In recent years North Carolina has made several reforms in the field of collateral consequences, expanding opportunities for expunctions of convictions, authorizing courts to issue certificates of relief to limit collateral consequences, and requiring that licensing agencies consider whether a nexus exists between applicants’ criminal conduct and their prospective duties, among other factors. See G.S. 93B-8.1. The changes are helpful but incremental. Our most recent criminal justice class challenged the extensive reliance on collateral consequences in the U.S., the effectiveness of current remedies, and ultimately barriers to reintegration into society of people who have previously been convicted of a crime.
Procedure
Not-Quite-Defective Indictments
Ordinarily, a pleading that fails to accurately allege every element of the offense is defective and is treated as a jurisdictional nullity. See, e.g., G.S. 15A-924(a)(5) (“as a prerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge”); State v. Harris, 219 N.C. App. 590 (2012) (indictment is invalid and confers no jurisdiction on the trial court if it “fails to state some essential and necessary element of the offense”).
The limited exception to this rule is the somewhat relaxed pleading standard for a citation, which may still be sufficient even if it fails to state every element, as long as it reasonably identifies the crime charged. Shea Denning and Jeff Welty covered that issue in a series of posts available here, here, and here.
Several recent cases from the Court of Appeals have offered a good reminder about another important corollary to the general rule for pleadings: although an indictment must “allege every element” in order to be valid, the state has quite a bit of flexibility in how that standard can be met.
Would Daniel M’Naughten Have Satisfied the M’Naughten Test for Insanity?
In February 1843, Daniel M’Naughten was tried in London for the murder of Edward Drummond, the private secretary to Prime Minister Robert Peel. M’Naughten was laboring under the delusion that Prime Minister Peel was part of a system that was persecuting him. Only by shooting Peel could he end the torment. Drummond became the victim of these delusions when M’Naughten mistook him for Peel. The trial of M’Naughten, the verdict of insanity, and the aftermath made legal history.
New Crime Covers Threats of Mass Violence at School
Schools across the country experienced a “dramatic uptick” in threats of school-related violence following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018. One set of researchers reported that in the thirty days after the Parkland shooting, threats and incidents of violence in schools nationally increased by more than 300 percent–from an average of 13.2 threats and incidents per day to 59.4 per day. The national trend played out in North Carolina as well, with schools in several North Carolina counties responding to several reported threats of violence in the weeks following the Parkland massacre. When such threats were made, it wasn’t always clear whether they amounted to a crime. The actions often were a poor fit for the two most obvious candidates: communicating threats (because the threat was not always communicated to the person threatened) and making a false report concerning mass violence on educational property (because it wasn’t always clear that the person who made the threat had made a report that the person knew to be false).
The General Assembly responded last June to this gap in the criminal code by enacting a new crime, communicating a threat of mass violence on educational property, effective for offenses committed on or after December 1, 2018.
Sherlock Holmes and Modern Forensics
My recent criminal justice class involved forensics so, being in London, it seemed only fitting to take a look at Sherlock Holmes and his methods. What was the impact of Arthur Conan Doyle’s fictional character on the development of forensics? What can we learn from Holmes more than 130 years after his first appearance in the classic A Study in Scarlet?
UNC vs. UK in London!
It was an epic throw down between two powerhouse teams on Monday in the heart of London. I don’t mean basketball. I certainly don’t mean football. I mean the moot court competition between UNC’s School of Law students and Middle Temple’s barristers-in-training (see earlier post this fall about Middle Temple). No winner was declared, to the disappointment of my students who were rooting on their fellow Tar Heels. But, the teams racked up the legal and educational points.
Triple Testimony: Expert Witness, Fact Witness, and Lay Opinion
Like most of the rest of the country, I followed the recent confirmation hearings for Judge (now Justice) Kavanaugh with great interest.
As the readers of this blog already know, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Judge Kavanaugh sexually assaulted her in high school. Much of her testimony recounted her recollection of that event, but some of her testimony was of a different nature. In addition to telling the Committee what she recalled, Dr. Ford also described the biological and chemical processes of memory itself, such as the way that neurotransmitters encode memories into the hippocampus.
In other words, Dr. Ford testified in dual roles: she was both a fact witness and a de facto expert witness.
Most of us will never participate in a Supreme Court confirmation hearing, but a similar type of dual testimony can arise in criminal trials in state court, and it raises some interesting issues.
Procedural Fairness: How to Do It and Why It Matters
More than 200 district court judges from districts across North Carolina convened last week for their semiannual conference. Much of the continuing education agenda was dedicated to informing judges about the controlling law for the types of cases over which they preside—criminal, family and juvenile. But one session had a different focus. Instead of teaching judges how to “get outcomes right,” Judges Kevin Burke and Steve Leben talked to the group about how to handle procedural matters in a “way that enhances perceptions of fair treatment.” Kevin Burke & Steve Leben, The Evolution of the Trial Judge from Counting Case Dispositions to a Commitment to Fairness, 18 Widener L. J. 397, 403-04 (2009) [hereinafter Evolution]. The presenters made the case that institutionalizing principles and practices of procedural fairness can increase public support for and confidence in the courts, leading to greater acceptance of court decisions, greater public approval of the court system and increased compliance with court orders.
Is the Statute of Limitations Jurisdictional or Waivable?
Last week, I blogged about the lack of a statute of limitations for felony offenses in North Carolina. There is, of course, a two-year statute of limitations for misdemeanors, a matter that has been the subject of a fair amount of recent litigation. A reader posed an excellent question at the end of that post: Is the statute of limitations a defense that may be waived or does a trial court lack jurisdiction over a time-barred offense?
A Short Brief on Representation by Counsel in the UK
Our trip to Middle Temple, one of the four Inns of Court in London, did not disappoint. It is physically stunning, a collection of beautiful courtyards and historic buildings. As important, it is a center of education, activity, chambers (law offices), and support for legal professionals. Plus, if you’re a member or a lucky guest, you get to eat in the Middle Temple “cafeteria”: