Procedure Archives – Page 2 of 72 – North Carolina Criminal Law

Procedures for Criminal Bench Trials in Superior Court

April 30, 2025 Shea Denning

The North Carolina Constitution historically mandated trial by jury in all criminal cases in superior court. See N.C. Const. Art. I, Section 24 (2014) (“No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.”); State v. Hudson, 280 N.C. 74, 79 (1971) (“In this State, the only exception to the rule that ‘nothing can be a conviction but the verdict of a jury’ . . . is the constitutional authority granted the General Assembly to provide for the Initial trial of misdemeanors in inferior courts without a jury, with trial De novo by a jury upon appeal. . . . It is equally rudimentary that a trial by jury in a criminal action cannot be waived by the accused in the Superior Court as long as his plea remains ‘not guilty.’”); State v. Bunch, 196 N.C. App. 438, 440 (2009), aff’d, 363 N.C. 841 (2010) (“Unlike the right to a jury trial established by the Sixth Amendment of the U.S. Constitution, the right to a jury trial pursuant to Article I, Section 24, cannot be waived.”); see also State v. Holt, 90 N.C. 749, 750–51 (1884) (“The constitution (Art. I, §13) provides that “no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal.’”). Thus, a defendant who wished to proceed to trial in superior court had to do so before a jury. There was no option for a criminal trial in superior court in which the judge served as the finder of fact – a procedure known as a bench trial. The state constitution was, however, amended effective December 1, 2014 (for criminal offenses arraigned in superior court on or after that date) to allow a defendant in a noncapital case to waive the right to a jury trial with the consent of the trial judge. S.L. 2013-300.

As a result, Article I, Section 24 of the North Carolina Constitution currently provides:

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

G.S. 15A-1201 prescribes the procedures for waiving jury trial in superior court in favor of a bench trial. G.S. 15A-1201(b) provides that when a defendant — with the consent of the trial judge — waives the right to trial by jury, the whole matter of law and fact “shall be heard and judgment given by the court.” Those determinations include aggravating factors in impaired driving cases under G.S. 20-179 and aggravating factors in structured sentencing cases under G.S. 15A-1340.16.

So how is it done?

Preservation Reservations in State v. Bell

April 8, 2025 Joseph L. Hyde

The defendant in State v. Bell, No. 86A02-2 (N.C. March 21, 2025), failed to object to gender-based discrimination during jury selection. Accordingly, the North Carolina Supreme Court concluded that the “defendant’s J.E.B. claim was not preserved for appellate review.” Slip Op. at 2. If the Supreme Court were reviewing a judgment of conviction on direct appeal, this would not be surprising: a defendant’s failure to raise a constitutional issue at trial generally precludes a court’s consideration of the issue on appeal. But the Supreme Court in Bell was instead reviewing the denial of the defendant’s motion for appropriate relief, where the applicability of the preservation rule is less clear. This post considers Bell’s application of that rule to a postconviction motion.

Motor Vehicle Seizures: Temporary Release Pending Trial

March 5, 2025 Belal Elrahal

In previous posts, I’ve addressed the expedited scheduling requirements and opportunities for permanent release of motor vehicles seized pursuant to G.S. 20-28.3. Today, I’ll address the ways a motor vehicle may be released temporarily pending trial or final disposition of the underlying offense. Generally speaking, this temporary release permits a motor vehicle owner to obtain temporary possession of the vehicle conditioned on meeting certain prerequisites and agreeing to return the motor vehicle on the day of the forfeiture hearing. Read on for more.

2025 Expunction Guide Available for Free!

January 16, 2025January 15, 2025 John Rubin

With a teaser like that, who could resist reading more? The 2025 edition of my online guide to expunctions is now available on the School of Government’s website at https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/. It is a free resource on expunctions and other forms of relief from the consequences of a criminal conviction. Compared to previous years, the 2024 legislative session was relatively quiet on the expunction front, but the General Assembly made some important changes, discussed briefly below and in more detail in the revised guide.

Shifting the Landscape for the Domestic Violence 48-Hour Rule?

November 5, 2024 Brittany Bromell

The “48-hour rule,” as it is known in domestic violence cases, has been covered on this blog numerous times over the years (see here, here, and here). The rule shifts the responsibility of setting conditions of pretrial release from magistrates to judges in certain cases involving allegations of domestic violence. The rule is set out in G.S. 15A-534.1, which provides that a judge—rather than a magistrate—must set a defendant’s pretrial release conditions during the first forty-eight hours after arrest for certain offenses.

Judicial officials and practitioners who handle criminal domestic violence cases should be familiar with both the statute and the long-standing ruling in State v. Thompson, 349 N.C. 483 (1998), that required dismissal of charges where G.S. 15A-534.1 was violated. Last year, the court of appeals decided State v. Tucker, 291 N.C. App. 379 (2023), which takes a different approach to determining the outcome of a domestic violence case that involves a 48-hour violation. This brief post details the facts of both cases and what Tucker suggests for domestic violence cases moving forward.

Indictment Technicalities: Gone Today and Here Tomorrow

November 6, 2024October 9, 2024 Joseph L. Hyde

Singleton was supposed to make things simpler. As previously reported, in that case our Supreme Court attempted to eliminate some “obsolete technicalities” of the common law by abrogating the jurisdictional indictment rule, whereby a defective pleading deprives the trial court of jurisdiction. My colleague Danny Spiegel called it a sea change. The Court of Appeals decided two cases in September that illustrate continuing complexity in this area. In State v. Pierce, COA23-348 (N.C. Ct. App. Sept. 3, 2024), the court held the trial court did not lack jurisdiction to accept a pro se defendant’s waiver of indictment, despite a statutory prohibition on such uncounseled waiver. And in State v. Wilkins, COA23-839 (N.C. Ct. App. Sept. 17, 2024), the court found the trial court lacked jurisdiction due to a fatally defective indictment. This post considers those two cases.

Violation of Conditions Before Release

October 1, 2024 Brittany Bromell

I recently taught a session at the magistrates’ conference about arrestable conditions of pretrial release. The session sparked a lot of discussion about the law surrounding pretrial conditions for in-custody defendants. It is well understood that when a defendant violates pretrial release conditions after being released from custody, the law allows several mechanisms for enforcement, including revocation of pretrial release, arrest of the defendant, and the setting of new, potentially stricter conditions of pretrial release. What’s less clear is (1) whether or not conditions of release are enforceable if a defendant has not yet been released, and (2) if they are, what tools judicial officials have for enforcement. This post addresses these questions.

State v. McLean Clarifies the Timeframe for Giving Oral Notice of Appeal to the Court of Appeals

September 18, 2024 Phil Dixon

Attorneys practicing in criminal superior court are likely familiar with the process of giving notice of appeal to the appellate division. Under Rule 4(a) of the North Carolina Rules of Appellate Procedure, a defendant can give notice by either (1) giving oral notice of appeal “at trial,” or (2) by filing a written notice of appeal within 14 days after entry of judgment and serving it on the State. A recent case explains what counts as “at trial” for purposes of giving notice of appeal. Under State v. McLean, COA 23-100, ___ N.C. App. ___ (Aug. 6, 2024), oral notice of appeal is considered made “at trial” and therefore timely as long as it is given within the session of superior court, which is typically one week. “[T]he period of time for Defendant to provide timely notice of appeal at trial commenced following sentencing and ended when the court session adjourned sine die.” McLean Slip op. at 8 (citation omitted) (emphasis in original). Although the defendant in McLean gave oral notice of appeal the morning after the pronouncement of the judgment in his case, the timing of the notice was proper, because the session had not yet ended. This post examines the holding and implications of the McLean decision.