North Carolina Criminal Law

How Can We Improve This Blog?

July 16, 2018 Jeff Welty

It’s hard to believe, but this blog is almost ten years old. Google Analytics reports that thousands of people use the blog every day, and as far as we can tell, the community seems to be a great mix of citizens, officers, lawyers, magistrates, and judges. We sincerely appreciate everyone who reads the blog, and … Read more

News Roundup

July 13, 2018 Christopher Tyner

On Tuesday, President Donald Trump nominated Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court. Kavanaugh has served on the United States Court of Appeals for the D.C. Circuit since 2006 and once was a clerk for Justice Kennedy. As the New York Times reports, before serving on the D.C. Circuit Kavanaugh worked for independent counsel Kenneth Starr and later worked for President George W. Bush. Going back further, Kavanaugh and Justice Gorsuch, also a former Kennedy clerk, went to high school together. Keep reading for more news.

Another New Conditional Discharge: Threats and False Reports of Mass Violence

November 1, 2018July 12, 2018 Jamie Markham

By the end of the year, we’ll have another type of conditional discharge to add to the list collected in my previous post. The new conditional discharge is for certain defendants convicted of communicating threats of mass violence on educational property or at a place of worship, or for making a false report concerning mass violence on educational property.

May a Defendant Appeal an Infraction to Superior Court?

July 11, 2018 Shea Denning

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?

July 10, 2018July 10, 2018 Jonathan Holbrook

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

July 9, 2018 Jeff Welty

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

July 6, 2018 Christopher Tyner

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

July 5, 2018 Jamie Markham

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

July 3, 2018July 3, 2018 John Rubin

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

July 2, 2018 Jeff Welty

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?