North Carolina Criminal Law Blog

A few months ago, Jamie Markham summarized the North Carolina Supreme Court’s decision in State v. Capps, 374 N.C. 621 (2020), affirming the procedure used by the state to cure a defect with the name of the victim in larceny and injury to personal property charges. The higher court’s decision reversed the Court of Appeals ruling in State v. Capps, 265 N.C. App. 491 (2019), a case that Jeff Welty blogged about here.

The more recent Capps case is one that I have found myself mentioning over and over again during presentations on pleadings, amendments, and legal updates, so I thought we should close the loop on those earlier blog posts by digging a little deeper into its holding. Procedurally, Capps is a significant and helpful case for the state, but it remains to be seen how one aspect of the decision will be reconciled with existing case law.

While the suspension of jury trials caused by the pandemic has slowed the work of the criminal courts, judges across the state continue to sentence defendants who enter guilty pleas. The prospect of their clients facing prison time during the pandemic has spurred defense attorneys to consider what arguments might be made during sentencing proceedings with respect to the heightened danger of a defendant contracting COVID-19 in a correctional facility.

Procedural justice and procedural fairness are terms that refer to the way legal authorities interact with the public and how those interactions shape the public’s view of those authorities. I first learned of this framework for evaluating those interactions in connection with my work with court officials. Researchers have determined that people’s assessments of their experiences in the court system are influenced more by how they are treated and how their cases are handled than by whether they win or lose. It turns out that the same principles apply to the public’s perception of law enforcement officers. And a perception of procedural justice may increase the public’s compliance with the law and their willingness to cooperate with officers.

We have posted regularly during the COVID-19 pandemic about emergency directives entered by the Chief Justice pursuant to G.S. 7A-39(b)(2) that establish procedures and protocols governing the continuing operation of the courts. Last month’s post reviewed the status of directives then in place, noting their varying expiration dates. Last week, the Chief Justice entered an omnibus renewal order, which included all emergency directives currently in effect and placed all but one of them on the same expiration cycle. This post will briefly review those directives and other aspects of the September 15, 2020 order.

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.

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.

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 […]

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.

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

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.