North Carolina Criminal Law

Bail Reform in North Carolina—Pilot Project: Citation in Lieu of Arrest

March 14, 2019March 14, 2019 Jessica Smith

In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of those reforms involves a new citation in lieu of arrest program. This reform includes implementation of a law enforcement-approved tool for patrol officers to encourage the increased use of citations in lieu of arrest for certain misdemeanors, in the officer’s discretion. The tool is a Cite or Arrest Pocket Card. Although the overall 30B project was a collaborative, multi-stakeholder endeavor, only the law enforcement community participated in the creation of the Pocket Card. The content of the card is reproduced below; in reality it’s a bright blue laminated card, the same size as the Miranda Warnings card.

Bail Reform in North Carolina—Pilot Project: First Appearances for All Defendants

March 13, 2019 Jessica Smith

In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms involves providing first appearances for in-custody defendants charged with misdemeanors and Class H and I felonies (highest charge) or arrested on a probation violation within 72 hours of arrest or at the first regular session of the district court in the county, whichever occurs first. The new procedure went into effect on January 1, 2019.

Emojis in Court

March 12, 2019March 12, 2019 Jonathan Holbrook

Love them or hate them, it looks like “emojis” are here to stay. As of this writing, more than 3,000 emojis have been officially recognized, standardized, and named by the Unicode Consortium (a group that cares very deeply about emojis, among other things) and they have been adopted for widespread use on cell phones, tablets, email clients, and social media platforms.

Emojis now exist as a way to succinctly express everything from the ordinary and familiar ( smiling face; thumbs-up) to the surprisingly specific ( mountain cableway; moon viewing ceremony) to the routinely misunderstood ( not “angry” but rather “persevering face;” not “shooting star” but rather “dizzy”), to the criminally repurposed ( snowflake to mean cocaine; rocket to mean high drug potency).

The explosive growth of this alternative form of communication is raising some interesting questions for criminal attorneys and the court system as a whole. Should emojis be considered “statements,” on equal footing with written or spoken words? If they’re not statements, then what are they? Who decides what is meant by the use of a particular emoji? Do they have to be published to the jury and included in the record as images, or can they be summarized and described by words? What should practitioners do to make sure that emojis are accurately reflected in transcripts, court orders, and appellate opinions, since many court systems are text-based and do not allow for the inclusion of images?

Let’s about it.

May a Magistrate Conduct an Initial Appearance at a Hospital?

March 11, 2019 Jeff Welty

Sometimes a defendant is injured prior to or during arrest. When the injury is serious, the defendant may need to go directly to the hospital. May a judicial official, such as a magistrate, come to the hospital to conduct the defendant’s initial appearance? A federal magistrate judge did just that for Dzokhar Tsarnaev, the Boston Marathon bomber, and I’m told that some North Carolina magistrates have occasionally done the same.

News Roundup

March 13, 2019March 8, 2019 Christopher Tyner

As WRAL reports, the General Assembly passed and Governor Roy Cooper signed legislation that repeals the 2017 law designed to reduce the number of seats on the Court of Appeals from 15 to 12 over time. When it was passed, the plan to reduce the number of seats on the court caused Judge Doug McCullough to unexpectedly retire from the bench so that his seat would not be eliminated. The enactment of the new law keeping the number of seats on the court at 15 is intended to end litigation over the controversial measure.

New Punishment Chart Available

March 7, 2019 Jamie Markham

I’m pleased to announce the availability of the School of Government’s 2018 Punishment Chart for North Carolina Crimes and Motor Vehicle Offenses.

Should Prosecutors Change the Way They Work?

April 29, 2019March 6, 2019 Shea Denning

Advocates of criminal justice reform have called for numerous policy changes in recent years, including raising the age of juvenile jurisdiction, eliminating or reducing reliance on money bail, decreasing monetary penalties for poor defendants, ending license revocations as a sanction for failing to appear for court or pay monies owed, and abandoning mandatory minimum sentencing. Many have also advocated for a re-examination of the role of the prosecutor, suggesting that prosecutors could better channel their power and discretion to lessen racial disparities, reduce recidivism, rehabilitate offenders, and cut rates of incarceration. Two reports published last December focus on this re-envisioned prosecutorial function. The first, 21 Principles for the 21^st Century Prosecutor, suggests practical steps that prosecutors can take to reduce incarceration and increase fairness. The second, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, explores what prosecutors in four prosecutorial districts think about definitions of success, office priorities, community engagement, and racial disparities.

Letting the Jury Know about “Collateral” Consequences of a Conviction

March 5, 2019March 5, 2019 John Rubin

Under North Carolina law a criminal defendant has the right to inform the jury of the punishment for the crime being tried. In State v. McMorris, 290 N.C. 286 (1976), the North Carolina Supreme Court traced this right back to the mid-19th century. Back then, the legislature took umbrage at a judge’s refusal to allow a lawyer to argue both the law and facts to the jury and enacted what is now G.S. 7A-97. That statute states that “the whole case as well of law as of fact may be argued to the jury.” The Supreme Court in McMorris held that this provision gave the defendant the right to inform the jury of the statutory punishment in the case. The Court observed: “In a real sense the sanction prescribed for criminal behavior is part of the law of the case.” 290 N.C. at 287.

Compensation of North Carolina Judges

March 4, 2019 Jeff Welty

The National Center for State Courts just released new rankings of judicial salaries. How does North Carolina fare?

News Roundup

March 1, 2019 Christopher Tyner

As WRAL reports, McCrae Dowless was charged with several felonies this week related to his alleged involvement in the Bladen County absentee ballot saga that has made North Carolina’s 9th Congressional District race a subject of national interest. Dowless was arrested on Wednesday and charged with obstruction of justice, conspiracy to commit obstruction of justice, and illegal possession of an absentee ballot. Four other people also were charged for their alleged involvement in the scheme. Wake County District Attorney Lorrin Freeman said that the investigation is ongoing and that additional charges may be forthcoming. Last week, the State Board of Elections decided that a new election would be held for the congressional seat, and a date for that contest is expected to be announced on Monday. Keep reading for more news.