Suppose a defendant is found responsible in district court for one of the many infractions codified in Chapter 20. Take your pick: speeding, a seat belt violation, jaywalking, improper passing, or one of the many other non-criminal motor vehicle offenses. The defendant wishes to appeal that adjudication. May she appeal the case to superior court?
Who Goes Last?
In my previous post, I wrote about who goes first when presenting evidence at a suppression hearing or trial, and the circumstances under which the normal order of presentation could be changed. This post addresses the obvious follow-up question: who goes last?
In a routine (non-capital) jury trial, which side gets the all-important final word with the jury before they start deliberating?
The rule itself is simple and straightforward. If the defense offers any evidence, then the state gets the final argument (plus an opening address); if the defense does not offer any evidence, then the defense gets the final argument (plus an opening address). See G.S. 7A-97; N.C. Gen. R. Prac. Super. & Dist. Ct. 10.
That sounds pretty clear. But what exactly does it mean to say that the defense “offered evidence” at trial? That’s where things start to get a little more interesting.
Easy Come, Easy Go: Legislature Removes Affidavit Requirement for Citizen-Initiated Criminal Process
About a year ago, I wrote this post, discussing what was then a new provision in G.S. 15A-304(b): “[A]n official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit.” This year, the General Assembly reversed course and removed the affidavit requirement.
News Roundup
Late last week a man involved in a long running dispute with Annapolis newspaper the Capital Gazette stormed the paper’s newsroom with a shotgun, killing five people and wounding several others. The Gazette itself has extensive coverage of the incident. Reports suggest that the suspect, Jarrod W. Ramos, had been upset with the Gazette for some time because of an article the paper ran in 2011 regarding his guilty plea to a criminal harassment offense. Ramos tried unsuccessfully to sue the paper for defamation and otherwise harassed Gazette staff over several years. He has been charged with five counts of first-degree murder. Yesterday, newsrooms across the country held a moment of silence for the victims at 2:33 pm, marking the precise time of the attack a week earlier. Keep reading for more news.
All the Conditional Discharges
A conditional discharge allows a defendant who pleads guilty or is found guilty to be placed on probation without entry of judgment. If the defendant succeeds on probation, the court dismisses the conviction. If the defendant fails, the court enters judgment and sentences the defendant. Not long ago, G.S. 90-96 was pretty much the only conditional discharge game in town. Nowadays, there are lots of different conditional discharges. Today’s post collects them all in one place.
Expanded Forgiveness of a Criminal Conviction
Earlier this year, I had the opportunity to participate in a national roundtable, sponsored by the American Law Institute and National Conference of State Legislatures, on current and possible approaches to relieving the consequences of a criminal conviction. We considered three basic approaches: “forgetting” convictions by expunging them or limiting access to information about them; “forgiving” convictions through, among other things, certificates of relief, also known as certificates of rehabilitation; and “forgoing” convictions by diverting matters before conviction or decriminalizing them altogether. In its recently-completed legislative session, the North Carolina General Assembly expanded the forgiveness approach by making it easier to get a certificate of relief. Read on for more about this relatively new relief mechanism. If you’re interested in approaches elsewhere, the papers submitted by the various scholars and practitioners invited to the roundtable were recently published in the Federal Sentencing Reporter, available here. You can read my paper about North Carolina here.
Examining Applicants under Oath before Issuing Search Warrants
Suppose that Officer Oxford is investigating a murder. Oxford believes that Steve Smith is the killer, and that the murder weapon is in Smith’s house. Oxford approaches Magistrate Martin with a search warrant application. The heart of the application is Oxford’s sworn affidavit, which lays out the evidence establishing probable cause. G.S. 15A-245(a) provides that “[b]efore acting on the application, the issuing official may examine on oath the applicant.” Should Magistrate Martin swear Oxford and ask Oxford to explain the case? Or should Martin ask Oxford to sit quietly while Martin reviews the written application?
News Roundup
On Wednesday, Justice Anthony Kennedy announced that he would retire from the United States Supreme Court at the end of July. Kennedy’s retirement has been long-rumored and was made official with a short letter of resignation which he hand-delivered to President Donald Trump on the afternoon of the final day of the Court’s 2017-18 term. Kennedy has been widely characterized as the Court’s swing justice because of his liberal view on some issues and conservative view on others. The New York Times compiled a list of some of the Court’s major decisions where Kennedy’s vote was seen as decisive. Keep reading for more news.
When a Defendant Agrees to Two Trials Instead of One, Can He Claim that Double Jeopardy Bars the Second?
A Virginia grand jury indicted Michael Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon for his alleged involvement in stealing a safe containing guns and cash from another man’s home in March 2012. Currier’s prior convictions for burglary and larceny gave rise to the felon-in-possession charge. To avoid having evidence about those prior convictions introduced in connection with the new burglary and larceny charges, Currier (and the government) agreed to severance of the felon-in-possession charge so that it could be tried separately. The burglary and larceny charges were tried first, and Currier was acquitted. Currier then moved to dismiss the felon-in-possession charge, arguing that the second trial was barred by double jeopardy, or, alternatively, that the government should be precluded from introducing at that trial any evidence about the burglary and larceny for which he had just been acquitted. The trial court rejected Currier’s arguments, and he was tried and convicted of being a felon in possession of a firearm. Virginia’s appellate courts affirmed the conviction. The United States Supreme Court granted review and, last Friday, issued its opinion in the case.