested North Carolina defenders; and became a national expert in, among other areas, efforts to address racial disparities and bias in jury formation and selection. The good news is that Emily is launching the Inclusive Juries Project (IJP), which will partner with lawyers, scholars, students, court actors, and community members on initiatives aimed at ensuring fair and inclusive juries in North Carolina and nationally. Through research, scholarship, consulting, and educational initiatives, IJP will contribute to jury reform efforts, develop tools and strategies to address juror discrimination, and work to ensure the constitutional promise of the American jury system. We are grateful for Emily’s many contributions while at the School of Government and wish her all the best in her new endeavors.
A Glynn County, Georgia jury will soon determine the fate of Gregory McMichael, Travis McMichael, and William Bryan for their roles in the killing of Ahmaud Arbery in Brunswick, Georgia last year. You may have read that the defense attorneys struck eight of the nine, or 88%, of all eligible black jurors. If you haven’t followed the case, the defendants are white, and the victim, Mr. Arbery, was black. Mr. Arbery was out jogging when he was pursued, cut off, and killed by the defendants in their trucks. The jury hearing the case is comprised of 11 white jurors and one black juror; all four alternates are white. Black jurors are underrepresented on this jury in relation to their representation in the county, as 26.6% of Glynn County residents are black. Continue reading →
I’m pleased to announce a new collaboration between the Public Defense Education team at the School of Government and Indigent Defense Services. I frequently get questions from defense lawyers about expert witnesses. Where do you find experts? How do you know which expert is right for your case? How do you go about getting funding for one in your case? How much information should I give the expert? Sarah Olson is of course the guru in this area, and she constantly provides defense attorneys with assistance on expert witness issues. As Forensic Resource Counsel for IDS, she teaches, writes, and advises on all things forensic. Her website is a wealth of information on experts, including a database of expert witnesses, sample motions for expert funds, and the latest news and developments in forensic disciplines. Together with Paul Bonner in the IT department of the SOG, we have put together a short video discussing the basic mechanics of getting and working effectively with an expert witness (Well, Paul put it together. Thanks again for his techno-wizardry!). If you are already comfortable with the process of working with experts, you may not learn much new. But for readers who are new to working with experts or just need a refresher, it provides a succinct discussion on best practices. Check it out on Vimeo here. Email us with any feedback at firstname.lastname@example.org and email@example.com.
In January 2020, North Carolina’s Second Judicial District (Beaufort, Hyde, Martin, Tyrrell, and Washington Counties) implemented two consensus bail reform initiatives. First, they implemented a structured decision-making tool for magistrates to use when making bail decisions. Among other things, the tool:
- creates a presumption for conditions other than a secured bond for people charged with Class 3 misdemeanors;
- provides screening factors to quickly identify individuals charged with intermediate-level cases (defined by local policy to include Class A1 – 2 misdemeanors and Class F – I felonies) who can be released on a condition other than a secured bond;
- affords those charged with Class A – E felonies no special presumptions or screening; and
- embeds within the decision-making process the statutory requirement that conditions other than a secured bond must be imposed absent a risk of non-appearance, injury to any person, or interference with the criminal proceeding.
Second, stakeholders implemented new first appearances for individuals detained on misdemeanor charges to ensure timely judicial review of bail.
These reforms were developed by a stakeholder team including judges, prosecutors, public defenders, clerks, magistrates, and law enforcement leaders. One of the team’s goals was to reduce pretrial detentions of individuals who do not pose a pretrial risk but are detained due to inability to pay bail. The UNC School of Government Criminal Justice Innovation Lab supported stakeholders in the development and implementation of reforms and, with support from local stakeholders, conducted an empirical evaluation of their implemented reforms. We recently released a final report (here) on that evaluation. This post summarizes key findings. Continue reading →
The North Carolina General Statutes require the senior resident superior court judge to, in consultation with the chief district court judge or judges, issue a local bail policy. G.S. 15A-535(a). But doing so is no easy matter given the many statutory rules and exceptions and areas for discretionary policy choices. Christopher Tyner and I have tried to facilitate that task, with a North Carolina Model Local Bail Policy. We first issued the Model Policy in the Spring and we just posted an updated version, incorporating the latest legislative changes to the state’s bail statutes. The Model Policy can be found here; it’s the first item under “Implement.” Read on for details.
Last November, I blogged about recommendations from the North Carolina Sheriffs’ Association for legislation that would enable hiring authorities, certifying commissions, and state prosecutors to learn of misconduct by officers, including untruthfulness, that would impair an officer’s credibility as a witness in a criminal prosecution and which must be disclosed to the defense. This type of information often is referred to as Giglio material, adopting the name of the first U.S. Supreme court case to apply a disclosure requirement to evidence relevant to impeaching a government witness, Giglio v. United States, 405 U.S. 150 (1972).
This session, the General Assembly enacted legislation implementing some of the Association’s recommendations. Among the changes enacted by S.L. 2021-137 (S 536) and S.L. 2021-138 (S 300) are requirements that the certifying commission for an officer be notified when the officer is informed that he or she may not be called to testify at trial based on bias, interest, or lack of credibility. If the officer transfers to a new agency, the Criminal Justice Standards Division (in the case of State, municipal, company, and campus officers) or the Justice Officers’ Standards Division (in the case of deputy sheriffs, detention officers, and telecommunicators) must notify the head of the new agency and the elected district attorney in the prosecutorial district where the agency is located that the person has been previously notified that the person may not be called to testify at trial.
Last month, the Court of Appeals decided State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021), and a summary of the opinion is available here. Austin addressed several noteworthy self-defense issues, including the sufficiency of the state’s evidence to rebut the presumption of reasonable fear under the “castle doctrine” statutes added in 2011 and whether the trial court’s jury instructions on that issue were proper.
But first, the court had to decide whether the statutory language conferring “immunity from liability” meant that the defendant was entitled to have this issue resolved by the judge at a pretrial hearing. That’s a question I’ve been asked fairly often over the past few years, and my sense is that prior to Austin there were divergent practices on this point around the state.
This post takes a closer look at that portion of the court’s opinion, and explores what we now know and what we still don’t.
I recently posted, on the UNC School of Government Criminal Justice Innovation Lab website, a model implementation plan designed to help stakeholders comply with S.L. 2021-138. That law requires first appearances for all in-custody defendants within 72 hours after the defendant is taken into custody or at the first regular session of district court in the county, whichever occurs first. The new law becomes effective December 1, 2021 and applies to criminal processes served on or after that date. Continue reading →