North Carolina Criminal Law Blog

The 2025 legislative session was relatively quiet for expunction law but still potentially important for some people. I have incorporated the changes in the law into the latest version of […]

Derek was twenty years old when he suffered a stroke. He lost and then subsequently regained his ability to speak and to perform simple tasks; however, he cannot manage important […]

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.

Incapacity to proceed under North Carolina General Statutes (G.S.) Chapter 15A and incompetency proceedings under G.S. Chapter 35A involve, at least in part, a court inquiry into someone’s cognitive abilities. Incapacity to proceed is narrowly focused on a person’s cognition within a criminal legal proceeding. Incompetency is a bigger picture analysis, more broadly focused on the individual’s life and needs, with a bit of forward-looking involved. In that way, incompetency is concerned with both a person’s cognitive abilities and their functioning.

These proceedings are separate and distinct from one another. Yet, if a client has history or present involvement in both, the client’s attorney in one proceeding should know about and understand the other. That attorney may want, for example, to access information or introduce evidence from the other proceeding. The attorney will want to consider issues such as information sharing and confidentiality, and the admissibility or other uses of records from one proceeding in the other.

These issues may be the subject of future posts. First, however, we need to understand incapacity to proceed under G.S. Chapter 15A and incompetency under G.S. Chapter 35A. This post provides a primer on incapacity and incompetency proceedings and compares the standards for each.

Children in North Carolina can be tried as respondents in delinquency proceedings for their actions beginning at age 6. The inclusion of young children in delinquency jurisdiction, some of whom may be young enough to remain staunch believers in Santa and to eagerly await a visit from the tooth fairy or the Easter bunny, raises significant legal questions in light of their developmental maturity. Those questions include:

• whether the infancy defense should play a role in delinquency proceedings?
• whether the capacity standard used in delinquency proceedings should explicitly account for developmental immaturity?
• at what point do children develop the skills necessary to function as a competent respondent?

A new Juvenile Law Bulletin, Including Young Children in Delinquency Jurisdiction: Issues of Infancy and Capacity, is now available and discusses these issues in-depth. This blog provides some highlights of the bulletin.

The capacity-commitment process in criminal cases is complicated. It involves many moving parts in two different systems: criminal justice and mental health. How is the process bearing up in the COVID-19 era? Based on my conversations with the experts—lawyers, judges, and mental health professionals involved in these cases—the answer is surprisingly well. This post considers the various steps in the process and focuses on a concern common to many court proceedings these days: when does the defendant need to be present, in person or remotely?