The post News Roundup appeared first on North Carolina Criminal Law.

The post Warrantless Review of Electronic Monitoring Data: Cases Outside North Carolina appeared first on North Carolina Criminal Law.

The post Case Summaries: N.C. Court of Appeals (August 6, 2025) appeared first on North Carolina Criminal Law.

The post News Roundup appeared first on North Carolina Criminal Law.

The post A New Way to Authenticate Video? State v. Windseth and the Business Records Exception appeared first on North Carolina Criminal Law.

The post Common Character Evidence Questions in Self-Defense Cases appeared first on North Carolina Criminal Law.

The post News Roundup appeared first on North Carolina Criminal Law.

How should you proceed?

In teaching felony defenders here at SOG, I’ve seen this ethical dilemma threaten to swallow up the allotted ethics hour on multiple occasions. It is a challenging issue that, like many other dilemmas, involves a clash between ethical obligations.

Rule of Professional Conduct (RPC) 1.6 (Confidentiality of Information) prevents lawyers from revealing information learned during the representation of the client without the client’s consent, subject to certain narrow exceptions. In addition, the lawyer in an adversarial system has a responsibility to be a “zealous” advocate. See N.C. Rules of Pro. Conduct, Preamble. Were you to correct the State’s error and volunteer the missing conviction, it would elevate your client’s exposure to punishment and seem to run afoul of your duties of confidentiality and zealousness, as well as the duty of loyalty, see RPC 1.7, comment 1 (loyalty is an “essential element” in the relationship with the client).

However, signing the worksheet as is arguably runs afoul of RPC 3.3, Candor to the Tribunal. Handing up a signed PRL worksheet with missing convictions could be interpreted as a misrepresentation to the court.

Practitioners disagree on what it means to sign the stipulation at the top of Page 2. The “Stipulation” reads as follows:

“The prosecutor and defense counsel, or the defendant, if not represented by counsel, stipulate to the information set out in Sections I and V of this form, and agree with the defendant’s prior record level or prior conviction level as set out in Section II based on the information herein.”

In interpreting this language, a defender might believe that by signing the stipulation they are simply indicating that they are not challenging the convictions submitted by the State and that they agree with the calculation of the PRL based on those convictions. However, a defender may be concerned that the stipulation amounts to an affirmation by defense counsel that the record presented on the form is complete and accurate. Reasonable minds can differ.

The AOC form could have been written to avoid any ambiguity. The form could simply require that the defense “stipulate to the existence of the convictions listed below and stipulate that the convictions belong to the defendant,” rather than making any potential stipulation as to the completeness of the list (note that it is not necessary to include language stipulating to the accuracy of the point calculation, as the calculation can readily be performed by the court, and it is proper for the court to confirm its accuracy). The ethical dilemma would disappear with this revision. Notably, though the form cites two statutes in the caption, G.S. 15A-1340.14 and 15A-1340.21, neither statute requires that the defense stipulate to the completeness, or exhaustiveness, of the list of prior convictions. G.S. 15A-1340.14(f) provides that the existence of a prior conviction can be proven by stipulation, original or copy of court record, various other types of records, or other reliable method. G.S. 15A-1340.21 contains essentially the same language in the context of misdemeanor sentencing. But nowhere in the statute did the General Assembly contemplate that the defense should routinely be required to sign off on the completeness of the criminal history nor the accuracy of the PRL determination. The prosecutor generally has access to the relevant databases and it is ultimately the State’s burden to “prove up” the PRL. See G.S. 15A-1340.14(f) (State has burden of proving existence of prior conviction by a preponderance of the evidence).

(Relatedly, my colleague, Jamie Markham, addressed what may be stipulated to in the context of PRL calculation in blogs here and here; as he explains, questions of law generally may not be stipulated to by the parties, but there are complexities. See State v. Prevette, 39 N.C. App. 470 (1979) (citing Young v. United States, 315 U.S. 257 (1942).)

It is crucial to note that the State Bar has explicitly stated that it is permissible for the defense to remain silent and refrain from correcting the prosecutor when the State presents an incomplete driving record during a DWI sentencing in District Court (PRL Worksheets are not generally used in misdemeanor cases). See 98 Formal Ethics Op. 5 (Apr. 16, 1998) (discussed by Jamie here); see also 2003 Formal Ethics Op. 5 (July 25, 2003) (reaffirming 98 FEO 5 and applying the reasoning to criminal cases in which a PRL worksheet is used). Furthermore, the analysis in 98 FEO 5 affirms that it would indeed be a violation of Rule 1.6 for the defense to point out the inaccuracy to the court.

Considering all of the above, some defenders would sign the worksheet on the basis that it only attests to the existence of the listed convictions. Some defenders, concerned about the ambiguity of the form, adopt a practice of never, or nearly never, signing the stipulation on the worksheet. One benefit of such practice is that it avoids the problem that arises from routinely signing the form in a series of cases and then conspicuously refusing to sign the form when the defender is aware that a conviction is missing in a particular case, presumably tipping off the prosecutor to the error. Alternatively, defenders may choose to make a regular practice of striking out a portion of the language on the Worksheet or adding language to clarify that the stipulation is only to the existence of the listed convictions, not to the completeness of the list.

I’ve heard concerns that when the defense refuses to sign the worksheet, it creates needless delay as the State is forced to prove up each conviction using printouts from NCIC, CJLEADS, eCourts, or some other repository. I don’t believe this concern is warranted, however, as the defense can make a limited stipulation to the existence of the listed convictions, or alternatively state on the record that the defense has had the opportunity to review the list of convictions and does not wish to be heard, without forcing the State to prove up the convictions one by one. The Court of Appeals in State v. Eubanks, 151. N.C. App. 499 (2002), held that language from defense counsel to the effect that the defense had “seen” the worksheet and did not have any objections should be construed as a stipulation to the existence of the convictions (citing to State v. Hanton, 140 N.C. App. 679, 689 (2000)). This approach would seemingly avoid the ethical dilemma without affecting the expedience of the proceedings.

The post The Prior Record Level Worksheet with Missing Convictions: A Persistent Ethical Dilemma appeared first on North Carolina Criminal Law.

Some experts attribute the changing trend to wider availability of the overdose-reversal drug naloxone as well as stepped-up treatment. Others contend the decline stems more from fewer people getting addicted in the first place.

Despite the encouraging news, drug overdoses remain the leading cause of death for individuals between the ages of 18 and 44.

Read on for more criminal law news.

Opioid litigation continues. Relatedly, in the wake of surging overdose deaths, thousands of state and local governments have sued various companies involved in the distribution of opioids nationwide. The lawsuits rely on a theory that the companies created a public nuisance. Many of the lawsuits have settled, but some have gone to trial, to mixed results. Recently, a federal district court judge in West Virginia ruled that public nuisance law should only apply in cases involving public property or resources, and that the theory is not applicable to the marketing and sale of opioids. On appeal, the 4^th U.S. Circuit Court of Appeals sent a certified question to the West Virginia Supreme Court: “Under West Virginia’s common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance and, if so, what are the elements of such a public nuisance claim?” Interestingly, in a 3-2 opinion, the highest court in West Virginia declined to answer the question, sending the matter back to the 4^th Circuit for resolution.

New death penalty methods? A bill is advancing in the North Carolina General Assembly to authorize a firing squad to carry out the death penalty. Lawmakers proposed the bill just prior to South Carolina’s execution of a man by firing squad in March (Joe covered a related South Carolina Supreme Court decision here). The North Carolina bill would also bring back the electric chair as a possible method of execution. 121 people are currently on death row in this state. North Carolina has not imposed the death penalty since 2006 due to litigation challenging the death penalty as cruel and unusual, as well challenges lodged under the Racial Justice Act. The method employed in the 2006 execution was lethal injection, the only legal method since 1998. The push for alternate methods may be a response to concerns about the availability of lethal injection drugs, as well as questions arising related to the humaneness of lethal injection after multiple failed executions in recent years.

Meanwhile, lawmakers in South Carolina are asking for an investigation into the firing squad execution of another man in April.

Depardieu convicted of sexual assault. The acclaimed French actor, Gerard Depardieu, was convicted this week of sexually assaulting two women on a movie set in 2021. He received an 18-month suspended sentence and was ordered to register as a sex offender.

In addition to the two women, three other women testified to previous incidents of sexual misconduct, and a total of at least 20 women have come forward against Depardieu. Having starred in more than 230 films, Depardieu has had a long and successful career despite mounting accusations. His defenders have included notable figures such as French President Emmanuel Macron. Some have noted that the “Me Too” movement has been slow to gain traction in France, and the victims and their attorneys celebrated the conviction as an important step forward in holding powerful artists accountable for their actions.

In a striking subplot, Depardieu’s defense attorney apparently engaged in such unprofessional conduct during the trial that 180 French lawyers signed an op-ed repudiating his strategy as infected with sexism and misogyny. The defense attorney interrupted the judge on multiple occasions and shouted that the victims’ lawyers were “abject,” “stupid,” and “hysterical.” He also denied that one of the women was a “real victim” and stated, “we don’t believe you,” upon concluding his cross-examination. This behavior led to the court imposing an additional 1,000 euros in damages to compensate for “secondary victimization.”

Menendez brothers resentenced. After serving 35 years in prison toward their sentences of life without the possibility of parole, Erik and Lyle Menendez received new sentences on Tuesday of 50 years to life, making them presently eligible for parole. The previous Los Angeles District Attorney, George Gascon, had filed a motion recommending resentencing, a motion that the current District Attorney, Nathan Hochman, later opposed. California is one of five states with a law allowing prosecutors to request resentencings.

The brothers had been convicted of killing their parents. They claimed self-defense at trial, asserting that they were victims of sexual abuse at the hands of their father. Prosecutors contended that the killing was motivated by money. The brothers received support in their bid for resentencing from a prison official and from their family members, who told the court that the brothers had worked hard to rehabilitate themselves.

Baby orangutans rescued. Two baby orangutans about to be sold to an unidentified buyer were seized at a gas station in Thailand as part of international efforts to stem the illicit trade in wildlife. The Associated Press has video of the animals smuggled (snuggled?) in plastic baskets here.

Have a great weekend and see you Monday.

The post News Roundup appeared first on North Carolina Criminal Law.

Last year, I created a chart to highlight the ingredients of authentication our appellate courts found to be adequate or inadequate as a foundation for surveillance video (also see the accompanying blog, Surveillance Video- When It Comes In and When It Doesn’t). I’ve received positive feedback on the chart and practitioners have asked for more evidence content in this format. For a second installment, I chose digital communications.

The chart focuses almost exclusively on North Carolina appellate law and emphasizes the key details, often circumstantial in nature, that the courts relied on in deciding whether the foundation was adequate or inadequate. Attentive readers may note that in virtually all the published cases, North Carolina courts held that the foundation was adequate. The exceptions where the courts deemed the foundation inadequate occurred where the proponent of the digital evidence made little to no attempt to lay a foundation. One might justifiably conclude that our courts are becoming more lax in admitting digital evidence as social media and cell phone communications become more and more ubiquitous.

However, questions remain as to the precise quantum of evidence necessary to successfully lay the foundation for a digital communication. I introduce a mnemonic device in the chart, “SANDVAT,” as a shorthand for the various categories of circumstantial evidence commonly relied upon by the proponent of a given piece of digital evidence. This refers to Substance, Account, Name, Device, Visuals, Address, and Timing (explained further in the chart). In published cases where the foundation was deemed adequate, the proponent generally relied on multiple categories of circumstantial evidence which together made a persuasive case for authenticity. Had the moving party attempted a foundation, but laid one that was shakier, would the digital evidence have properly been admitted?

There is no precise formula nor number of ingredients for a proper foundation. The inquiry is fact-determinative and hinges on whether the proponent has made a sufficient showing such that a reasonable finder of fact could conclude that the matter is what the proponent claims it to be. See Rule 901(a); State v. Wiggins, 334 N.C. 18 (1993). Our Courts have explained that this “burden to authenticate… is not high—only a prima facie showing is required.” See State v. Ford, 245 N.C. App. 510 (2016). Hopefully, this chart with concrete examples will be of use in determining how high the burden is in practice.

The chart can be found here.

The post Authentication of Digital Communications Chart appeared first on North Carolina Criminal Law.