Procedure

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What Does it Mean for a Criminal Case if the Defendant is Legally Incompetent and Has a Court-Appointed Guardian?

Derek was twenty years old when he suffered a stroke. He lost and then subsequently regained his ability to speak and to perform simple tasks; however, he cannot manage important matters like his medical care and finances. Derek’s mom, Greta, successfully petitioned under G.S. Chapter 35A to have her son adjudicated incompetent and was appointed … Read more

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Immigration Detainers

An immigration detainer is one of the key tools that Immigration and Customs Enforcement (ICE) uses to apprehend individuals who come in contact with local and state law enforcement agencies. Sometimes, after a defendant has been arrested for a crime, an ICE officer will file an immigration detainer (Department of Homeland Security form I-247A) with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant.

My colleague Jeff Welty blogged about immigration detainers several years ago. Recently, my colleagues and I have received a lot of questions about the scope of judicial officials’ authority when navigating immigration detainers. This post answers some of those questions.

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When is Driving While License Revoked a Grossly Aggravating Factor?

There are six sentencing levels for Driving While Impaired (DWI) convictions. A defendant is only exposed to the three most severe levels (A1, 1, and 2) if a judge or jury finds the existence of one or more “grossly aggravating factors” beyond a reasonable doubt. These factors are listed in G.S. 20-179(c). One of them is “[d]riving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to G.S. 20‑28(a1).” Rather than applying to all revocations, G.S. 20-28(a1) applies when person’s license is revoked for an “impaired driving revocation.”  At first glance, it appears any time a person is convicted of DWI, if their license was revoked for an impaired driving revocation, this grossly aggravating factor would apply and elevate their sentencing exposure—but that may not be the case. Read on for more.

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Procedures for Criminal Bench Trials in Superior Court

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?

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Preservation Reservations in State v. Bell

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.

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New Bulletin on Social Workers in Public Defender Offices and Issues Involving Mandatory Reporting

Increasingly, public defender offices are bringing social workers in-house. As part of a growing interest in holistic defense, these offices are relying on social workers to assist with the representation of their clients in a variety of ways. Social workers can locate housing, find appropriate treatment for substance use disorder or mental illness, and improve client communication by building trust and sensitivity to clients’ needs. This work may support the presentation of mitigation evidence at sentencing, and beyond that, break cycles of involvement with the criminal justice system.

North Carolina is in the midst of a major, legislatively-funded expansion of its public defender system. The School’s Criminal Justice Innovation Lab is supporting NC Indigent Defense Services by evaluating the implementation of social work positions in public defender offices to learn more about the ways the inter-professional collaboration functions, how social work positions are structured, and common benefits and challenges of using social work staff.

During this work, a question has arisen on several occasions: how should the inter-professional defense team navigate a situation, such as learning of child abuse, where mandatory reporting laws require notification to the local department of social services (DSS) or law enforcement? Should social workers comply with state statutes and follow their own ethical code by making a report? Or does the attorney’s obligation to keep client confidences and provide effective assistance of counsel “trump” the social worker’s duty to report?

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Motor Vehicle Seizures: Temporary Release Pending Trial

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. 

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Children and Consent Searches

Some time ago, I received an email from a researcher asking whether a minor may consent to the search of his or her cell phone. The question made me realize how little I knew about children’s authority to consent to searches more generally. So I cracked some law books, and wrote this post as a primer for anyone who may be as uninformed as I was.

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Pretrial Release of Seized Motor Vehicles

In every case where a person is charged with felony speeding to elude arrest pursuant to G.S. 20-141.5(b) or (b1), the motor vehicle driven is subject to seizure and forfeiture. This is also true in DWI cases where, at the date of offense, the defendant’s driver’s license was revoked for an impaired driving revocation or the defendant did not have a valid license nor insurance. When in district court, these cases have expedited calendaring requirements (discussed here). This is in part to preserve the vehicle’s value while the case is pending. Upon seizure, the vehicle is usually first towed to a local storage facility, then transferred to the facilities of a state contractor within a few days. There are fees for towing, as well as accruing fees for storage. Whether the motor vehicle is released to its owner, a lienholder, or forfeited to the county board of education, these towing and storage fees must be paid. Often, these fees are paid out of the proceeds of the sale of the vehicle. While expediting the underlying case towards resolution is one way to minimize these fees, another is release of the vehicle before case disposition. This post addresses the circumstances under which a vehicle may be fully released pretrial and does not have to be brought back for a later forfeiture hearing.

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The Confidential Informant File: What Is It and When Must It Be Disclosed to the Defense?

I recently completed a series of posts on issues surrounding confidential informants (“CI’s”), discovery, and motions to reveal the CI’s identity. In this “bonus” post, I will discuss a related question: what is the “CI file” and when must the State turn it over to the defense? Let’s say the defense is successful in compelling … Read more