Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink. Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest.
New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery
Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue.
The Right to Be Present at Sentencing
A North Carolina defendant has a common law right to be personally present when a criminal sentence is pronounced. That right is separate from the constitutional right to be present at trial, State v. Pope, 257 N.C. 326 (1962), and a waiver of the sentencing right should not be inferred from the defendant’s absence at trial. When a defendant is tried and found guilty in absentia (because he or she fled in the middle of the trial, or perhaps behaved in a disorderly fashion), we generally recommend that prayer for judgment be continued until the defendant can be brought before the court for sentencing. See Jessica Smith, N.C. Superior Court Judges’ Benchbook: Trial in the Defendant’s Absence. In one case the court of appeals held that a trial judge did not err by proceeding to sentence a defendant after he fled the courthouse, primarily because his lawyer remained and did not ask for a continuance. State v. Miller, 142 N.C.App. 435 (2011). But in light of earlier cases, the better practice is to wait. See, e.g., State v. Stockton, 13 N.C. App. 287 (1971) (citing several supreme court cases deeming sentences entered in a defendant’s absence to be defective).
Free Legal Research
Now that I have your attention . . . .
Ever wonder what happens to those case summaries that you receive from me by email? (If you’re not getting them you’re not on my listserv; sign up for free here). I sort them by subject and add them to my Criminal Case Compendium, an online, fully searchable resource. The Compendium, now a whopping 514 pages long, turned six years old this month. [Editor’s note: Actually, last month — I was a little slow in getting this post up!] In honor of the Compendium’s birthday, here’s quick primer on using this free legal research tool.
News Roundup
Several grand juries have recently considered whether to charge white police officers with killing black men. We’ve already discussed the case in Ferguson, Missouri on this blog. Wednesday, a Staten Island, New York grand jury declined to indict officer Daniel Pantaleo in the death of Eric Garner. The New York Times has the story here. Then a South Carolina grand jury indicted officer Richard Combs for murder in the fatal shooting of Bernard Bailey, as Time reports here. Is it a small sample? A historic moment? A coincidence? An epidemic? Some or all of the above, depending on your point of view.
Assembly Line Justice
Have you ever been convicted of or pleaded nolo contendere (no contest) to any violation of the law other than minor traffic tickets?
Millions of people, many of whom were convicted of petty crimes, must answer this question (a favorite of employers) in the affirmative. Indeed, the Wall Street Journal reported in a recent article on the processing of misdemeanor crimes that nearly 1 in 3 Americans has a criminal record. While those records are based on arrests, not convictions, a substantial percentage of people charged with misdemeanor offenses are convicted. North Carolina’s district courts, for example, disposed of more than 450,000 misdemeanor (non-traffic) criminal cases in the 2013-2014 fiscal year. A third of those cases resulted in convictions.
Handling Jury Trial Waivers
As of December 1, 2014, North Carolina criminal defendants may waive their right to a jury trial in superior court and instead opt for a bench trial. This is because of the state constitutional amendment that voters approved this fall. (I wrote about the amendment here.) But how exactly is waiver supposed to work?
Authenticating Social Media Evidence
One of my all-time favorite emails was received from a prosecutor who was handling a drug trafficking case. The email included a picture, plucked from what purported to be the defendant’s Facebook page, showing the defendant sitting on a pile of cash (later determined to be $1.6 million!), holding an AK-47. Jeff has written (here) about authenticating photographs from social media sites. But what of the other evidence that is mined from social media—how is that authenticated? A recent Second Circuit case adheres to the line that the relevant standard isn’t particularly high but finds that the prosecution didn’t meet it in this case.
Prior Possession of Drug Paraphernalia
It’s December 1. That means a number of new laws come into effect today. WRAL has a good rundown here, while the School’s annual summary of legislation of interest to court officials offers a more comprehensive review. For today’s post I’d like to focus on a sentencing question related to one of the changes that kicks in today: the reduced punishment for possession of marijuana paraphernalia.
News Roundup
Short week, short news roundup. National attention remains focused on Ferguson, Missouri, where attorneys for Michael Brown’s family have weighed in on the prosecutor’s handling of the grand jury proceedings concerning Brown’s shooting. The attorneys “criticized everything from the types of evidence . . . presented to the jury to the way it was presented and the timing of the grand jury’s decision,” according to this story on WRAL. There were several Ferguson-related protests locally, including one that blocked a freeway in Durham. Opinion is certainly divided about the prosecutor’s management of the process, as this Think Progress story notes.