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.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.