Fünf Mythen des Geständnisses

In whatever language or country, a criminal defense lawyer’s advice will be the same: Shut Up, Halt die Klappe, Boucle-la, Тише, ¡Cállate!

It’s Christmas, and work is slow before the four or five murder trials I will have in 2021, so I’m reading up on the German criminal process and criminal law. (In law school I took comparative law and we learned a little bit about various European systems.  It turns out that the differences are not so great.)

Reading about other countries system at least helps you remember when you are in the sort of awful system that is the American judicial system that it doesn’t have to be this way.

But – throughout the world – defense lawyers – Strafverteidiger in German – have the same basic advice for clients: Do not speak to the police with out a lawyer present.

1. A Confession will Drop the Charges

While it may be appropriate to give a confession – Das Geständnis – a suspect (person, human being, the accused) often wants to give a confession at the beginning of the process in order to – they hope – convince the police to not issue an arrest warrant.

This never happens.  Police never drop charges simply because they now have an explanation for why the crime was committed.  In fact, police are far more likely to pursue charges because you’ve now made the crime easy to solve and another statistic that they can record in the “Win” column.

Police would only drop a charge in a case so minor and insignificant that it isn’t worth worrying about in the first place.

2. Early Confessions are Believable

Clients sometimes assume they should confess early in order to get credit for the confession they’ve given on the theory that an early confession will be more believable. While it’s true that a late or delayed confession can be harmful, an early confession can harm as well.  A confession given before the lawyer has sufficient information about all of the facts can be catastrophic in a case, closing off the opportunity for an even better result.

Early confessions are quite simply not necessarily more believable.  A person may only partially confess (which makes the confession unreliable) or the person may confess inadequately – not accept full moral culpability.  Or the person may be actually confused or mistaken about what happened because they didn’t see anything, and render an inadvertently false confession.

Finally, in their rush to confess, a client may be incomplete in his or her confession, resulting in confusion by the police that will later be blamed on the client.

3. Early Confessions Get Me More Credit

An early confession, some clients believe, will get them more credit.  Compared to what?

Once a person has confessed, in almost all cases – and notwithstanding Miranda – they will not be able to to take the confession back. At the very least, the police have heard the confession and will pursue the case vigorously to secure a guilty result.

As a consequence, if a person has confessed to a crime that the police could not have otherwise proved or investigated, the person may have gotten themselves more credit as compared to having not confessed in the prosecution but a lot more punishment as to the crime itself which may not have been properly investigated absent the confession.

Furthermore, police always want a confession now, “now” being the moment before they get the confession.  In other words, police would be nearly as happy – and happy enough – to get your confession after you talk to your lawyer as before your lawyer, understanding that they want to get the confession as quickly as possible.

Because the confession is almost always an unknown piece of information that police are desperate to get, a confession is almost always valuable.  At the very least, a confession – in the form of a guilty plea and allocution – avoids the necessity for a trial and will be rewarded in almost all cases.  But more generally, a confession done early enough in any case will – depending on the applicable law – create statutory avenues for reductions in sentence.

Early confessions are rarely important, and should rarely be done, and only done with an attorney’s advice.

4. I Need to Confess Now!

Whether and when to confess is always a fact-specific issue, and should be discussed with your lawyer.  But there are almost always – as noted above – multiple opportunities to confess.  It may – for technical reasons – be necessary to confess before a specific date or event, but even if that date passes, some benefit may be had from a late confession.

But early confessions can’t be retracted.  There is no imperative to confess now or now or even now.  Rather, there are various times where a confession may be valuable, and by talking to your attorney you can figure out whether and when you should confess.

5. The Best Confession

There is no “best confession.” A good confession, however, is truthful and consistent with all the other believable evidence, and comes at a point in the case where maximum benefit can be gained without losing other advantages.  Therefore, a good confession is a confession that results in the least possible punishment (given the other realistic outcomes).

Confessions cannot relieve the defendant of all responsibility, except in extremely minor crimes.  Confessions can only minimize the impact.  The fact that the person is required to confess is itself an imposition on that person that cannot be undone.

Life is never the same after the police coming knocking.  Don’t confess without a lawyer.

What Does My North Carolina Uniform Citation Mean?

North Carolina Uniform Citation

If you’ve been stopped while driving or cited for a crime, chances are that you have received a North Carolina Uniform Citation, a single page document that, front and back, explains the charge or charges that have been issued against you.  If you’ve received a citation, you haven’t been arrested and detained, but you have been charged with an offense that may require you to personally appear in court.

By clicking on the image to the left you can see a full version of a sample Uniform Citation that provides explanations in red regarding the different notations made by the officer who charged you with an infraction or misdemeanor.  By clicking here you can see an explanation of the other fields that have been filled out on your citation.

Once the citation is issued to you, you must respond by or at the court date that is indicated on the form.  In most cases, you will personally need to appear, unless you hire a lawyer and unless that lawyer informs you that your presence is not required.

Some infractions may be resolved through North Carolina’s online ticket system, and without the representation of an attorney.  While we handle more serious cases – murders, drug trafficking, sex offenses, assaults, and white collar crimes – we do sometimes handle lower level offenses on a case-by-case basis.

Keep in mind that even misdemeanors and traffic infractions can have serious implications.  For instance, failure to comply with a traffic offense may result in an order for arrest, the suspension of driving privileges, and potentially additional costs and fines.

Misdemeanors may themselves involve much more serious consequences.  For instance, sexual battery, a class A1 misdemeanor in North Carolina, carries with it a requirement that the person register with the North Carolina Sex Offender Registry.

It is important that any citation is handled appropriately to prevent these collateral consequences from affecting driving privileges, your livelihood and even. your freedom.

Citations for Infractions or Misdemeanors

North Carolina has three levels of criminal offenses, two of which can be charged by in this manner.  Infractions – certain speeding offenses and traffic violations – are the lowest type of offense, do not involve jail time, and are not technically crimes in North Carolina.  However, failure to comply with infractions can create additional criminal consequences – for instance, ignoring a speeding ticket will trigger a driver license suspension which then will result in misdemeanor crimes if the person continued to drive on a suspended license.

Misdemeanors can also be charged by citation, including serious misdemeanors such as Driving While Impaired.   While DWIs almost always result in arrest, an officer may not arrest a person being cited.  The failure to arrest doesn’t lessen the seriousness of the charged crime.  The officer may merely have decided that arrest is not necessary, and may simply give the citation and inform the person of the next court date.

Felonies are not charged by citation.  Felonies require arrest (or surrender) and will result in an arrest warrant being issued by a magistrate or judge which then is usually served on the defendant by an officer or deputy sheriff.  Felonies (and misdemeanors) may result in pre-trial detention until the conditions of release can be satisfied.

A person should save the citation and, if hiring a lawyer, provide a copy of the citation to the lawyer so the lawyer can understand the charges, the time of the arrest, the location of the arrest, and any other details noted by the officer on the citation at the time of the arrest.

For more information on your citation, you can visit the North Carolina Citation Lookup page.

Body Cameras For Courts Too

MicrophoneThe talk about body cameras for police officers is good. It’s good for officer safety, good to document the interaction between officers and the policed. We often know too little about these interactions. Police have a version, the policed have a version, and bystanders have their versions.

Confusion can lead to false convictions and unchecked abuse. Indeed, police themselves are at risk of being injured in interactions with the policed; having body cameras helps everyone see exactly how police treat the people they interact with, and how people treat police.

There really should be no debate about the use of body cameras.

North Carolina District Courts are also an area where recordation should be required, but is not. In some civil contexts and in civil Domestic Violence contexts, District Court proceedings are recorded, either by audio recording equipment or a live stenographer.

And that’s how it should be. When people testify, when judges rule, and when lawyers argue, it’s important that an accurate record be kept.

Accurate records keep everyone honest, not just in the literal sense of truth-telling but in the figurative sense that the law is followed and that appeal to a higher legal authority is available.

But criminal settings are almost never recorded unless one party requests recordation and, at least for private defense lawyers, a stenographer is provided at the defendant’s cost.

This is a ridiculous situation. Ridiculous because courts are not, and should not be star chambers. They should be open, public, and documented venues in which legal issues are resolved.

Even DMV hearings are recorded, and a copy is available to the defense.

I have even had judges deny my request to record the proceeding (and share that recording with the DA) with my own recording device.

The idea that a person should be denied an accurate recording of his or her court proceeding unless that person pays hundreds of dollars for it is just so fundamentally odd.

So while North Carolina considers whether to require police to wear body cameras, maybe it could decide whether to require recording of court proceedings. I am not opposed to parties being required to pay a small fee – $5 for instance – to obtain a copy of the recording.

North Carolina Misdemeanors: What is a Misdemeanor in North Carolina?

Raleigh Criminal LawyerThe state of North Carolina categorizes offenses into three main categories: Felonies, Misdemeanors, and Infractions/Ordinance Violations. Infractions and ordinance violations are the least serious while felonies are the most serious. A misdemeanor classification is for less serious crimes, but a conviction of this type is still a criminal conviction and can impact your life negatively in terms of job prospects, housing, financial aid and educational opportunities, and most important, your freedom.

The most common misdemeanors seen on North Carolina background checks are larceny, drug possession, and DWI. Assaults and domestic violence cases are very often misdemeanors as well.

Misdemeanors are first handled in district court, which is the lower level of the two state courts in North Carolina. District court is a court in which a judge makes a decision as to guilt or innocence and there are no juries involved.

North Carolina is interesting in that the evidence that the state has against you, called discovery, does not have to be turned over to you in district court. However, if an attorney requests it, it is usually handed over as a matter of courtesy. Your discovery provides valuable insight as to how strong or weak the state’s case is and what the defense strategy should be.

Typical misdemeanor cases in Wake County take between 1-5 months. Some may take longer depending on the complexity of the case. Sometimes, the more patient you are and the longer the case takes, the better the outcome.

If you are convicted in a district court trial by a judge, you have the right to appeal to superior court, where you are entitled to a jury trial. Appeals from district court to superior court must be filed within 10 days of date of conviction in district court.

Punishment for misdemeanors can range from probation to active jail time. A good Raleigh criminal defense attorney will understand how misdemeanors are handled in the North Carolina court system and will be able to effectively manage the process for you and try to get you the best result possible.

What is a hung jury?

Raleigh Trial Lawyer“Hung jury” is a slang term for a jury that is hopelessly deadlocked. Usually the judge will inquire of the jurors, through the foreperson, whether the jury is in fact deadlocked, or whether the jury would benefit from additional time deliberating on the case.

While not all states require a unanimous – all jurors – to agree one way or the other, North Carolina does require all 12 jurors to unanimously vote whether to convict the Defendant or acquit him or her of the charges.

Usually the judge will ask the jury to return to the jury room to deliberate further on the case, especially if the jury has not been in deliberations long.

During the deliberations, the jury may ask questions, by writing those questions on a slip of paper that is then taken to the judge to review. The jury need not all agree on what question to ask before asking the question. A single juror may have a question that may be submitted to the judge for an answer, but the judge will always direct his or her answer to the entire jury.

While the judge usually has ultimate authority – except when his actions or responses would be improper under the Rules of Evidence or constitutional or statutory law – about responding to the jury’s questions, the judge will almost always consult with the prosecutor and the defense lawyer about the appropriate response.

Sometimes, especially if the answer is clear or not open for contention, the parties agree on how to respond to the jury’s questions. Other times, the parties may disagree on how to respond and may submit possible responses. The judge will select one of the responses, or formulate a response. A party may object to the response being given to the jury, and that objection may become an issue on appeal.

In some cases, the judge will simply re-read parts of his jury instructions and ask the jury to consider those instructions, with nothing more added.

If the jury says that it is deadlocked, a party can ask, and the judge can given an Allen Instruction, which simply informs the jury to redouble its efforts (without giving up individual commitments to conscience) because it is unlikely that any future jury would be in any better position to decide the case. While not all states permit an Allen charge, North Carolina does. The problem with an Allen charge is that it can appear to interfere with the sacrosanct role of the jury, which is to decide the case without pressure or influence.

If the judge is ultimately convinced that the jury is deadlocked, he will inform the prosecutor and the defense lawyer that he plans to declare a mistrial. Either party may object. The judge usually overrules those objections.

The jury is brought out. The judge inquires once again whether the jury is deadlocked. If the foreperson says “yes,” the judge then asks the foreperson to leave the jury box, thereby excusing him from the jury. Now that there are too few members of the jury in the jury box, the judge declares a mistrial.

A mistrial following a hung jury does not implicate the Double Jeopardy clause. Therefore, under both our state and federal constitutions, the prosecutor can retry the Defendant. The prosecutor can also decline to re-prosecute and can dismiss the charges. Or the case can be resolved by a plea bargain.

Legal Doctrine and Legal Realties – The Daily Life of Criminal Law

Most people are woefully ill-informed about the way that criminal law is actually practiced. That includes law professors, including most of the ones who actually teach criminal law. I recall taking a Criminal Procedure class – “Bail to Jail” – when I was a student at the University of North Carolina, Chapel Hill.

UNC is not a bad school. In fact, it’s actually a pretty good school. Go heels! And the professor wasn’t a stupid man, he was just woefully poorly informed about how criminal procedure actually works in the day-to-day practice law. (I never asked, but his excuse would probably be something along the lines that UNC is a law school, not a lawyer school.) At one point in his career about two decades ago he was an assistant united states attorney in an appellate practice, but beyond that had had virtually no contact with the subject in which he was teaching.

We talked about Stack v. Boyle and uniform bond fixing. We talked about discovery and Brady. The professor had virtually no clue about how criminal law works in North Carolina.

The picture of the criminal process painted by the professor in the class was one of a system that is fair and even-handed operated by people of good will and pure hearts. It’s the same picture that people who come in to hire me have in their heads. There’s the idea that someone would not be charged unless they had done something wrong. There’s the idea that if they only can explain why they did what they did, or where they were, that they will be believed and everything will be ok.

Here’s the reality: the criminal justice system is actually a brutally impersonal system where every day hundreds of people go through the Wake County courts at a rate that allows for very little individualized reflection of their particular cases. Judges, prosecutors, police, and defense attorneys are too frequently burdened by an avalanche of cases. Consider that right now Indigent Defense Services has issued contracts to private attorneys to handle between 120 and 130 misdemeanors over the course of the year for a total payment of $17,000. That equals less than $150 paid to the attorney for each case.

How much actual attention to the details of a particular misdemeanor case can be expected by an attorney paid less than $150 to handle the whole matter, no matter how long that takes.

Indeed, down in the trenches, little regard is paid to actual constitutional law. That’s because no case actually has the neat, clean, and sanitized facts that end up being the Facts (in capitals) in a Supreme Court opinion.

Real cases involve clients who are humans. Real cases involve police who sometimes take shortcuts. Real cases involve odors that may or may not have been present. Real cases involve unreliable dog sniffs that produce a roach, that then produce 30 kilos of cocaine.

Real cases involve Horizontal Gaze Nystagmus that is, according to the reliable, scientific literature, nonsense as an indicator of impairment, but has become so much a part of DWI industry that police, judges, and even defense lawyers simply assume it’s there. Because a 28-year-old who swerves a bit driving at 2:30 am and smells a little like alcohol can be described as a “suspect” whose “vehicle” went over the “approximately 2 feet over the fog line on three occasions” and who displayed “red, glass eyes” was “mush-mouthed” and a “strong odor of alcohol” and admitted to having “two beers” – that person must have HGN.

Back to my original point: Doctrine emerging out of carefully curated factual scenarios quickly turns into catch phrases – “spontaneous utterance,” “for officer safety,” “training and experience” – that become part of a larger script that cloaks what is a brutal system with a veil of legality.

The logic of the vast majority of cases has got nothing to do with doctrine, but on 1) money 2) time 3) possibility of facing some horrific punishment vs. taking what-you-would-have-thought-is-a-terrible-outcome-in-a-previous-life-but-now-looks-ok

Shock and Awe: North Carolina Criminal Law Up Close

When I meet people who are accused of or under investigation for serious felonies – sex offenses, drug trafficking, pornography crimes, frauds or theft crimes, and homicides – they typically have a very naive view of the Raleigh criminal justice system.

This naive view is especially true of people who have never been in trouble before with the law, or have had, at most, speeding tickets.

In most cases, people form their impressions of the legal system from television dramas, such as NYPD Blue or The Shield or The Wire. Because most day-to-day criminal law is governed by state law, the laws of particular states govern how criminal procedure works in that state.

For instance, if you watched NYPD Blue, you would have the impression that:

  1. Assistant District Attorneys (Riding DAs) make charging decisions, particularly in felonies.
  2. A Grand Jury meets within seven (7) days of arrest.
  3. That, if someone simply tells the truth, they will be better off.
  4. That there is a specific Speedy Trial statute that brings the matter to speedy resolution.
  5. That only the guilty are convicted.

First, in North Carolina, for the vast majority of felonies, the police make the charging decision. In certain cases – high profile cases, including, in some cases, murders, sex-offense related cases, large financial crimes, and drug conspiracies – the prosecutor in North Carolina will make charging decisions. And, of course, the prosecutor has ultimate control over the ultimate charge, although the initial charging decision can have a huge impact on the case.

The initial charging decision will impact bond and pre-trial release conditions. The initial charging decision also creates a criminal record, including an order for arrest that will ultimately result in a public record including the arrest (which can only ultimately be removed by expungement, if available.)

Second, in North Carolina, the grand jury, except in special cases, does not meet to discuss a case until months after the initial arrest. In some cases, the person’s case can remain in District Court (where most felonies, and nearly all misdemeanors begin) for four or more months before a Grand Jury is convened to indict the case.

Next, in other states – NY for instance – the grand jury is a more open process where the defendant has a right to testify. While it may not make sense for a defendant to testify before a grand jury, in certain cases – including cases where the state’s case is very weak and where the defendant is innocent – it may make sense to have the defendant testify in order to shorten the whole process.

Fourth, in many states, the Defendant has speedy trial rights. In North Carolina, the Speedy Trial statute was repealed in the 1970s. That creates a curious situation, in which, while the Defendant may have rights under the United States Constitution to a speedy trial, the Defendant’s rights to a speedy trial do not kick in for years.

Finally, in North Carolina, the prosecutor controls the calendar, which creates another problem for Defendants in that the prosecutor ultimately has more influence over when and where a case comes to trial.

This unique set of circumstances means that, in practice, North Carolina’s criminal procedure is quite different from other states, affording the Defendant fewer rights, particularly in the early stages of the case where the Defendant has no rights to discovery under State law.

It can be months before a defendant even gets to see what evidence the prosecutor has, putting the defendant at a severe disadvantage.

The one bright spot is that North Carolina features open-file discovery which permits the Defendant to receive virtually the entirety of the state’s records in the case.

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 Department – and associated agencies such as Child Protective Services receives information about the criminal investigation into the matter.

There are three legal frameworks in which a person is entitle to discovery in North Carolina – statutory, state constitution, and the federal constitution.

North Carolina’s statutory discovery provisions for felonies is located at N.C.G.S. Chapter 15A, Article 48 basically creates what’s called an “open file discovery” system whereby the Defense is entitled to “the complete files of all law enforcement and prosecutorial agencies involved in the investigation.”

In addition to these broad protections under the NC General Statutes, defendants in North Carolina are entitled to discovery under the North Carolina Constitution and the United States Constitution.

The basic constitutional law governing discovery under the federal constitution was developed in the 1960s principally in a case called Brady v. Maryland which requires the government to turn over everything that’s exculpatory. Subsequent cases have held that exculpatory evidence may be evidence that is favorable to the defendant at sentencing. Still other cases have held that the prosecution must make a good faith review of agency files for exculpatory material – the prosecution may not plead ignorance by failing to inspect police files. And other cases have held that even confidential material in Child Protective Services or school records may be subject to disclosure, sometimes following an in camera review by the trial judge.

This case law applies to the states and well as the federal government.

Today, the Supreme Court reaffirmed its commitment to Brady and the rule that the defense is entitled to exculpatory information.

Juan Smith was convicted of killing five people in 1995 when a group of men busted into a home in search of money and drugs and, ultimately, opened fire on the occupants.

Smith was the only person tried for the murders based solely on eyewitness testimony of a survivor. Elsewhere I’ve written about how eyewitness testimony is unreliable. People often don’t really remember events as accurately as they think they do.

In this case, prosecutors did not have any DNA, fingerprints, weapons, or other physical evidence.

It later turned out that prosecutors failed to reveal to the Defense reports of interviews with the witness. In one of the interviews, the witness told prosecutors that he could not describe the killers, except to say they were black men. Several days later, he had told police that he had not seen any of the peoples’ faces. Yet months later in a trial the witness was supposedly sure Juan Smith was the killer.

There was no question, Chief Justice John G. Roberts Jr. wrote for the majority, that the reports should have been turned over under Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to provide favorable evidence to the defense. The question for the justices was only whether the failure mattered — that is, in the words of a 2009 decision, whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”

This ruling reaffirms the importance that the Court has assigned to the prosecution’s obligation to turn over all discoverable (meaning, in this case, exculpatory) information to the defense.

Magistrates and Criminal Law in North Carolina

A magistrate is not a judge, but is a judicial officer of the District Court. Each of the 100 counties in North Carolina has at least one magistrate. A magistrate has civil functions – including to marry, and to hear small claims suits – and has criminal functions, which I’ll discuss below.

The general statutes for magistrates are located in Article 16, Chapter 7A of the N.C.G.S. A magistrate is selected by the Resident Superior Court Judge – in Wake County, The Hon. Donald Stephens – to a term of first 2 years, and then 4 years from a list of nominees provided by the Clerk of Superior Court. A magistrate need not have any formal legal training before being selected as a magistrate, although before being renominated for a second term, the magistrate must have completed the basic education required of magistrates in North Carolina.

As of 2009, Raleigh (Wake County) had a minimum of 18.5 magistrates (magistrates may be part-time).

Under N.C.G.S. 7A-273 magistrates have the authority in criminal actions to:

  • In infraction cases in which the maximum penalty that can be imposed is not more than fifty dollars ($50.00), exclusive of costs, or in Class 3 misdemeanors, other than the types of infractions and misdemeanors specified in subdivision (2) of this section, to accept guilty pleas or admissions of responsibility and enter judgment;
  • In misdemeanor or infraction cases involving alcohol offenses under Chapter 18B of the General Statutes, traffic offenses, hunting, fishing, State park and recreation area rule offenses under Chapter 113 of the General Statutes, boating offenses under Chapter 75A of the General Statutes, and littering offenses under G.S. 14?399(c) and G.S. 14?399(c1), to accept written appearances, waivers of trial or hearing and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Judges pursuant to G.S. 7A?148, and in such cases, to enter judgment and collect the fines or penalties and costs;
  • In misdemeanor cases involving the violation of a county ordinance authorized by law regulating the use of dune or beach buggies or other power?driven vehicles specified by the governing body of the county on the foreshore, beach strand, or the barrier dune system, to accept written appearances, waivers of trial or hearing, and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Court Judges pursuant to G.S. 7A?148, and in such cases, to enter judgment and collect the fines or penalties and costs;
  • To issue arrest warrants valid throughout the State;
  • To issue search warrants valid throughout the county;
  • To grant bail before trial for any noncapital offense;
  • Notwithstanding the provisions of subdivision (1) of this section, to hear and enter judgment as the chief district judge shall direct in all worthless check cases brought under G.S. 14?107, when the amount of the check is two thousand dollars ($2,000) or less. Provided, however, that under this section magistrates may not impose a prison sentence longer than 30 days;
  • To conduct an initial appearance as provided in G.S. 15A?511; and
  • To accept written appearances, waivers of trial and pleas of guilty in violations of G.S. 14?107 when the amount of the check is two thousand dollars ($2,000) or less, restitution, including service charges and processing fees allowed by G.S. 14?107, is made, and the warrant does not charge a fourth or subsequent violation of this statute, and in these cases to enter judgments as the chief district judge directs.

Arguably the most important act a magistrate takes in a criminal case is to set bail. In Wake County, bail is generally set using a set of guidelines supplied by the Chief Resident Superior Court Judge and Chief District Court Judge. Magistrates generally operate within those guidelines, unless there is good reason to deviate or unless a judge has already set the bond or a District Attorney has already consented to a particular bond being set.

Liability for Crimes

Sometimes people are surprised that they may be implicated in a criminal act, even though they weren’t necessarily involved in all aspects of the crime. Liability for crimes can extend to everyone involved in various aspects of the crime, and can extend through time to involve aiding and abetting, accessory after the fact, and conspiracy.

Let’s talk about a few different types of criminal liability.

The most basic criminal liability involves a person acting as a principal in a crime. For instance, if a single person pulls out a gun and with premeditation shoots an individual, that person is the principal in the crime of First Degree murder.

Acting in Concert

What if two people intend to kill an individual, but only one of the two people has the gun and pulls the trigger? The second person, so long as he shares the same mental state and so long as he assists in an aspect of the crime, is similarly guilty as a principal in first degree murder. This is called “acting in concert.” It is a basic concept of criminal law that two or more persons may act as principals in the first or second degree or as accessories. Both actors are principals since each does an act that constitutes the crime and each acts with the necessary criminal intent (to kill). Even though neither individually did all the acts that constitute the crime, under the theory of joint participation or acting in concert the law treats them as partners in crime who have joined together for the common purpose of committing the crime of murder and each is held responsible for the acts of the other in the commission of the object offense.


A person may be criminally liable even if he did not participate in the acts of the crime, if the person enters into a conspiracy which involves a mutual understanding to commit a crime. In North Carolina, under N.C.G.S. Sec. 14-2.4, punishment for a conspirator is generally one class less than the punishment class of the crime. This reduction in punishment does not extend to drug trafficking; conspiracy to traffic in drugs is punished at the same level as the principal crime. (For instance, Level 1 marijuana trafficking would result in the same punishment as Level 1 conspiracy to traffic in marijuana.)

Accessory Before the Fact

North Carolina has abolished the distinction between Accessory-before-the-Fact and principal, except in the unique case that “if a person who heretofore would have been guilty and punishable as an accessory before the fact is convicted of a capital felony, and the jury finds that his conviction was based solely on the uncorroborated testimony of one or more principals, coconspirators, or accessories to the crime, he shall be guilty of a Class B2 felony.”

Accessory After the Fact

A person who assists a principal in the crime with either escape, evasion of police, or destruction of evidence may be guilty of a number of crimes, including obstruction of justice. At common law, it was generally the rule that the principal in the crime needed to be convicted (the person who shot the victim, for instance, needed to be convicted of murder) before the State could try the Accessory After the Fact for his crime. The theory was that if there was no underlying criminal conviction, there could be no accessory.

N.C.G.S. Sec. 14-7 effectively abolishes this requirement, and allows the State to try the defendant in an Accessory After the Fact case whether or not the principal has ever been brought to justice.

An accessory after the fact is punished to class levels below the class of the principal crime.

Solicitation to Commit

Solicitation is the act of either offering money or other inducement or encouragement with the specific intent that another person commit the crime. While the person who commits the crime is guilty of being a principal with respect to that crime, the person who induces or pays the other person to commit the crime is guilty of solicitation, which in North Carolina is punishable by a two-class-level reduction in the class of the original offense.

Felony Murder Rule

When someone dies in the course of a serious or violent felony, all accomplices in the crime can be held liable for First Degree Murder. This is a rule that dates back to the 1600s. The idea is that if everyone, for instance, agrees to rob a store, and one person pulls out a gun and shoots the shopkeeper, everyone will be held liable for First Degree Murder.



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