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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



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