With a teaser like that, who could resist reading more? The 2025 edition of my online guide to expunctions is now available on the School of Government’s website at https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/. It is a free resource on expunctions and other forms of relief from the consequences of a criminal conviction. Compared to previous years, the 2024 legislative session was relatively quiet on the expunction front, but the General Assembly made some important changes, discussed briefly below and in more detail in the revised guide.
Procedure
Confidential Informants, Motions to Reveal Identity, and Discovery: Part VI, Motions to Suppress and the “Two Officer Rule”
For the final installment of this series on confidential informants, motions to reveal identity, and discovery, we will look at a unique statute in North Carolina concerning when the identity of a confidential informant (CI) must be revealed: G.S. 15A-978(b). This statute only applies to motions to suppress, rather than trial. Recall back to Part I of this series, which addressed Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro established the basic factors to consider when deciding whether the State must disclose the identity of the CI to the defendant to ensure a fair trial. Another U.S. Supreme Court case decided ten years later, however, McCray v. State of Ill., 386 U.S. 300 (1967), addressed the separate but related question of when the defendant is entitled to learn the CI’s identity to have a fair opportunity to litigate a motion to suppress.
At a motion to suppress, the considerations are somewhat different from trial. The last several posts addressed the question of when testimony from the CI is material in determining whether or not the defendant is guilty. In contrast, the question at the motion to suppress stage is not the guilt or innocence of the defendant. The question in CI cases is usually whether a search or seizure violated the defendant’s Fourth Amendment rights. The issues to be decided may be whether law enforcement had good reason to rely on information provided by the CI, whether law enforcement corroborated the information, or whether the officers are being truthful about their interactions with the CI. G.S. 15A-978(b) addresses a related, but narrow question: can we rely on the officer’s assertion that the CI exists?
Shifting the Landscape for the Domestic Violence 48-Hour Rule?
The “48-hour rule,” as it is known in domestic violence cases, has been covered on this blog numerous times over the years (see here, here, and here). The rule shifts the responsibility of setting conditions of pretrial release from magistrates to judges in certain cases involving allegations of domestic violence. The rule is set out in G.S. 15A-534.1, which provides that a judge—rather than a magistrate—must set a defendant’s pretrial release conditions during the first forty-eight hours after arrest for certain offenses.
Judicial officials and practitioners who handle criminal domestic violence cases should be familiar with both the statute and the long-standing ruling in State v. Thompson, 349 N.C. 483 (1998), that required dismissal of charges where G.S. 15A-534.1 was violated. Last year, the court of appeals decided State v. Tucker, 291 N.C. App. 379 (2023), which takes a different approach to determining the outcome of a domestic violence case that involves a 48-hour violation. This brief post details the facts of both cases and what Tucker suggests for domestic violence cases moving forward.
Confidential Informants, Motions to Reveal Identity, and Discovery: Part V, Asserting a Defense Theory
This is Part V of a multi-part series on confidential informants (“CI’s”), motions to reveal the identity of CI’s, and discovery.
As discussed in earlier posts in this series (here and here), the defense is more likely to win a motion to reveal the identity of CI when the defendant is able to tie the potential CI testimony to a particular theory of defense and explain how it furthers that defense. In the landmark case of Roviaro v. U.S., the U.S. Supreme Court listed a variety of ways in which the CI’s testimony might be helpful for the defense and ruled that the CI’s identity must be turned over. However, North Carolina appellate courts have repeatedly stated that the defense cannot merely speculate about how the CI’s testimony might be relevant; the defense must clear an initial hurdle of showing how the testimony might resolve a material conflict at trial in order to prevail on a motion to reveal the identity of the CI. See State v. Dark, 204 N.C. App. 591, 593 (2010); State v. Watson, 303 N.C. 533 (1981). While defenders may invoke their federal due process rights in challenging whether this should be a requirement, they should be aware of what North Carolina appellate courts are demanding.
An interesting strategic implication of Dark and Watson is that in CI cases, the defense may benefit from committing to a particular theory of defense and “showing its cards” to the state in a pretrial hearing. Defenders are often reluctant to call their client to the stand, even in a pretrial hearing, unless the defendant’s testimony appears to be necessary or exceptionally persuasive. Defenders may be concerned about the risk of damaging cross-examination and the possibility that the testimony of an unsavvy client might hurt the case, even where the client is telling the truth (discussions of this dilemma in the media can be found here and here). In cases where there is a viable motion to reveal the identity of the CI, though, the risk will sometimes be worth the possible reward. The prospect of winning a dismissal, a concession in plea negotiations, or suppression of key evidence may counterbalance a tendency by the defense to avoid putting the client on the stand in a pretrial hearing.
Indictment Technicalities: Gone Today and Here Tomorrow
Singleton was supposed to make things simpler. As previously reported, in that case our Supreme Court attempted to eliminate some “obsolete technicalities” of the common law by abrogating the jurisdictional indictment rule, whereby a defective pleading deprives the trial court of jurisdiction. My colleague Danny Spiegel called it a sea change. The Court of Appeals decided two cases in September that illustrate continuing complexity in this area. In State v. Pierce, COA23-348 (N.C. Ct. App. Sept. 3, 2024), the court held the trial court did not lack jurisdiction to accept a pro se defendant’s waiver of indictment, despite a statutory prohibition on such uncounseled waiver. And in State v. Wilkins, COA23-839 (N.C. Ct. App. Sept. 17, 2024), the court found the trial court lacked jurisdiction due to a fatally defective indictment. This post considers those two cases.
Violation of Conditions Before Release
I recently taught a session at the magistrates’ conference about arrestable conditions of pretrial release. The session sparked a lot of discussion about the law surrounding pretrial conditions for in-custody defendants. It is well understood that when a defendant violates pretrial release conditions after being released from custody, the law allows several mechanisms for enforcement, including revocation of pretrial release, arrest of the defendant, and the setting of new, potentially stricter conditions of pretrial release. What’s less clear is (1) whether or not conditions of release are enforceable if a defendant has not yet been released, and (2) if they are, what tools judicial officials have for enforcement. This post addresses these questions.
A Common Calendaring Concern: The Unilateral Reset
A question that arises with some frequency is whether the district attorney is free to unilaterally “reset” a matter in superior court by changing the trial date after a date has been set by the court.
At the outset, it’s important to distinguish between the scenario in which the State intentionally resets a case and that where a clerical error results in a case being unintentionally left off a trial calendar. Where the omission arises from an administrative error, the delay will likely be attributed to the State as part of any future speedy trial analysis, and it may be considered negligent, or at least “neglectful,” delay. See Barker v. Wingo, 407 U.S. 514 (1972); State v. Pippin, 72 N.C. App. 387, 395 (1985). But what about when the State intentionally resets a case after it has been scheduled for a particular trial date? In this scenario, the court has set a trial date, but when it comes time for the State to publish the trial calendar, the case is missing because the State intentionally omitted it or moved it to another setting.
Depending on where you practice, you may be thinking, “Of course the DA cannot unilaterally reset the case. The trial date was established by court order, and neither party is free to disregard a court order.” Alternatively, you may be thinking, “Doesn’t the DA have calendar control?” See G.S. 7A-61 (“the district attorney shall prepare the trial dockets”). See generally, Michael Crowell, Control of the Calendar in Criminal District Court, UNC Sch. of Gov’t (July 2010).
State v. McLean Clarifies the Timeframe for Giving Oral Notice of Appeal to the Court of Appeals
Attorneys practicing in criminal superior court are likely familiar with the process of giving notice of appeal to the appellate division. Under Rule 4(a) of the North Carolina Rules of Appellate Procedure, a defendant can give notice by either (1) giving oral notice of appeal “at trial,” or (2) by filing a written notice of appeal within 14 days after entry of judgment and serving it on the State. A recent case explains what counts as “at trial” for purposes of giving notice of appeal. Under State v. McLean, COA 23-100, ___ N.C. App. ___ (Aug. 6, 2024), oral notice of appeal is considered made “at trial” and therefore timely as long as it is given within the session of superior court, which is typically one week. “[T]he period of time for Defendant to provide timely notice of appeal at trial commenced following sentencing and ended when the court session adjourned sine die.” McLean Slip op. at 8 (citation omitted) (emphasis in original). Although the defendant in McLean gave oral notice of appeal the morning after the pronouncement of the judgment in his case, the timing of the notice was proper, because the session had not yet ended. This post examines the holding and implications of the McLean decision.
Outsourcing Reasonableness: Redefining Defensive Force in State v. Phillips.
Coke claimed the common law was the perfection of reason. Our Supreme Court began its recent opinion in State v. Phillips, No. 281A23 (N.C. Aug. 23, 2024), by citing Coke, albeit for a different proposition (i.e., a person’s home is his castle). Construing G.S. 14-51.2, our Supreme Court held that the legislature has abrogated the common law rule that prohibited excessive force in defense of the home. The trial court erred therefore in instructing the jury that the defendant homeowner did not have the right to use excessive force. This post examines the recent opinion in Phillips.
Advice for Defenders Handling H & I Felonies in District Court
Shea wrote about changes to the law around the practice of entering low-level felony pleas in district court last fall, here. More and more districts have begun adopting the practice of accepting guilty pleas to class H and I felonies in district court since then. In light of the expansion of the practice across North Carolina, I wanted to remind defenders of the rules and best practices when entering a felony guilty plea in district court. Read on for the details.