Procedure

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part IV, How Federal and State Courts are Handling CI Video and Audio Recordings

Special thanks to Sheridan King, Summer Law Fellow at UNC SOG, for her significant contributions to the research and development of this post.

The previous post of this multi-part series on confidential informants (“CI’s”) delved into possible approaches to handling video and audio recordings of confidential informant activity (Parts I and II can be found here and here). CI activity is often recorded during the “main event” (the incident for which the defendant is indicted) and during “lead-up buys” (controlled purchases that create probable cause to search a location). Though trial courts throughout North Carolina regularly determine when CI recordings must be turned over to the defense, there is a scarcity of North Carolina appellate law on the subject. Thus, this post will look to other jurisdictions, including federal district courts and other states, to survey how judges are reckoning with these emerging issues pertaining to discovery, the defendant’s constitutional right to a fair trial, and the State’s interest in protecting the identity of informants.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part III, How to Handle the Video

This is Part III of a multi-part series on confidential informants. Earlier posts focused on the foundational concepts of U.S. v. Roviaro, 353 U.S. 53 (1957), here, and the applicable North Carolina statutes here. Today’s post explores the novel issues that arise as more and more confidential informant (“CI”) interactions are recorded on video.

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Posting a Cash Bond: Who Gets the Money After a Defendant’s Case is Complete?

When a person is arrested, a law enforcement officer must take that person before a judicial official without unnecessary delay. G.S. 15A-501(2). Subject to certain statutory exceptions, defendants charged with most non-capital offenses are entitled to pretrial release. G.S. 15A-533(b).

G.S. 15A-534 requires that at least one of five conditions of pretrial release be imposed before a defendant can be released. One type of release condition a judicial official may impose on a defendant is a secured bond. A bail bond may be secured in one of three ways: a cash deposit of the full amount of the bond, a mortgage by the defendant pursuant to G.S. 58-74-5, or by at least one solvent surety.

Judicial officials frequently impose secured bonds and accept cash in satisfaction of those bonds. However, people posting those cash bonds—whether it be the defendant or a person posting on behalf of the defendant—may not always fully understand the procedure surrounding cash bonds. This post addresses the common question of who is entitled to a refund of the cash at the conclusion of the case and how a person can preserve their interest in the cash pending the outcome of the case.

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NC Supreme Court Holds that Media Entities May Seek Access to Law Enforcement Recordings by Filing a Petition

In March 2021, several news organizations filed a petition in Alamance County Superior Court seeking the release of law enforcement recordings of an “I Am Change” march that took place in Graham, North Carolina in October 2020. Marchers and law enforcement had clashed, and several people were arrested. The superior court held a hearing and ultimately ordered all of the requested recordings released without redaction.

After assessing the eight statutory considerations, the superior court explained that even though the release of the recordings would reveal highly sensitive and personal information that could harm a person’s reputation or safety, it did “not have the authority to [c]ensor this information absent a legitimate or compelling [] state interest to do so.”  In re The McClatchy Co., No. 29A23, ___ N.C. ___ (May 23, 2024). The court noted that it gave “great weight to transparency and public accountability with regard to police action” and that failure to release the information could “undermine the public interest and confidence in the administration of justice.” Id. The Graham Police Department (GPD) appealed.

The Court of Appeals, over a dissent, vacated the release order and remanded for additional findings of fact. The petitioners appealed. On appeal, the GPD argued that the trial court lacked subject matter jurisdiction over the petition because the media companies were required to file a civil action rather than a petition. See In re Custodial L. Enf’t Agency Recording, 288 N.C. App. 306, 311 (2023) (so holding).

The North Carolina Supreme Court, in an opinion authored by Justice Allen, rejected GPD’s contention that the trial court lacked subject matter jurisdiction because the petitioners filed a petition instead of a complaint. The Court then proceeded to hold that the trial court misunderstood the scope of its authority in ordering release, explaining that a trial court granting such release may place any conditions or restrictions on the release that it deems appropriate.

This post will review G.S. 132-1.4A, the North Carolina Supreme Court’s opinion in In re The McClatchy Co., ___ N.C. ___ (May 2024) [hereinafter McClatchy], and will consider McClatchy’s import for those seeking and considering release.

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A Pink Shirt on Wednesday: State v. Singleton and the End of the Common Law Jurisdictional Indictment Rule

In its last batch of opinions, issued May 23, 2024, the North Carolina Supreme Court decided two indictment cases: State v. Singleton, No. 318PA22, __ N.C. __ (2024), and State v. Stewart, No. 23PA22, __ N.C. __ (2024). Stewart closely follows a recent precedent (In re J.U., 384 N.C. 618 (2023), discussed here), holding that nonconsensual sexual contact necessarily implies force, so an indictment alleging nonconsent need not also allege “the element of force.” Stewart, Slip Op. 8. Singleton, however, is by far the more significant. Beyond finding no defect in the indictment under review, the Supreme Court there announced the demise of the common law rule that an indictment that fails to allege all the elements of the offense is jurisdictionally defective. This post examines the new framework of indictment defects inaugurated by Singleton.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part II, What Statutes Apply?

In Part I of a series of posts on confidential informants, I revisited the landmark case of U.S. v. Roviaro, which began when a Chicago police officer hid in the trunk of an informant’s car to listen in on a heroin deal. The U.S. Supreme Court held that the officer in the trunk was no substitute for the confidential informant (“CI”) in the driver’s seat and required disclosure of the CI’s identity to the defense. I also introduced the basic dichotomy set out in Roviaro: generally, where the CI is more of a tipster, the CI’s identity need not be revealed, but where the CI is an active participant, the defense is entitled to it. The constitutional underpinnings of this distinction, based on due process and confrontation principles, continue to guide courts today, although the analysis has evolved.

This second post will address the North Carolina statutes at play. These statutes complicate and refine the basic constitutional question of whether fundamental fairness requires the State to turn over the CI’s identity.

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When May the State Use Evidence of a Defendant’s Silence Before Trial?

A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue:  When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.)

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Sufficient to Allege: Short-circuiting Short-forms in State v. Singleton and State v. Crowder

Statutes prescribing simplified charging language were intended to alleviate the burdensome pleading requirements of the common law.  See Wayne R. LaFave, et al., Criminal Procedure § 19.1(c).  Indeed, where a short-form pleading is statutorily authorized, it is not necessary to allege all the elements of the offense.  See State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983).  But how closely must a short form track the language prescribed by statute?  The Court of Appeals recently decided a couple of cases that address the issue.  This post considers those cases.

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Just Say No to Commenting on the Defendant’s Failure to Testify

While a prosecutor in a criminal trial may comment on a defendant’s failure to produce witnesses or evidence to contradict or refute the State’s case, a prosecutor may not make any reference to or comment on a defendant’s failure to testify. Such remarks violate both a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence (see U.S. Const. Amend. V, N.C. Const. art. I, § 23) and G.S. 8-54, which provides that no person charged with a crime may be compelled to testify or “answer any question tending to criminate himself.” This rule rests on the notion that allowing extended reference by the court or counsel concerning the defendant’s failure to testify would “nullify the policy that failure to testify should not create a presumption against the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).

The prohibition against such remarks encompasses even those that parrot the pattern jury instructions by acknowledging that a defendant may elect not to testify and that such an election may not be used against him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court must undertake curative measures to inform the jury both that the remarks were improper and that the defendant’s failure to testify may not be used against him. Id. at 556. If the trial court fails to take such remedial measures and an appellate court deems the error prejudicial, a new trial will be ordered. Id. at 557. The Court of Appeals applied these principles recently in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).

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