Procedure Archives – Page 11 of 70 – North Carolina Criminal Law

Holding or Dicta?

August 11, 2020August 11, 2020 Jonathan Holbrook

In the comments to a blog post I wrote about using unpublished cases, one reader suggested a follow-up topic: “Should do an article on dicta; what is it and is it precedent?”

At the time, I was lukewarm on the idea. Dicta are just the extraneous statements in a court opinion that are not part of the precedential holding. What else was there to say? But the question came back to my mind after I read Chavez v. McFadden, __ N.C. __, 843 S.E.2d 139 (June 5, 2020), where the state Supreme Court made a point of disavowing dicta in a related Court of Appeals decision, discussed here. I began digging a little deeper, and discovered that my casual attitude towards dicta was predicted by an article written nearly seventy years ago:

Dictum is one of the commonest yet least discussed of legal concepts. Every lawyer thinks he knows what it means, yet few lawyers think much more about it. […] The traditional view is that a dictum is a statement in an opinion not necessary to the decision of the case. This means nothing. The only statement in an appellate opinion strictly necessary to the decision of the case is the order of the court. A quibble like this shows how useless the definition is.

“Dictum Revisited,” 4 Stan. L. Rev. 509 (1952). So I decided to take a closer look at how we distinguish and classify dicta, and whether dicta have any value as precedent. It turns out that our theory and practice may not always line up.

Time is Up: Failures To Comply Are Once Again Reported

August 3, 2020 Shea Denning

Among the Chief Justice’s early emergency directives and orders to address court operations in light of the COVID-19 outbreak were extensions for the time for paying monies owed in criminal cases. Those directives, which extended the time for doing certain acts in criminal cases and directed clerks to delay the entry of reports of failures to comply, were extended and modified in subsequent orders. The upshot was that defendants ordered to pay sums that would have resulted in entry of a “failure to comply” and the assessment of additional costs (and, in Chapter 20 cases, a report to DMV that would trigger a license revocation) had until July 31, 2020 to pay monies owed without incurring those consequences. That date passed last Friday, so clerks now are entering failures to comply, assessing the $50 in costs and reporting the entry to DMV in Chapter 20 cases.

New Emergency Directives: Facemasks Now, Jury Trials Later

July 20, 2020 Shea Denning

The Chief Justice entered two new emergency directives last week, requiring people in court facilities to wear face coverings and directing senior resident superior court judges to craft a plan for jury trials to resume in the fall. Face coverings. Face coverings have been required in most public spaces since June 26, 2020 pursuant to … Read more

Resurrecting the Good Faith Exception in North Carolina?

July 15, 2020July 14, 2020 Jonathan Holbrook

Conventional wisdom says that unlike the federal court system, we do not have a good faith exception under North Carolina law. Even though G.S. 15A-974 was amended in 2011 and now expressly provides for a statutory good faith exception, most practitioners agree that its use remains off limits under our state constitution unless and until State v. Carter is overruled.

If you had asked me a month ago, I would have confidently said “yep, that’s the law.” Today, I’m a little less sure. Two recent Court of Appeals decisions have renewed the question of whether Carter actually says what we think it does.

Case Summaries – North Carolina Court of Appeals (July 7, 2020)

August 10, 2020July 9, 2020 Phil Dixon

This post summarizes published criminal opinions of the Court of Appeals decided on July 7, 2020.

A Second Chance in North Carolina through Expanded Criminal Record Clearance

July 7, 2020 John Rubin

North Carolina continues to make gradual strides in helping people clear their criminal records and enhance their opportunities going forward. On June 25, 2020, the Governor signed the Second Chance Act, S.L. 2020-35 (S 562), which passed the General Assembly unanimously. The Second Chance Act expands expunction opportunities and streamlines the process for people trying to clear their records. The product of negotiation and compromise, it reflects the interests of prosecutors, law enforcement, and court administrators as well. The act illustrates many of the record clearance issues being considered around the country, including automatic expunction of nonconviction records (to begin in North Carolina at the end of 2021), removal of barriers to expunctions of nonconviction records (most notably, no longer will prior convictions, whether for a felony or misdemeanor, be a bar), somewhat greater opportunities to expunge older convictions if “nonviolent,” and greater access by prosecutors and law enforcement to expunged case information. This summary does not try to explore the many nooks and crannies in the legislation. It is a first pass at describing the changes.

Quick Reference Guide to Orders from the Chief Justice and the North Carolina Supreme Court Related to COVID-19

June 15, 2020June 10, 2020 Meredith Smith

[This post originally appeared on the School of Government’s civil law blog.]

Since the start of the pandemic, the Chief Justice of the North Carolina Supreme Court and the North Carolina Supreme Court have issued a number of directives impacting the court system. Instead of doing a heavy substantive post today, I thought I would share a quick reference chart I’ve been using to keep track of these directives, their effect based on the most recent order issued, the dates of the order containing each directive, and their expiration date.

New Emergency Orders Extend Deadlines in Criminal Cases

June 4, 2020June 1, 2020 Shea Denning

Chief Justice Cheri Beasley entered three emergency orders on Saturday affecting court operations during the COVID-19 pandemic. Two of the orders impact criminal cases. One extends the deadline for filing notices of appeal. The other extends the authorization for remote proceedings in Emergency Directive 3 and renews and modifies the provisions of Emergency Directive 7, which provides additional time to pay monies owed in a criminal or infraction case. (The third order stays eviction actions that currently are pending in the trial courts until June 21, 2020 and imposes other requirements related to eviction proceedings.)

Chief Justice Enters Additional Emergency Directives Governing Court Operations

May 22, 2020May 21, 2020 Shea Denning

This post was updated on May 22, 2020 to include discussion of a May 21, 2020 order extending deadlines in criminal cases and a May 14, 2020 order from the North Carolina Supreme Court.

Chief Justice Cheri Beasley entered an order today imposing eight new emergency directives (Directives 9 -16) to address court operations during the COVID-19 pandemic. The Chief Justice entered a separate order extending time for documents to be filed and acts due to be done in criminal cases in the trial courts.

Courts Will Expand Operations on June 1, But It Won’t Be Business as Usual

May 11, 2020 Shea Denning

In regular times, North Carolina’s state courthouses are high traffic venues, filled with employees, attorneys, media, law enforcement officers, and members of the public. Much of the work that transpires in these venues takes place through in-person interactions. Litigants file pleadings and other paperwork with the clerk’s office. Attorneys meet with clients, witnesses, law enforcement officers, and victims to explain proceedings, negotiate pleas, discuss schedules, and prepare for hearings and trials. Reporters often are on-hand to report on cases, activities, and trends of interest. Some law enforcement officers appear to testify; others are there to provide security. And then there is the public. Hundreds of defendants may appear on any given criminal district court docket. Many of them are accompanied by friends or family members. Some defendants seek to have an attorney appointed; others ask for a continuance. Some plead guilty in open court, and others submit a waiver of appearance, admission of guilt, and pay fines and costs to the clerk to resolve outstanding charges. Victims also appear to observe the disposition of a criminal cases in which they were harmed. Many of these people–defendants, friends, family, and victims alike–may spend hours sitting shoulder to shoulder in a crowded courtroom before completing their business before the court.

The courthouse scene has been dramatically different and has involved significantly fewer in-person interactions in the weeks since Chief Justice Cheri Beasley entered her first COVID-19 emergency directive on March 13, 2020. While courts have remained opened, and judges have continued to hear emergency and time-sensitive matters, regular sessions of criminal court have largely ceased in most districts. Most criminal cases have been continued until June 1, 2020 or later pursuant to the Chief Justice’s directives. With June 1 just a few weeks away and with the Governor slowly easing COVID-19 restrictions, court officials are now considering how they can resume some of their previous in-court activities while ensuring the safety of everyone present in the courthouse—from employees to the public.