Archive for January 2012

Confrontation Clause: Right to Confront

Testimonial statements may not be admitted at trial if the witness is unavailable and the defendant has not had an adequate prior opportunity to cross-examine the witness. Such statements would violate the defendant’s Confrontation Clause rights if admitted at trial. What constitutes an adequate prior opportunity to cross examine? In State v. Ross, the Defendant…

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Is Running from the Police Unlawful?

What if the officer has no suspicion of criminal activity, but the officer observes a person and tells him to stop. The person takes off running. Has the person committed a crime of Resist, Delay, and Obstruct? In State v. White, officers received a report of loud music in a high crime area: The State’s…

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Warrantless Dog Sniffs in Drug Cases

Police conducted a warrantless dog sniff test by a dog trained in drug detection at Joelis Jardines’ home five years ago. The police had received an unverified tip that Jardines’ home was being used to grow marijuana. Under well established constitutional law, the unverified tip did not create probable cause. In December 2006, police went…

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Victory for Criminal Defendants

Discovery is the process by which each side in a legal dispute is entitled to receive information from the other side. Usually in a criminal matter, discovery goes one way – from the prosecution to the defense. That’s because in a criminal matter, the prosecution – through the police – such as the Raleigh Police…

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Changes to North Carolina DWI Checkpoint Law

Police are permitted under U.S. Constitutional law to establish checkpoints provided they have a specific programmatic purpose, and are not generally used for general crime control. In other words, the Supreme Court has refused to permit police agencies to establish checkpoints for general policing, since this smacks of a totalitarian approach where everyone is suspect.…

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Continuous Alcohol Monitoring (CAM) and Raleigh DWI cases

Recent changes to North Carolina’s DWI laws expand the use of Continuous Alcohol Monitoring (CAM). For instance, if a person is sentenced to an Aggravated Level 1 DWI, the person would be required to have at least a four month period of Continuous Alcohol Monitoring (120 days) but it can be imposed for the entire…

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Electronic House Arrest vs. Electronic Monitoring

This post deals with the post-conviction application of EHA or Electronic Monitoring in a Raleigh criminal case. If a person is sentenced within an Intermediate (I) sanction block, that person must face at least 1 of several intermediate sanctions, including: Split Sentence – up to a 1/4 of the sentence in custody, with the balance…

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North Carolina Structured Sentencing is No Longer Structured

Until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that: There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing. There was disparity in how people were treated from place to place, and defendant to…

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Scope of Entitlement for Indigent Services

Any person, including non-citizens, is entitled to representation and, if that person cannot afford an attorney, both the United States Constitution and North Carolina law guarantee that person the right to an attorney. The attorney – whether he or she is a public defender who works in the Wake County Public Defender’s Office or a…

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