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.

Out of State Defendants in North Carolina Criminal Cases

What happens if you’re an out-of-state resident visiting or passing through North Carolina and you get into criminal trouble?

Maybe you’re here to see a concert, and you’re accused of possession of drug paraphernalia, or felony possession with intent to sell a deliver (PWISD) marijuana. Maybe you’re visiting, have a few too many drinks, and you’re stopped for a DWI. The list of possible crimes goes on, but the question becomes: how can you handle your criminal case while returning to your home state?

First, of course, you’ll need to get out of custody. If you’re reading this article, you’ve already done it. But if you’re a family member who has had a late night call and you want to know how to help your son, daughter, husband, wife, or friend, here are some tips.

Speak with a Raleigh criminal lawyer about possible representation. While a criminal lawyer is ethically prohibited from getting involved in the bonding process, a lawyer will be able to make appearances in court to try to reduce the bond (and therefore the cost) of getting your loved one or friend out of jail.

In serious matters, it may be important for the lawyer to meet immediately with the person accused so that an interview can be conducted, or evidence can be preserved. Maybe there are witnesses who need to be identified and located before they too leave the area.

If the person has quickly been released from custody (or was never physically arrested in the first place), a lawyer can help by appearing on the person’s behalf at their First Appearance.

A First Appearance is a mandatory court appearance where the defendant is informed of his rights – right to an attorney, the maximum possible punishment for the charges, and the date of the next court appearance. If a person bonds out, but does not appear at his First Appearance, the person will be Called & Failed, and an order may eventually be issued for his arrest. (Misdemeanors generally do not have First Appearances soon after arrest, but rather people are informed of their rights at the first full court setting of the matter.)

In the case of felonies, the North Carolina General Statutes provide that an attorney may appear on the client’s behalf so that a client need not remain in North Carolina, provided he has executed a Waiver of Appearance and a Waiver of Counsel.

A defendant is generally obligated to appear at all Felony dates, but an attorney may be able to get a client’s presence excused if it’s apparent that the matter will not be resolved on that particular date. During the early stages of a criminal case, there may be a number of court dates where nothing would ordinarily take place.

During this time, the attorney can collect discovery for an out of state client, review that discovery via teleconference or by having the client travel back to North Carolina for an in-person meeting.

In the case of misdemeanors, it may be possible to resolve waiveable offenses (low level misdemeanors and certain traffic offenses) without the defendant being present. A Raleigh criminal lawyer will require that the client complete a notarized Waiver of Appearance, and a full conversation will be had with the Defendant regarding possible outcomes.

DWIs are non-waiveable offenses, and if they are to be tried – meaning if the Defendant wishes to have a trial – the that person will usually have to return to North Carolina unless prior consent can be arranged with the District Attorney and the Judge to excuse the Defendant from returning.

A Defendant must return to North Carolina for a jury trial. Even if a court were to allow a defendant to be excused in a misdemeanor jury trial, it would be extremely prejudicial to the defendant not to return.

In felony cases, presence is mandatory at all dispositions, save dismissals. (Certainly, the state can try a case if the Defendant flees the jurisdiction once the trial has begun.)

However, even though an out-of-state defendant is generally advised to return for the disposition of the case, by hiring a Raleigh criminal lawyer to handle even simple misdemeanors, an out-of-state client can save significant amounts of money in having a lawyer handle the details of the case and, where possible, excusing the client from returning unless something is scheduled to be resolved in the matter.

Top 10 Myths about Criminal Law

When people come into our offices, they have a lot of misconceptions about how the law works. For many people, this is the first time they’ve ever been in trouble with the law – or had family who has come in contact with police. So they’re scared, and worried, and believe that what they’ve seen in movies and on the television accurately depicts how criminal law operates in the real world.

Let’s talk about some of the common myths about criminal law.

  1. My case is going to trial.
    Many people assume that their case is going to trial – meaning a trial with 12 members of a jury sitting in a box and deciding someone’s fate. First, while I am prepared to take a case to trial if need be, the sheer statistics in the United States indicate that approximately 95 percent of all cases do not go to trial. They are resolved by what lawyers like to call a non-jury disposition.

    The vast majority are resolved by a plea bargain. Whether your case is going to end by a plea bargain (or felony diversion, drug diversion, or deferral agreement), it’s important that the attorney you hire prepares as if it’s going to trial.

  2. Police did not read me my rights. My case will be dismissed.

    While it’s possible that a case may be dismissed because police failed to read rights, the vast majority of cases never are affected by a failure to read rights. That’s because the rights requirement – the requirement to inform someone of their rights under Arizona v. Miranda – is very limited in its application. It applies only to in custody interrogations. If you were in custody, but police did not interrogate you, then there was no requirement to read you your Miranda rights. If you were out-of-custody, and police asked you questions, then there was no requirement to read you your Miranda rights.

    And even if a judge finds that your rights under Miranda were violated, the case would only be dismissed if that confession or those statements were the only or primary evidence that the police had of your guilt. If there was other evidence, police are free to use that evidence so long as it was not obtained illegally.

  3. My case will be resolved quickly

    Many people assume a criminal case will be resolved in, at most, a couple of months. And while it’s true that plenty of misdemeanors and felonies can be resolved fairly quickly with outstanding results, if your case is headed to trial, then in many cases it will take at least a year, and perhaps two or more years for the case to be called for trial.

    That’s because in North Carolina there is no statutory speedy trial requirement, which means that only the federal constitution’s Sixth Amendment right to a speedy trial applies in North Carolina.

  4. Police are there to help

    When the police come to investigate a criminal matter, they are not there to help you. They are there, potentially, to arrest you, and they are in the process of trying to gather as much information as they can to convict you.

    Falling into the trap of believing that police are there to help you is a sure way to begin digging a hole that leads to a criminal conviction.

  5. The police officer promised that if I cooperated, I would not face charges. Or that he would talk to the prosecutor

    You may have had an interview with a police officer prior to being arrested or prior to being charged. And during that interview, the police officer may have urged you to talk, telling you that if you cooperated it would “go easier in you.”

    In general, it never makes sense to talk to police without a lawyer present. That’s because police do not necessarily need to tell you the truth, or honor promises to “talk to the judge” or “put a good word in with the DA.” Anything you say during that interview will be used against you. There are no secrets kept.

    Always have a lawyer when talking to police.

  6. I can have a conviction expunged.

    North Carolina has very restrictive expungement laws. If you’re convicted after the age of 18 of a felony or most misdemeanors, the law prohibits expungements. Expungements are available for people under the age of 18, or for cases in which the matter was “voluntarily dismissed” (VD) or where the case is dismissed at the close of State’s evidence, or where the judge or jury finds the defendant not guilty.

    But under North Carolina law, a person is only entitled to one expungement in his or her life.

  7. I can handle this case myself, without hiring a lawyer.

    Sometimes people come into our offices – maybe at the start of an investigation – for an initial free consultation. After discussing some aspects of their case, they believe that it would be more cost effective (e.g., cheaper) to “go it alone” and not hire a lawyer.

    The problem is that police and prosecutors are trained professionals. Even the smartest individual (defendant, suspect) has not had the legal training or experience required to defend themselves in a criminal matter.

    Often these matters can be handled more inexpensively at the beginning of the matter. At a certain point, however, a person who has not hired a lawyer will be doing more harm – much more harm – to their case and their potential for a successful outcome.

  8. I’m going to jail. There is no hope.

    If you have never been in trouble with the law before – except for speeding tickets, etc. – and you are accused of a non-violent felony or misdemeanor, then the chances of going to jail or prison are very small. North Carolina has a structured sentencing system that calculates someone’s sentencing range by:

    1. The person’s prior criminal history, and
    2. The class of the crime.

    In certain cases, especially in cases where only a small amount of money has been alleged to have been stolen or where the person has been accused of felony possession (but not sale) of drugs, the person might be eligible for a diversion program. A diversion program is a program where the person completes community service (and possible drug treatment) over the course of the year, and earns a dismissal of the charges.

  9. There’s a Magic Key that will Solve My Case

    Many clients, having watched a lot of television or movies about the law, come to our offices with the impression that there is a magic key that will suddenly make the whole criminal charge go away.

    In fact, there is very rarely a magic key. Movies about crimes have magic keys, because that makes the plot exciting. But in the real world, a criminal case – and a criminal defense – involves a lot of hard work, and a lot of time, and is almost never resolved in a dramatic fashion.

  10. My friend got X result, I should also get that same result.

    But sometimes folks come into my office expecting the same or similar results to friends or family members.

    Every case is different. You should hire a smart, aggressive Raleigh criminal lawyer to help defend you in your matter.



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