Latest posts in category Procedure on North Carolina Criminal Law Blog

The ability to file a misdemeanor statement of charges is a superpower for district court prosecutors, enabling them to overcome virtually any error in a criminal pleading with the stroke of a pen. Arraignment in district court is kryptonite, robbing the superpower of its efficacy. This dynamic was on full display in State v. Capps, __ N.C. App. __, __ S.E.2d __, 2019 WL 2180435 (May 21, 2019), a recent opinion by the court of appeals.

One person convicted of misdemeanor impaired driving may be placed on probation and ordered to complete 24 hours of community service. Another may receive an active sentence of three years’ imprisonment. The severity of the sentence depends largely on the presence of aggravating factors, which must be proved by the State.

When a misdemeanor impaired driving conviction entered in district court is appealed for trial de novo in superior court, the State must notify the defendant no later than ten days before trial that it intends to prove one or more aggravating factors. G.S. 20-179(a1)(1). If the State fails to provide that notice, the factors may not be used by the superior court to determine the defendant’s sentence. The court of appeals recently affirmed in State v. Hughes, ___ N.C. App. ___ (April 16, 2019), that there is no exception to this rule for aggravating factors that were found by the district court below.

In this post, part of a series on bail reform in North Carolina, I highlight reforms that have been implemented in Orange County, North Carolina. My goal in doing so is to provide models and points of contact for jurisdictions interested in these efforts. If you’d like your jurisdiction’s work highlighted here, please reach out to me.

WRAL reports that a district court judge told a Johnston County woman not to bring her 3-month-old baby to court. Can a judge do that?

In this post, part of a series on Bail Reform in North Carolina, I discuss preventative detention of defendants who are too dangerous or who present too great a flight risk to be released pretrial. At least twenty-two states, the District of Columbia and the federal system provide for pretrial preventative detention through constitutional or statutory provisions. Although neither the North Carolina constitution nor the General Statutes expressly provide a procedure for it, pretrial preventative detention occurs in North Carolina in two ways. First, the General Statutes allow defendants charged with capital murder to be held in jail without conditions. Second, due to concerns about public safety, flight, and obstruction of justice, other defendants are intentionally detained pretrial through the imposition of unattainably high bonds. The use of a secured bond for preventative detention is an imperfect solution for this simple reason: if a high risk defendant has sufficient resources, he or she can pay the bond or bail bondsman’s fee and walk out of jail with no supervision. But for many defendants, when a judicial official sets what is meant to be an unattainably high bond for the purpose of holding a defendant pretrial, that goal is achieved: the defendant remains in detention. Preventative detention—whether implemented through a statute or through the use of unattainably high detention bonds—must comply with the constitution. In a paper (posted here) I explore the constitutional parameters of preventative detention, provide guidance to policymakers and stakeholders on the core components of a constitutionally compliant preventative detention scheme, present several model preventative detention schemes, and discuss related issues. In this post, I offer a quick summary of the constitutional requirements for preventative detention.

This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.

The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.

The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?

This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.

In a series of posts I’ve been discussing bail reform in North Carolina and various options to reduce pretrial detentions that do more harm than good. Some of the solutions are tough and complicated. Here I offer one potential solution that’s neither hard nor complex: Redesign the Criminal Summons form.

Philadelphia’s recently elected district attorney implemented a No-Cash-Bail reform policy, providing that the district attorney’s office would stop asking for cash bail for defendants charged with 25 misdemeanor and felony offenses. A study of that policy change found, among other things, that it led to an increase in defendants released with no monetary or other conditions, a decrease in the number of defendants who spent at least one night in jail, but no accompanying change in failures to appear (FTAs) or recidivism. Aurelie Ouss & Megan Stevenson, Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail (George Mason Legal Studies Research Paper No. LS 19-08, Feb. 17, 2019). Those skeptical of eliminating cash bail have argued that taking a monetary incentive out of the system would result in higher FTAs and increases in pretrial crime. Id. at 5. The new study undermines those assertions.

In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of those reforms involves a new citation in lieu of arrest program. This reform includes implementation of a law enforcement-approved tool for patrol officers to encourage the increased use of citations in lieu of arrest for certain misdemeanors, in the officer’s discretion. The tool is a Cite or Arrest Pocket Card. Although the overall 30B project was a collaborative, multi-stakeholder endeavor, only the law enforcement community participated in the creation of the Pocket Card. The content of the card is reproduced below; in reality it’s a bright blue laminated card, the same size as the Miranda Warnings card.

In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms involves providing first appearances for in-custody defendants charged with misdemeanors and Class H and I felonies (highest charge) or arrested on a probation violation within 72 hours of arrest or at the first regular session of the district court in the county, whichever occurs first. The new procedure went into effect on January 1, 2019.