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Business Records: Posts, Chats, and Texts

Several prior posts on this blog have addressed authenticating and admitting digital evidence like social media posts and text messages (see here, here, here, and here) and we’ve also previously covered the basic rules and requirements for using the business records hearsay exception (see here, here and here), but we’ve not yet explored the questions and issues that arise when those two topics collide.

For example, if the state obtains a complete copy of a suspect’s account records from Facebook, Twitter, or AT&T, including user-generated content such as messages, chats, texts, and posts, can that evidence be admitted as a business record? I recently had an opportunity to talk about digital evidence with prosecutors in several other states, and there are opposing views in different jurisdictions about the correct answer to this question. This post looks at the conflicting interpretations, the North Carolina guidance we have so far, and an interesting alternative approach.

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All the Expunction Developments through 2020

I am happy to announce the completion of the 2020 Edition of my online guide to expunctions and other relief from a criminal conviction in North Carolina. It took me a while to dissect and incorporate all the changes into the previous, 2018 online edition. (It would have taken far longer to update the guide without the patient and painstaking work of Owen Dubose of the School’s publications division.) If I missed anything or got anything wrong, please let me know. Here is what you’ll find in the new edition.

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News Roundup

Video of a Salisbury Police Department K9 handler hoisting a police dog, Zuul, by his leash and slamming him into the side of a vehicle during a training exercise made local and national headlines this week and is under review by the department.  Salisbury Police Chief Jerry Stokes said at a press conference, which Zuul attended, that an outside agency is reviewing the incident to determine whether the handler’s actions were proper methods of training.  Keep reading for more news.

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News Roundup

Carolina Public Press reports that Governor Cooper’s administration and the NC NAACP have reached a settlement in a lawsuit challenging the constitutionality of the conditions of confinement in North Carolina prisons during the ongoing pandemic.  The report says the settlement provides for the early release of 3,500 people over the next 180 days and notes that the prison population has decreased by about 6,000 people since February of last year.  In addition, an anonymous complaint system must be established for incarcerated people to report noncompliance with virus mitigation requirements.  Keep reading for more news.

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New Orange County, North Carolina Bail Reform Initiatives

In late 2020 and early 2021, stakeholders in Orange County, North Carolina implemented new bail reform initiatives. The new initiatives build on earlier efforts. Specifically, stakeholders already had funded a county pretrial services program; adopted an empirical risk assessment tool to inform judges’ pretrial decision-making; established a “strike order court,” affording relief from court non-appearances in appropriate cases; instituted pre-arrest diversion with law enforcement support; and established specialized courts to more effectively address the needs of those who enter the criminal justice system because of underlying issues such as poverty, homelessness, substance use, and mental health concerns. Additionally, local police departments and the sheriff’s office had implemented new policing practices, such as citation in lieu of arrest, to promote the county’s pretrial goals. And in 2018, the Orange County Board of County Commissioners approved a resolution supporting the 3DaysCount initiative, a national effort to improve community safety by applying common sense solutions to pretrial justice issues. Notwithstanding these efforts and actions and the statutory mandate that conditions other than secured bond must be imposed unless the judicial official finds certain factors, G.S. 15A-534(b), data showed that secured bonds continued to be the most common condition of pretrial release used in the county, even in misdemeanor cases. Stakeholders also reported concerns that low-risk individuals were being unnecessarily detained pretrial on money bonds they could not pay.

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Legal Questions Arising from Inclusion of Young Children in Delinquency Jurisdiction

Children in North Carolina can be tried as respondents in delinquency proceedings for their actions beginning at age 6. The inclusion of young children in delinquency jurisdiction, some of whom may be young enough to remain staunch believers in Santa and to eagerly await a visit from the tooth fairy or the Easter bunny, raises significant legal questions in light of their developmental maturity. Those questions include:

  • whether the infancy defense should play a role in delinquency proceedings?
  • whether the capacity standard used in delinquency proceedings should explicitly account for developmental immaturity?
  • at what point do children develop the skills necessary to function as a competent respondent?

A new Juvenile Law Bulletin, Including Young Children in Delinquency Jurisdiction: Issues of Infancy and Capacity, is now available and discusses these issues in-depth. This blog provides some highlights of the bulletin.

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Facts and Figures for the North Carolina Court System

Twice over the last few weeks, I have been asked to teach public officials about North Carolina’s courts. In my day-to-day work, I spend a lot of time thinking about what our court officials do in particular cases and the law that governs those choices. I less often consider the structure in which they carry out that work. In preparing to talk about that broader topic, I gathered a few thoughts and, more importantly, links to important resources that I thought readers might find of interest.

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News Roundup

A multi-state search for a woman wanted in connection with a January murder at a Hickory furniture plant is ongoing this week and a U.S. Marshal said that there is a good chance that the woman and her husband, who also is wanted on suspicion of being an accessory after the fact, are still in the greater Hickory area.  Keep reading for more on this story and other news.

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