Articles in the Procedure category - Page 39 of 78

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.

Once a plea is entered pursuant to a plea agreement, the parties are bound by the agreement and failure to comply with it constitutes a breach. Occasionally questions arise about whether a breach has occurred and if so, what remedy should apply.

Sometimes a party to a plea agreement has buyer’s remorse and wants to get out of the deal. The standard for evaluating such a request varies, depending on when the motion is made.

Can a prosecutor threaten more serious charges if the defendant refuses to agree to a plea bargain? Can a plea bargain include a promise by the State to be more lenient on the defendant’s wife? Read on for answers.

In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis.