Articles in the Procedure category - Page 13 of 78

I’m happy to announce the publication of my new bulletin, Units of Prosecution: Charging Multiple Counts for the Same Conduct. The bulletin explores a common issue that arises in various contexts: when does conduct constitute one continuing offense and when does conduct constitute more than one offense?

Earlier this year, the North Carolina Court of Appeals in Edwards v. Jessup, 282 N.C. App. 213 (2022), considered whether a license revocation hearing in which a hearing officer employed by the Division of Motor Vehicles (DMV) both elicited and evaluated evidence, ultimately ordering revocation, violated the petitioning driver’s right to due process. Spoiler alert:  The Court held that the DMV hearing process did not violate the driver’s constitutional rights. Continue reading to learn why.

Last week, the FBI searched former President Trump’s home at the Mar-a-Lago Club pursuant to a search warrant. At first none of the relevant documents were publicly available. The application, the warrant itself, and the inventory were all sealed. The Government, with the consent of former President Trump, later moved to unseal the warrant and the inventory. That motion was granted and anyone can access the now-public documents here. The application remains under seal, though members of the news media have moved to unseal it. Because several people asked me about public access to federal search warrants and related documents, and because the process isn’t exactly the same as it is under state law, I thought I’d do a post comparing state and federal law on this issue.

Lately I have received a number of questions relating to whether it is appropriate to return guns following a temporary firearms disqualification. The issue seems to arise most commonly when a domestic violence restraining order (“DVPO”) is issued under Chapter 50B of the North Carolina General Statutes, which requires the surrender of guns by a defendant in certain circumstances and allows the defendant to seek return of the guns following the expiration of the order and final disposition of any related criminal charges. See G.S. 50B-3.1.

The issue of returning guns could pop up in other circumstances involving the seizure or surrender of guns. An interplay of state and federal law determines whether a person is disqualified from possessing firearms, temporarily or permanently, and some of the wrinkles are counterintuitive. This post examines some of the most common grounds for disqualification and discusses some limits of state authority in this area. It’s long, but I hope readers find it useful.

The North Carolina General Assembly recently passed S.L. 2022-30 (S 766) which increases the penalties for organized retail theft, provides additional penalties for damage to property or assault of a person during the commission of organized retail theft, and clarifies the procedure for the return of seized property to the lawful owner. The new criminal provisions go into effect on December 1, 2022 and apply to offenses committed on or after that date.

Below is a post I recently published on our On the Civil Side blog that I thought would be of interest to defense attorneys. The post explores the appeal of an order terminating a father’s parental rights following a hearing the father could not participate in because of a COVID-19 prison lockdown. The notions of due process, procedural fairness, and liberty interests will be familiar to you. The case, In re C.A.B., 2022-NCSC-51, also serves as a reminder that for a client who is incarcerated before or after a trial, the client’s life and family—and the world at large—go on.

Diverse teams of justice system stakeholders in New Hanover, Orange, and Robeson counties participated in the North Carolina Court Appearance Project, seeking to improve local court appearance rates and develop better responses to nonappearances. The teams examined local court and jail data, reflected on court practices and procedures, and crafted policy solutions suited to the needs of their communities and courtrooms. We recently released a report describing the project teams’ initial efforts. This post summarizes key takeaways from that report.

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.

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 […]

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.)