North Carolina Criminal Law Blog

Each year the School of Government publishes new and revised pattern jury instructions for civil, criminal, and motor vehicle negligence cases. Those instructions are created and compiled by the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions. The 2024 updates are available for free download here. Among this year’s changes are new instructions for crimes recently defined by the state legislature, including patient brokering, street takeovers, new death by distribution offenses, the new misdemeanor crime of domestic violence, and elevated versions of the offense of breaking or entering a motor vehicle. Several existing criminal instructions also have been amended, including the instruction for substituting alternate jurors after deliberations begin (N.C.P.I. – Crim. 100.40). That instruction now includes a note well advising of the ruling in State v. Chambers, 292 N.C. App. 459 (2024), and the stay entered by the North Carolina Supreme Court.

This is Part V of a multi-part series on confidential informants (“CI’s”), motions to reveal the identity of CI’s, and discovery.

As discussed in earlier posts in this series (here and here), the defense is more likely to win a motion to reveal the identity of CI when the defendant is able to tie the potential CI testimony to a particular theory of defense and explain how it furthers that defense. In the landmark case of Roviaro v. U.S., the U.S. Supreme Court listed a variety of ways in which the CI’s testimony might be helpful for the defense and ruled that the CI’s identity must be turned over. However, North Carolina appellate courts have repeatedly stated that the defense cannot merely speculate about how the CI’s testimony might be relevant; the defense must clear an initial hurdle of showing how the testimony might resolve a material conflict at trial in order to prevail on a motion to reveal the identity of the CI. See State v. Dark, 204 N.C. App. 591, 593 (2010); State v. Watson, 303 N.C. 533 (1981). While defenders may invoke their federal due process rights in challenging whether this should be a requirement, they should be aware of what North Carolina appellate courts are demanding.

An interesting strategic implication of Dark and Watson is that in CI cases, the defense may benefit from committing to a particular theory of defense and “showing its cards” to the state in a pretrial hearing. Defenders are often reluctant to call their client to the stand, even in a pretrial hearing, unless the defendant’s testimony appears to be necessary or exceptionally persuasive. Defenders may be concerned about the risk of damaging cross-examination and the possibility that the testimony of an unsavvy client might hurt the case, even where the client is telling the truth (discussions of this dilemma in the media can be found here and here). In cases where there is a viable motion to reveal the identity of the CI, though, the risk will sometimes be worth the possible reward. The prospect of winning a dismissal, a concession in plea negotiations, or suppression of key evidence may counterbalance a tendency by the defense to avoid putting the client on the stand in a pretrial hearing.

Police in Durango, Colorado, shared a video on Facebook this week of their pursuit and capture of an escaped kangaroo. The N&O has the video. According to the Durango Police Department, it is not illegal in Durango, Colorado, to own a kangaroo as a pet. Read on for more criminal law news.

I recently gave a criminal law case update to a group of judges.  I had quite a few cases that I planned to cover in relatively short order. I started with Smith v. Arizona, 602 U.S. 779 (2024), in which the United States Supreme Court held that statements from an absent laboratory analyst that a testifying analyst conveyed to support his expert opinion about the chemical composition of the substances seized from the defendant were hearsay. For that reason, their admission at the defendant’s trial on drug charges raised Confrontation Clause concerns. To my chagrin, twenty minutes later, I was still talking about Smith, attempting to helpfully respond to a barrage of questions from trial court judges about the practical import of the decision for various kinds of testimony frequently proffered by the State during a criminal trial. Those questions included the following:

• The substitute analysts I see don’t typically rely on another analyst’s report. Instead, they examine the underlying testing data and reach an opinion based on that. Is that testimony admissible?
• May a supervising analyst who reviewed the testing done by and conclusions of another analyst pursuant to laboratory protocols testify to the conclusions the supervising analyst reached about the identity of the substance?
• Suppose a new analyst retests a substance. Will he or she be able to establish a sufficient chain of custody for the substance tested given that the substance was initially received and examined by an analyst who is not available to testify?

This post will review what we knew about substitute analyst testimony before Smith was decided, will recap the Court’s analysis in Smith (analyzed in detail here), and will provide some thoughts about Smith’s import that may inform a court’s analysis of the questions posed above.

This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on October 18, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

A new law governing capacity to proceed in delinquency cases is set to take effect beginning with offenses committed on or after January 1, 2025. Part V. of Session Law 2023-114 creates a juvenile capacity standard and establishes procedures to be used when capacity to proceed is challenged. You can find a description of much of the new law in my blog from September. This post explains the juvenile remediation process that will be available under the new law for certain cases in which a juvenile is found to lack capacity to proceed.

North Carolina doesn’t have a land border with Mexico or Canada, so most people don’t think of us as a border state. But we are. We have a maritime border and several international airports that courts have deemed the functional equivalent of a border. Fourth Amendment protections are greatly reduced at the border, and United States Customs and Border Protection (CBP), the federal agency responsible for securing the border, reports that in 2023 it conducted border searches of electronic devices belonging to 41,467 travelers. This post considers when law enforcement officers may search an international traveler’s electronic devices.

In the aftermath of the widespread destruction wrought by Hurricane Helene, federal and state officials have begun providing relief assistance to affected residents in western North Carolina. These efforts have been complicated by widespread misinformation regarding the Federal Emergency Management Agency (FEMA) and others. This past weekend, someone called 911 to report that an armed man near a FEMA relief center was allegedly threatening to harm relief workers and who supposedly spoke of “truckloads of militia members” in the area. According to this report, FEMA took the threat seriously, suspending door to door visits with residents and temporarily scaling back relief efforts in response. The man in question was found with an assault rifle and a pistol and was charged with going armed to the terror of the public. The Rutherford County Sheriff’s Department ultimately determined that the man was acting alone and that the report of armed militias in the area was untrue. The Governor’s office, FEMA, and other agencies have denounced this incident and other instances of misleading and inaccurate information about disaster relief efforts. My colleague, Kristi Nickodem, recently published a blog post over at Coates’ Canons addressing what local governments can do to combat misinformation in this context, which you can read here. Read on for more criminal law news.

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 15, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

In response to the devastation caused by Hurricane Helene, the Chief Justice of the North Carolina Supreme Court entered an emergency order applicable to certain impacted counties on September 29, 2024, as amended September 30 (the “Original Order”). The Original Order extended “the time and periods of limitation for filing and of acts due to be done” in the following 28 counties: Alexander, Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Catawba, Cherokee, Clay, Cleveland, Gaston, Graham, Haywood, Henderson, Jackson, Lincoln, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, Wilkes, and Yancey.