Confidential Informants, Motions to Reveal Identity, and Discovery: Part II, What Statutes Apply?

In Part I of a series of posts on confidential informants, I revisited the landmark case of U.S. v. Roviaro, which began when a Chicago police officer hid in the trunk of an informant’s car to listen in on a heroin deal. The U.S. Supreme Court held that the officer in the trunk was no substitute for the confidential informant (“CI”) in the driver’s seat and required disclosure of the CI’s identity to the defense. I also introduced the basic dichotomy set out in Roviaro: generally, where the CI is more of a tipster, the CI’s identity need not be revealed, but where the CI is an active participant, the defense is entitled to it. The constitutional underpinnings of this distinction, based on due process and confrontation principles, continue to guide courts today, although the analysis has evolved.

This second post will address the North Carolina statutes at play. These statutes complicate and refine the basic constitutional question of whether fundamental fairness requires the State to turn over the CI’s identity.

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Disposition Continuance to Provide for Time in Secure Custody Not Allowed

Are there limits on the court’s ability to continue the dispositional hearing in a delinquency case? The Court of Appeals recently identified one limit In re D.R.F., Jr., ____ N.C.App. _____ (May 7. 2024).  The court held that a continuance for the sole purpose of placing the juvenile in secure custody as punishment before disposition is not a valid basis for that continuance and constitutes an abuse of discretion.

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News Roundup

The trial of former U.S. President Donald Trump for alleged falsification of business records is nearing its conclusion. The prosecution’s key witness, Michael Cohen, was on the stand for four days, describing what he and Trump discussed back in 2016 and 2017 when Cohen served as Trump’s lawyer. He outlined a plan to conceal a sexual affair from the public by making hush-money payments to adult film actress Stormy Daniels. Trump’s intent in making these payments, and whether a falsification occurred in furtherance of another crime, are the central questions of the trial. The defense engaged in a lengthy cross-examination to undermine Cohen’s credibility.

The prosecution then rested, and the defense presented the testimony of one witness, also an attorney. The witness, Robert Costello, had previously given legal counsel to Cohen after Cohen’s house was raided by FBI agents. After the defense rested, the parties debated the appropriate jury instructions. Closing arguments are scheduled for Tuesday, and the jury could begin deliberations Wednesday.

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When May the State Use Evidence of a Defendant’s Silence Before Trial?

A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue:  When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.)

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Changes to Basic Law Enforcement Training

With few exceptions, new law enforcement officers in North Carolina are required to complete a course called Basic Law Enforcement Training, or BLET. The curriculum for the course is established by the North Carolina Justice Academy, but the training is typically delivered at dozens of community colleges and through recruit academies run by some of the larger law enforcement agencies in the state. The curriculum has been significantly revised over the past few years, and I thought readers might be interested in a summary of the major changes.

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News Roundup

It sounds like there’s a criminal trial of some kind going on in New York, but the big trial this week here in North Carolina was the retrial of self-proclaimed billionaire insurance magnate Greg Lindberg. Lindberg was once the state’s leading campaign donor. According to this AP story, a federal jury in the Western District of North Carolina has convicted him of “attempting to bribe the state’s insurance commissioner to secure preferential regulatory treatment for his insurance business.” Lindberg was previously convicted of essentially the same crime in 2020, successfully appealed, and was released from prison in 2022. He now appears likely to be headed back into custody. He is also awaiting trial on another set of federal charges. Keep reading for more news.

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Fourth Circuit Strongly Suggests Including Temporal Limitations on Search Warrants for Social Media Account Information

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Earlier this year, the Fourth Circuit decided United States v. Zelaya-Veliz, 94 F.4th 321 (4th Cir. 2024). Phil summarized it here when it came out, but we thought it merited its own post because of its extended discussion of how the Fourth Amendment applies to search warrants for social media account information. The court’s discussion of the need for temporal limitations in such warrants is especially noteworthy, as is the court’s analysis of the scope of the information seized pursuant to the warrants approved by the court. We’ll start with a recap of the case, and then end with some thoughts for law enforcement and prosecutors, and for defenders.

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Sufficient to Allege: Short-circuiting Short-forms in State v. Singleton and State v. Crowder

Statutes prescribing simplified charging language were intended to alleviate the burdensome pleading requirements of the common law.  See Wayne R. LaFave, et al., Criminal Procedure § 19.1(c).  Indeed, where a short-form pleading is statutorily authorized, it is not necessary to allege all the elements of the offense.  See State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983).  But how closely must a short form track the language prescribed by statute?  The Court of Appeals recently decided a couple of cases that address the issue.  This post considers those cases.

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