Latest posts in category Procedure on North Carolina Criminal Law Blog

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.

[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?

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.

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.

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.

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.

I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law.

I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue.

As I discussed here, the Fourth Circuit recently ruled in United States v. Graham, __ F.3d __, 2015 WL 4637931 (4^th Cir. Aug. 5, 2015), that an officer who obtained two suspects’ cell site location information (CSLI) without a search warrant violated the Fourth Amendment. (The officer used a court order based on a lower standard, as purportedly authorized by the relevant federal statute, 18 U.S.C. § 2703(d).) I’ve had a number of practical questions about Graham from officers, agency attorneys, and judges, and I thought that I would collect some of the questions here.

Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues.