Latest posts in category Procedure on North Carolina Criminal Law Blog

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.

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.

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.

Statutory Authorization

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. 

History

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.

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.

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 […]

I am happy to announce the publication of my new bulletin, “When and How Criminal-Defense Attorneys Can Obtain Access to Confidential Child Welfare and Juvenile Abuse, Neglect, and Dependency Records.” I hope it is of help to anyone needing to determine criminal attorney access to these protected records.

Consider these common scenarios. A criminal attorney learns that a county department of social services (DSS) or equivalent agency has been involved with that attorney’s client and family. Or maybe the attorney believes that the DSS has investigated a report of suspected abuse, neglect, or dependency that involves a witness or alleged victim in the criminal case. How can the criminal attorney access existing child-welfare and juvenile abuse, neglect, and dependency records that may be relevant to the criminal case?

Alternatively, a respondent parent, guardian, custodian, or caretaker in a juvenile abuse, neglect, and dependency (A/N/D) action has been charged criminally. The criminal attorney asks the attorney representing the same individual in the A/N/D matter to share records and information relating to the A/N/D proceeding. What can the A/N/D attorney share with the criminal attorney?