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.


Arrest is a Public Record

I represent a lot of people who have never been in trouble before in their lives. The arrest – whether it’s for a misdemeanor such as shoplifting or drunk driving (DUI/DWI) – or it’s for a Felony such as shoplifting or tampering with an anti-theft security device – is frightening.

But after the initial anxiety of the arrest – after the person has bonded out of custody and hired me to provide aggressive representation – my clients are often concerned about the publicity associated with an arrest.

Of course, the vast majority of criminal arrests don’t make front page news. But every arrest is a public record. And felony arrests – where a person’s photograph is taken by the CCBI (City-County Bureau of Identification) agents in the jail – almost always result in a photograph on WRAL’s photo gallery or in The Slammer’s pages.

It’s unfortunate. Ten years ago, an arrest of this sort would go unnoticed. But in the internet age, where everyone has access to the web, and websites are crawled by Google, if you’ve got a unique name, an arrest may leave a lasting record.

What can you do?

The bad news is that there’s usually no legal action that you can take to force a website, such as WRAL, to remove this record from their archives. You might be able to convince them to remove the photograph by being polite and respectful. But they are not required to do so by law because an arrest is a public record.

One option is to create an online profile that puts all the good things about you above all the bad things about you. There are various articles on the web about how to create a positive online profile. If you’re very concerned about the bad image that might formed by viewing an old arrest, you might try to create a positive online profile that will obscure the bad profiles on various websites about your arrest.

More might be done, and you can feel free to call me to discuss possible ways to help avoid a very public, and very embarrassing, image as a result of a Raleigh criminal arrest.

Standards of Review

One of the major differences between the American (and British) systems of justice – the adversarial system – and the system used in countries that have adopted the Roman civil law system is the way appeals operate.

In North Carolina, for instance, after the trier of fact – usually a jury – renders a general verdict in a case, that case is (usually) final with respect to the facts, so long as the there were facts in the record that could’ve supported the verdict and the verdict was not irrational or unreasoanble.

In addition, upon review, a court of appeals in North Carolina or the federal system views the facts in the light most favorable to the prosecution.

Courts of appeals will conduct a de novo review of questions of law. For instance, whether evidence was admissible in the first place is a question of law, and therefore the reviewing court will conduct a new review of that decision to decide whether or not the evidence should’ve been admitted.

But, because courts of appeals in the United States and North Carolina do not generally review the facts of the case, decisions which may be erroneous, because juries have made mistakes or misjudged evidence, will stand unless the jury’s decision was clearly irrational.

Contrast this situation with the Amanda Knox case in Italy. Knox was accused of killing a British student Meredith Kercher. The lower level Italian court found Knox guilty based on faulty DNA analysis performed by the prosecution’s witness. But the appeals court in Italy hears the evidence again, and when they did they found that Knox and her former boyfriend were not guilty of the crime.

Procedural Law vs. Substantive Law

Broadly speaking there are two kinds of laws – procedural laws and substantive laws.

Procedural laws are the laws that govern the procedure by which a legal process operates. For instance, a procedural law might be a law that says that within 48 hours of detention, a person must be apprised of his or her rights.

Substantive laws are the laws that actually contain the criminal violations for which someone might be charged. For instance, a substantive law might be a law that says it’s illegal to possess marijuana.

The procedural laws, therefore, govern the way someone might be prosecuted for an alleged violation of a substantive law.

A criminal defense lawyer might use both procedural defenses and substantive defense to protect his or her client. For instance, a defense lawyer might argue that the search of a vehicle was done in violation of a person’s rights under the constitution – essentially this is a procedural violation, for which the remedy might be the suppression of the evidence.

A criminal defense lawyer might also use a substantive defense. For instance, the defense lawyer might argue that the marijuana was not his client’s. Or that the substance found was not marijuana at all.

Since 2001, there has been heightened interest in a person’s procedural rights under the Fourth Amendment. The Fourth Amendment to the Constitution is a protection against unlawful searches and seizures.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Given the current Supreme Court’s tendency to erode these protections, a great deal of academic commentary has dealt with various ways in which searches might be “reasonable” or “unreasonable” and the basis upon which warrants can be issued.

Today’s Diane Rehm Show on NPR discussed this issue in light of a looming Supreme Court decision in U.S. v. Jones, a case involving a warrantless use of a GPS device to track a person’s movements in his car ’round the clock.

The problem with much of the discussion during the program was that, as with most discussions about procedural protections, it ignores the climate in which those protections are either guaranteed or ignored.

In this country, we’ve gone very far in the direction of making victimless conduct illegal: Jones sold cocaine. People should not sell, buy or use cocaine. People shouldn’t drink. They shouldn’t skydive. They shouldn’t shoot guns. The shouldn’t bungie jump. They shouldn’t engage in any risky behavior whatsoever. Risky behavior harms themselves. It harms people around them.

But by making activities legal – activities that are understandably destructive – the government creates a climate in which the police and the government use the danger of these activities to erode procedural protections. After all, who would object to a warrantless search in pursuit of cocaine trafficking? Only a criminal, or someone who sympathizes with criminals.

Common Law vs. Statutory Law

When people think of laws today, they think of laws passed by a legislature – in the federal example, Congress, or in North Carolina, the General Assembly – and signed into law by the chief executive (the president or the governor).

These are only one kind of law: statutory law. There is another kind of statutory law called administrative law. These are laws (or, more accurately, rules) that can be created by an administrative agency, such as the Department of Corrections, the Department of Health and Human Services, or even the Department of Revenue, but only under the authority granted to them by the legislative body.

But there’s a very different kind of law that sometimes is important in North Carolina criminal law. And that’s the common law, which is law that emerges over time as a result of individual decisions in multitudes of cases. In the past – before the late 1800s – most law was common law. That is, most law was created in England and later in the various states of the United States out of case law.

Common law isn’t written down in any particular place. In order to understand what the law is, someone has to read cases to find out how judges have ruled in various specific decision in ruling that certain behavior is criminal.

The great advantage of common law is that it emerges over time, and is adapted quite slowly to accommodate changes in society and in peoples’ social mores. Common law also tends to be very predictable in that it’s not likely to change much from year to year. Contrast that with statutory law – for instance, DWI laws in the past 10 years in North Carolina have changed dramatically – and one sees the advantage of common law.

Until the late 19th century, most laws were common laws. But after the Civil War and with the rise of the Progressive Movement in the late 19th century, a more “scientific” approach to laws evolved. This approach was never very scientific, but it did create an impetus to have legislatures, as opposed to judges, create a body of law – whether it was civil or criminal – that was more “rational”.

In western states – states created in the late 19th century or early 20th century – there is virtually no common law. Instead, the criminal and civil codes are entirely statutory. (I am not licensed to practice in Arizona, so if you have a question about an Arizona case, you need to find a lawyer there.)

However, in eastern states, including North Carolina, remnants of this old common law tradition survive. For example, murder is not defined by statute, but rather by common law. North Carolina also has a crime called Common Law Robbery which, as the name indicates, is a common law crime, not defined in statute (although punishment is defined by statute).

Another crime is the crime of “Going Armed to the Terror of the People,” a misdemeanor that has its origins in English law. To see how such common law is derived and interpreted, I’m posting here the key case defining this crime, State v. Huntly, 25 NC 418 (1843).

As you can see by reading this case, common law really was applied as a judge’s interpretation of a precedent.

Appeal from Settle, J., Spring Term, 1843, of Anson.
The defendant was tried upon the following indictment:

The jurors for the State upon their oath present, that Robert S. Huntly, late of the county aforesaid, laborer, on the first day of September, in the present year, with force and arms, at and in the county aforesaid, did arm himself with pistols, guns, knives, and other dangerous and unusual weapons, and being so armed, did go forth and exhibit himself openly, both in the daytime and in the night, to the good citizens of Anson aforesaid, and in the said highway and before the citizens aforesaid, did openly and publicly declare a purpose and intent, one James H. Ratcliff and other good citizens of the State, then and there being in the peace of God and of the State, to beat, wound, kill, and murder, which said purpose and intent, the said Robert S. Huntley, so openly armed and exposed and declaring, then (p.419)and there had and entertained, by which said arming, exposure, exhibition, and declarations of the said Robert S. Huntley, divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State.

On the trial it was insisted on the part of the defendant, that allowing all the facts charged in the indictment to be true, they constituted no offence for which the defendant could be punished as for a misdemeanor. His Honor instructed the jury, that if the facts charged in the indictment were proven to their satisfaction, the defendant had been guilty of a violation of the law, and that they ought to render their verdict accordingly. In the investigation before the jury it appeared, among other things, that the defendant was seen by several witnesses, and on divers occasions, riding upon the public highway, and upon the premises of James H. Ratcliff (the person named in the indictment), armed with a double-barrelled gun, and on some of those occasions was heard to declare, “that if James H. Ratcliff did not surrender his negroes, he would kill him”; at others, “if James H. Ratcliff did not give him his rights, he would kill him”; on some, that “he had waylaid the house of James H. Ratcliff in the night about daybreak, and if he had shown himself he would have killed him; that he showed himself once, but for too short a time to enable him to do so, and that he mistook another man for him, and was very near shooting him.” On one occasion, that “he would kill James H. Ratcliff if he did not surrender his negroes, and that as for William Ratcliff, he was good for him anyhow on sight; that there were four or five men whom he meant to kill.” All these declarations were objected to by the defendant’s counsel, but were received by the Court, as accompanying and qualifying and explaining the defendant’s riding about the country armed with a double-barrelled gun. The jury having found the defendant guilty, his counsel moved for a new trial upon the grounds, first, that the declarations of the defendant before mentioned, were improperly (p.420)received; secondly, because the Judge should have told the jury, that supposing all the facts charged in the indictment to be true, still the defendant was entitled to their verdict. The motion was overruled, and judgment having been pronounced, the defendant appealed.
Attorney-General for the State.
Winston for the defendant.

Gaston, J. On the trial it was insisted by the defendant’s counsel, and the Judge was required so to instruct the jury, that if the facts charged in the indictment were all true, they nevertheless constituted in law no offence of which they could find the defendant guilty. His Honor refused this prayer, and instructed the jury that if the facts charged were proved to their satisfaction, it was their duty to find him guilty. The same ground of defence has been taken here by way of a motion in arrest of judgment; but we are of opinion that in whatever form presented, it is not tenable.

The argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2 Edward III, ch. 3, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, ch. 1, sec. 2, that the statutes of England or Great Britain shall cease to be of force and effect here. We have been accustomed to believe, that the statute referred to did not create this offence, but provided only special penalties and modes of proceeding for its more effectual suppression, and of the correctness of this belief we can see no reason to doubt. All the elementary writers, who give us any information on the subject, concur in this representation, nor is there to be found in them, as far as we are aware of, a dictum or intimation to the contrary. Blackstone states that “the offence of riding or going armed with dangerous or unusual weapons, is a (p.421)crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edward III., ch. 3, upon pain of forfeiture of the arms, and imprisonment during the King’s pleasure.” 4 Bl. Com., 149. Hawkins, treating of offences against the public peace under the head of “Affrays,” pointedly remarks, “but granting that no bare words in judgment of law carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray, where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offence at common law and strictly prohibited by many statutes.” Hawk. P. C., B. 1, ch. 28, sec. 1. Burns & Tomlyns inform us that this term “Affray” is derived from the French word “effrayer,” to affright, and that anciently it meant no more, “as where persons appeared with armour or weapons not usually worn, to the terror of others.” Burns’ Verbo “Affray.” Dier do. It was declared by the Chief Justice in Sir John Knight’s case, that the statute of Northampton was made in affirmance of the common law. 3 Mod., 117. And this is manifestly the doctrine of Coke, as will be found on comparing his observations on the word “Affray,” which he defines (3 Just., 158) “a public offence to the terror of the King’s subjects, and so called because it affrighteth and maketh men afraid, and is enquirable in a leet as a common nuisance,” with his reference immediately thereafter to this statute, and his subsequent comments on it (3 Inst., 160), where he cites a record of 29 Edward I., showing what had been considered the law then. Indeed, if those acts be deemed by the common law crimes and misdemeanors, which are in violation of the public rights and of the duties owing to the community in its social capacity, it is difficult to imagine any which more unequivocally deserve to be so considered than the acts charged upon this defendant. They attack directly that public order and sense of security, which it is one of the first objects of the common (p.422)law, and ought to be of the law of all regulated societies to preserve inviolate–and they lead almost necessarily to actual violence. Nor can it for a moment be supposed that such acts are less mischievous here or less the proper subjects of legal reprehension, than they were in the country of our ancestors. The bill of rights in this State secures to every man, indeed, the right to “bear arms for the defence of the State.” While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employs those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege with which he has been invested.

It was objected below, and the objection has been also urged here, that the Court erred in admitting evidence of the declarations of the defendant, set forth in the case, because those, or some of them, at least, were acknowledgments of a different offence from that charged. But these declarations were clearly proper, because they accompanied, explained, and characterized the very acts charged. They were not received at all as admissions either of the offence under trial, or any other offence. They were constituent parts of that offence.

It has been remarked that a double-barrel gun, or any other gun, cannot in this country come under the description of “unusual weapons,” for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an “unusual weapon,” wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State, as an appendage of manly equipment. But although a gun is an “unusual weapon,” it is to be remembered that the carrying of a gun, per se, constitutes no (p.423)offence. For any lawful purpose–either of business or amusement–the citizen is at perfect liberty to carry his gun. It is the wicked purpose, and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.

Per Curiam. No Error.

Resolving your Cases Early (in the Day)

Decision fatigue is a problem all of us have. Making decisions – particularly complex decisions that require reflection, consideration, and nuanced thinking – is taxing on the brain. Consequently, the more one is tired, the more likely one is to make snap decisions.

That’s not surprising.

Nor should it be surprising that decision fatigue can affect how judges judge and sentence. But what is the effect? Do judges become more lenient, or more harsh?

An interesting recent study of more than 1,000 cases before an Israeli parole board reveals that judges’ leniency is apparently directly linked to glucose. Two scholars discussed judges’ decisions with respect to granting parole. (While North Carolina has for the most part sharply curtailed the use of parole, many criminal justice systems use parole as a way of letting people out of custody and into some kind of post-supervision release as a reward for good behavior while in custody.)

The granting of parole is a show of leniency. The scholars examined the decisions these parole cases to determine how closely the decision to parole – the lenient decision – was linked to time of day.

According to the New York Times, the scholars found that:

The benefits of glucose were unmistakable in the study of the Israeli parole board. In midmorning, usually a little before 10:30, the parole board would take a break, and the judges would be served a sandwich and a piece of fruit. The prisoners who appeared just before the break had only about a 20 percent chance of getting parole, but the ones appearing right after had around a 65 percent chance.

That’s a remarkable three times greater chance of being granted parole based on whether the judge had recently had something to eat.

It’s something to consider for defense lawyers. While some defense attorneys may wait until the end of a court session to resolve a case, it may make sense to resolve the case earlier in the session, shortly after the judge has had something to eat, while the judge is more energetic, and while the judge is may be more lenient.

Prosecutorial Control of the Calendar – History

North Carolina’s prosecutors – District Attorneys – control the criminal calendar, whereas in most other states, the calendar is controlled by an independent judicially authorized administrator.

While formally each judicial district is supposed to have a docketing plan pursuant to N.C.G.S. 7A-49.4, the docketing plans aren’t always binding.

Through their control of the calendar, prosecutors can effectively decide when and in front of which judges matters are heard. Since judges are not interchangeable, the choice of judge can greatly affect the outcome of a matter.

Through their management of the calendar, prosecutors can decide which judges hear which cases. One would think this practice would be unconstitutional.

However, since prosecutors in nearly all other states don’t have such power, very little case law has been created about this issue because most lawyers in the country don’t practice in such a regime.

While prosecutorial control of the calendar is rare today – confined to a few states – it used to be more common. Eighty years ago it was the case that prosecutors in most states controlled the calendar.

As Andrew Siegel notes in his article on South Carolina’s calendaring system, many states featured prosecutorial control of the calendar in the early 20th century. As the criminal justice system evolved in the 19th century, judges would ride circuit. They would literally ride from judicial district to judicial district. In a given week, for instance, they might be in Raleigh. Or Wilson. Or Pittsboro.

Not only would judges ride circuit, but defense lawyers would ride circuit behind the judges. Consequently, the only people who permanently worked and resided in a single location were prosecutors (and sheriff’s) who would look after the cases and defendants located in a particular location.

Judges therefore relied upon prosecutors to maintain the list of cases that needed to be resolved in a given location so that when judges rode into town, the calendar was easily available.

At the same time, in the 19th century prosecutors were regarded as neutral. Over time, prosecutors, however, became associated with zealous advocacy of the state’s position, as opposed to neutral officials.

Siegel, in his article, notes that even as the criminal justice system took on a more modern shape in the early 20th century, prosecutors clung to their special powers to set the calendar and call the calendar in the order of their choosing.

While nearly all states have abandoned this practice – recognizing the inherent unfairness – North Carolina continues to feature prosecutorial control of the calendar.

North Carolina’s Judicial Branch

North Carolina’s criminal justice system has three features – some would say, flaws – that make the practice of criminal defense law in this state particularly challenging. These features mean that people charged with crimes should seek out smart, aggressive lawyers who understand the structural problems with the system.

Let’s talk about one of them:

North Carolina features a weak, elected judiciary.

This is not meant to describe judges, who themselves are, for the most part, smart and conscientious. It’s meant to describe the overall power of the judiciary, which, since the founding of the state, was designed to be the weakest part of the three branches.

As anyone who has taken high school civics knows, governments – whether at the state or federal level – have three branches. North Carolina, too, has three branches. The executive branch, with the Governor at the helm. District Attorneys are part of the executive branch – although in North Carolina they serve a peculiar function.

The legislative branch – the North Carolina General Assembly – is the second branch. The judicial branch – with the North Carolina Supreme Court at the top and District Court at the lowest level – is the third branch.

North Carolina’s founding fathers created a state in which the General Assembly was the most powerful of the three branches. The founding fathers were naturally distrustful of a strong executive – e.g., King – and a strong, unelected judiciary. Consequently, they created a fairly weak judiciary and a weak executive. Reforms over the years have made the executive branch much stronger that it was at the State’s founding, but it is still a comparatively weak institution.

Almost as important is the fact that North Carolina elects its judges. In my view, this is a terrible way to choose judges. First, the election of judges means that judges must, naturally, think of the various political interests at stake when the rule on cases.

For instance, Mothers Against Drunk Driving (MADD) is a particularly powerful interest. Despite whether you think drunk driving is a good or bad thing – I think it’s, of course, bad – the rule of law and burdens of proof should matter much more than whether we catch every single drunk driver on the streets.

And yet, one could imagine judges being concerned about being re-elected if they were to run afoul of a special interest such as MADD.

Finally, the election of judges is almost never a good idea because, quite honestly, the voting public rarely has any idea either what makes for a good judge or whether the people they’re voting for as judges are truly qualified to fill that position.

Missed Court Dates – A “No Show” is a “No-No”

Not showing up to court on your assigned court date comes with multiple consequences that best should be avoided. First, a person will be “Called and Failed” (C&F) indicating you did not come to court and a “Failure to Appear” (FTA) will be entered into the court computer system by the clerk. Additionally, an FTA will come with it’s own fine of $200.00 in addition to any other fines you may have under the original charge.

For motor vehicle violations, the FTA will be transmitted to the North Carolina DMV on the 20th day following your missed court date. At that point, the DMV will send a notice to you indicating your license will be suspended 60 days after the date of the letter unless the FTA is cleared up. If caught driving during the period of suspension, you will likely be charged with Driving While License Revoked (DWLR) which carries its own consequences (see our blog on DWLR).

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