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DNA Test Results: Probability vs. Fallacy

The State of North Carolina goes to trial against Donnie Defendant, who is alleged to be the infamous “Tarheel State Killer” and charged with committing a series of brutal assaults and murders several decades ago. The state’s case depends heavily on matching DNA evidence from the crime scene to a sample of DNA taken off a cigarette butt discarded by Donnie. At trial, Special Agent Wanda Witness testifies as an expert in forensic DNA analysis for the state. After explaining the science behind PCR, STR, loci, and markers, Wanda opines that Donnie’s DNA is indeed a match to the DNA recovered from the crime scene.

Sounds like good news for the state, but what exactly does a “match” mean? And how may the significance or statistical probability of that “match” be expressed to the jury? It’s an important question, because what might sound like two similar ways of expressing the same probability can have dramatically different meanings – and possibly even be considered error on appeal.

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Officers’ Applications for Investigative Orders and the Unauthorized Practice of Law

May a law enforcement officer submit an application for an investigative order to a judicial official, or does that constitute the unauthorized practice of law? The answer depends on the type of order sought, as a letter of caution issued last week by the State Bar’s Authorized Practice Committee reveals.

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News Roundup

Late last week a Pennsylvania jury convicted Bill Cosby of three counts of sexually assaulting Andrea Constand in 2004.  A prior trial involving the same offenses ended in a deadlocked jury mistrial.  Cosby faces up to 30 years in prison, but news reports suggest that he is unlikely to receive the maximum sentence.  Cosby has faced years of accusations that he had a regular practice of drugging and sexually assaulting women.  Keep reading for more news.

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Failure to Include Known Facts in a Search Warrant Application Can Undermine Probable Cause

When a search warrant application fails to establish probable cause, the problem isn’t normally that the applicant didn’t have probable cause. It’s that the applicant failed to include important facts that he or she knew. An example of the phenomenon is State v. Lewis, decided this week by the court of appeals.

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State v. Eldred:  Court of Appeals Evaluates Sufficiency of Circumstantial Evidence of DWI

Consider whether the following facts are sufficient to support a conviction for DWI:

The scene. Law enforcement officers in Avery County respond to a reported accident on the highway leading to Grandfather Mountain around 8:30 p.m. They find a Jeep Cherokee on the side of the highway, with a damaged side panel. Tire impressions indicate that the vehicle traveled about 100 feet after leaving the roadway. A large rock embankment along the roadway is scuffed. No one is in the car, which is registered to Paul Eldred.

The defendant. A law enforcement officer finds Eldred walking along the side of the highway two or three miles north of the accident. Eldred has a mark on his forehead, is twitching, and is unsteady on his feet. The officer asks Eldred why he is walking on the highway. Eldred responds:  “I don’t know, I’m too smoked up on meth.” The officer calls for medical help, and Eldred is taken to the hospital.

The interview. Another officer questions Eldred at the hospital around 10 p.m. Eldred explains that he was driving his car when it ran out of gas. He then says “‘he was hurt bad and was involved in a wreck a couple of hours ago.’” Eldred tells the officer that he had not been drinking alcohol. The officer asks whether Eldred has taken any medications, and Eldred says he is “on meth.” During the interview, Eldred is twitching, appears dazed and has difficulty answering questions. He does not know the date, the day of the week, or the time.

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A Lose-Lose Situation for “Felonious” Defendants Who Act in Self-Defense

I previously wrote here about the statutory felony disqualification for self-defense in North Carolina, adopted in 2011 by the General Assembly alongside expanded castle protections and clearer stand-your-ground rights for law-abiding citizens. The felony disqualification, in G.S. 14-51.4, states that a person loses the right of self-defense if he or she “[w]as attempting to commit, committing, or escaping after the commission of a felony.” A literal interpretation of the provision places “felonious” defendants in a lose-lose situation: if they defend themselves, they can be prosecuted for their use of force even if the force is otherwise permissible; if they don’t defend themselves, they could suffer injury or even death. In my earlier blog post, I suggested that the felony disqualification may include a “nexus” requirement—that is, that the disqualification applies only if the defendant’s felony in some way creates or contributes to the assault on the defendant and the resulting need for the defendant’s use of force. The Court of Appeals in the recent case of State v. Crump took a literal approach, appearing to make the felony disqualification an absolute bar to self-defense if the defendant contemporaneously engages in a felony.

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News Roundup

Two incidents of mass murder made national headlines this week, one occurred in Nashville, Tennessee, and the other in Toronto, Canada.  Early Sunday morning, Travis Reinking killed four people and wounded two others with an AR-15 style rifle at a Waffle House in Nashville.  After being disarmed by a customer, Reinking fled the scene, sparking a 34-hour manhunt that ended when he was discovered in a wooded area a few miles from the Waffle House.  On Monday, Alek Minassian killed ten people and wounded many others by intentionally driving a moving van into pedestrians on a sidewalk in Toronto.  Keep reading for more news.

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2018 Sentencing Commission Recidivism Report Available

The North Carolina Sentencing and Policy Advisory Commission recently released its biennial Correctional Program Evaluation—known better as the Recidivism Report. The report, prepared in conjunction with the Division of Adult Correction and Juvenile Justice, is available here. It covers defendants placed on probation or released from prison in Fiscal Year 2015.

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When May the District Attorney be Taken Off the Case?

North Carolina is divided into 44 prosecutorial districts. Each is headed by an elected district attorney or, the case of a mid-term vacancy, a district attorney appointed by the governor. District attorneys are constitutionally and statutorily charged with prosecuting criminal actions in their districts. Each district attorney employs a number of assistant district attorneys who assist in carrying out this work. A district attorney may even, as Jonathan discussed in this earlier post, employ a private attorney to assist with prosecution.

When a district attorney identifies a conflict of interest associated with his or her prosecution of a case, the district attorney may seek assistance with the prosecution from another prosecutorial district, the Attorney General’s Special Prosecution Division, the Administrative Office of the Courts, or the Conference of District Attorneys.

Sometimes, however, the district attorney decides to proceed with prosecuting a case notwithstanding a defendant’s insistence that a conflict of interest exists. When that occurs, the defendant may ask the court to remove the prosecutor from the case. May the court do so? If so, what standard governs the court’s determination of whether the prosecutor is disqualified from the case?

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