Articles in the Procedure category - Page 27 of 77

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.

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.

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.

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?

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”:

An experienced attorney from another state recently remarked on her surprise at learning that there was no statute of limitations barring the prosecution of felony offenses in North Carolina after the passage of a specified period of time. This attorney’s comment reminded me that while the no-statute-of-limitations-state-of-affairs may be well-known among experienced practitioners of criminal law in NC, it isn’t necessarily known by others. 

Interest in bail reform is heating up in North Carolina. The Chief Justice’s North Carolina Commission on the Administration of Law and Justice recommended implementing evidence-based pretrial justice reform, and reform already is happening in several counties. The North Carolina Courts Commission took up the issue at its September 2018 meeting and Attorney General Josh Stein recently announced a stakeholder Roundtable on the topic. Among the reasons for the interest is this: Litigation risk. Advocates of bail reform have racked up wins in other jurisdictions. In March, I wrote (here) about a recent Fifth Circuit decision holding that the bail system in Harris County Texas violated due process and equal protection. (That opinion was superseded after rehearing but the court’s holding remains essentially the same). In August, the Eleventh Circuit decided Walker v. City of Calhoun, GA, ___ F.3d ___, 2018 WL 4000252 (11th Cir. Aug. 22, 2018). Here’s what happened there:

Earlier this week, the students and I spent the afternoon at Central Criminal Court in London, formerly called the Old Bailey and located at the intersection of Old Bailey and Newgate streets in the heart of London’s law district. I can guarantee that this post will not be as captivating as Rumpole of the Bailey, the British television series about fictional barrister Horace Rumpole. But, like most trips to court, it was certainly interesting.

As far as I know, July 21, 2015, was a pretty normal day at the North Carolina Court of Appeals. The court published around a dozen opinions. Most of them dealt with issues like worker’s compensation and equitable distribution, but there were a few criminal cases. One of them was State v. Saldierna, a juvenile interrogation case, which was later reversed. Bob Farb blogged about that here.

In other words, just another day at the office.

The court also released more than 30 additional opinions on the same day, on the same website, written by the same judges, and many of them addressed hot-button criminal topics like lay witness identification of drugs, custodial interrogations of juveniles, sufficiency of a drug indictment, and improper closing arguments.

But those cases were marked as “unpublished,” so we all pretty much just ignored them and pretended they didn’t happen.

Wait… what? What are unpublished cases? We’re told that citing to them is “disfavored,” so are they good law or not? Who decides which cases make the cut for publication? And more importantly — why? In a digital world where cases are available online, what does “unpublished” really mean? And why are we talking about July 21, 2015?

So many questions. I have one or two answers.

Presentments have been a hot topic lately and the court of appeals just issued a decision involving a presentment. This post explains the controversy and the significance of the recent opinion.