You represent a defendant charged with DWI. You move to suppress evidence in district court. The district court enters a preliminary determination in your favor. The State appeals. The superior court disagrees with the district court and remands the case with instructions to deny your motion. Your client pleads guilty. You appeal to superior court. You want the court of appeals to consider the merits of your motion. What should you do to preserve that right?
Procedure
Is North Carolina the Only State in Which the Prosecutor Controls the Calendar?
I was on a panel about criminal case calendaring yesterday at the Courts Commission. While talking to people in preparation for the event, I kept hearing one thing: that North Carolina is the only state in which the prosecutor controls the calendar. After conducting some research, I don’t think that’s quite right.
Changes to Jury Waiver Procedures
This session, the General Assembly amended G.S. 15A-1201, which sets out the procedures for waiving a jury trial in superior court. S.L. 2015-289. This post summarizes the changes.
Eyewitness Identification Reform Act Extended to Show-Ups
Effective December 1, S.L. 2015-212 extends the Eyewitness Identification Reform Act, G.S. 15A-284.52, to cover show-ups. But the bill leaves the status of photographic show-ups in doubt and contains a strange provision regarding law enforcement officers as eyewitnesses. This post unpacks the new law.
New Edition of Online Relief Guide
At long last I have completed the 2015 edition of my online guide to relief from a criminal conviction. This free guide, available here on the School of Government’s website, covers the various forms of relief available under North Carolina law, including expunctions, certificates of relief, and other procedures. It includes changes made by the General Assembly through the end of its 2015 legislative session.
Herndon v. Herndon and Pleading the Fifth
[Author’s note: The North Carolina Supreme Court in Herndon v. Herndon, 368 N.C. 826 (2016), reversed the court of appeals’ decision discussed below. The state supreme court held that the trial court’s actions did not amount to a constitutional violation. The court concluded that the defendant did not invoke the privilege against self-incrimination and the trial court inquired into matters that were within the scope of the defendant’s testimony on direct examination.]
A recent court of appeals decision has stirred up a lot of discussion on our hall about the scope of the Fifth Amendment right to be free from self-incrimination. The case is Herndon v. Herndon, __ N.C. App. __ (October 6, 2015), and it arose from a defendant’s appeal from the entry of a domestic violence protective order against her. Before the defendant testified in the hearing to determine whether acts of domestic violence occurred, the presiding judge cautioned the defendant’s attorney: “I’m not doing no Fifth Amendment.” There’s really no question that the warning was, as one appellate judge put it, “less than artful,” but did it violate the defendant’s rights?
Must Officers Now Arrest, Rather Than Cite, for Misdemeanor Marijuana Possession?
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.
Supreme Court Preview: 2015 Term
It’s the first Monday in October, which means it’s the first day of the Supreme Court’s 2015 Term. Read on to learn about the criminal law cases that the Court will consider.
Omnibus Criminal Law Bill
The General Assembly has just adjourned for the year. Last week, it passed, and the Governor signed, an omnibus criminal law bill, S.L. 2015-247. This post briefly summarizes its main provisions.
State v. Perry, Cell Site Location Information, and the Exclusionary Rule
Last week, the court of appeals decided State v. Perry. It’s the appellate division’s first foray into cell site location information and a case that raises questions about the status of the exclusionary rule in North Carolina.