- Pretrial Vol. 1
- Contents and Preface
- 1 Pretrial Release
- 1.0 Contents and Introduction
- 1.1 Importance of Pretrial Release
- 1.2 Required Proceedings
- 1.3 Eligibility for Pretrial Release
- 1.4 Exceptions to Eligibility for Pretrial Release
- 1.5 Types of Pretrial Release
- 1.6 Law Governing Judge’s Discretion
- 1.7 Investigation and Preparation for Bond Reduction Motion
- 1.8 Procedure for Bond Reduction Motion
- 1.9 Post-Release Issues
- 1.10 Release Pending Appeal
- 1.11 Dismissal as Remedy for Violations
- Appendix 1-1 Interview Checklist for Bond Hearing
- 2 Capacity to Proceed
- 3 Probable Cause Hearings
- 4 Discovery
- 5 Experts and Other Assistance
- 6 Joinder and Severance
- 7 Speedy Trial and Related Issues
- 8 Criminal Pleadings
- 9 Grand Jury Proceedings
- 10 Jurisdiction
- 10.0 Contents and Introduction
- 10.1 Types of Jurisdiction
- 10.2 Territorial Jurisdiction
- 10.3 Federal Enclaves
- 10.4 Personal Jurisdiction
- 10.5 Subject Matter Jurisdiction of District Court
- 10.6. Subject Matter Jurisdiction of Juvenile Court
- 10.7 Subject Matter Jurisdiction of Superior Court
- 10.8 Jurisdiction of Individual Judges
- 10.9 Appeals, Post-Conviction Litigation, and Writs
- 11 Venue
- 12 Right to Counsel
- 12.0 Contents and Introduction
- 12.1 Scope of Right to Counsel
- 12.2 Consequences of Denial of Counsel
- 12.3 Types of Cases in which Right to Counsel Applies
- 12.4 Stages of Criminal Case in which Right to Counsel Applies
- 12.5 Appointment of Counsel
- 12.6 Waiver of Counsel
- 12.7 Right to Effective Assistance of Counsel
- 12.8 Attorney-Client Relationship
- 12.9 Repayment of Attorneys Fees
- Appendix 12-1 Dealing with Conflicts in Criminal Defense Representation
- 13 Motions Practice
- 14 Suppression Motions
- 14.0 Contents and Introduction
- 14.1 Evidence Subject to Exclusion
- 14.2 Warrants and Illegal Searches and Seizures
- 14.3 Illegal Confessions or Admissions
- 14.4 Illegal Identification Procedures
- 14.5 Substantial Violations of Criminal Procedure Act
- 14.6 Procedures Governing Suppression Motions
- 14.7 Appeal of Suppression Motions
- 15 Stops and Warrantless Searches
- 15.0 Contents
- 15.1 General Approach
- 15.2 Did the Officer Seize the Defendant?
- 15.3 Did the Officer Have Grounds for the Seizure?
- 15.4 Did the Officer Act within the Scope of the Seizure?
- 15.5 Did the Officer Have Grounds to Arrest or Search?
- 15.6 Did the Officer Act within the Scope of the Arrest or Search?
- Appendix 15-1 Stops and Warrantless Searches: Five Basic Steps
- Trial Vol. 2
- Contents and Preface
- 21 Personal Rights of Defendant
- 22 Duties and Conduct of Presiding Judge
- 23 Guilty Pleas
- 24 Right to Jury
- 25 Selection of Jury
- 26 Jury Misconduct
- 27 Miscellaneous Jury Procedures
- 28 Opening Statements
- 28.0 Contents and Introduction
- 28.1 Right to Opening Statement
- 28.2 Purpose and Scope
- 28.3 Reserving or Waiving Opening Statement
- 28.4 Variance between Opening Statement and Proof
- 28.5 Opening the Door to Otherwise Inadmissible Evidence
- 28.6 Admissions of Guilt During Opening Statement
- 28.7 Preservation of Issues for Appellate Review
- Appendix 28-1 Guideline 7.4 Opening Statement
- 29 Witnesses
- 29.0 Contents and Introduction
- 29.1 Securing the Attendance of Witnesses by Subpoena and Other Process
- 29.2 Securing the Production of Documents or Physical Evidence by Subpoena
- 29.3 Sequestration of Witnesses
- 29.4 Competency of Witnesses
- 29.5 Presentation of the Evidence
- 29.6 Witness Examination
- 29.7 Defendant’s Right to Testify or Not to Testify
- 29.8 Remote Testimony
- 29.9 Oath or Affirmation
- 30 Motions to Dismiss Based on Insufficient Evidence
- 31 Mistrials
- 31.0 Contents
- 31.1 Purposes of Mistrial
- 31.2 Timing of Mistrial Order
- 31.3 Standard of Review on Appeal
- 31.4 Mistrial Based on Prejudice to the Defendant
- 31.5 Mistrial Based on Prejudice to the State
- 31.6 Impossibility of Proceeding in Conformity With the Law
- 31.7 Juror Deadlock
- 31.8 Findings of Fact
- 31.9 Double Jeopardy and Mistrials
- 31.10 Practical Effect of Mistrials
- 32 Instructions to the Jury
- 32.0 Contents and Introduction
- 32.1 General Requirements
- 32.2 Charge Conference
- 32.3 Explanation of the Law
- 32.4 Requests for Instructions
- 32.5 Additional Instructions after Jury Retires
- 32.6 Trial Judge’s Authority to Provide Written Instructions to the Jury
- 32.7 Disjunctive Jury Instructions
- 32.8 IDS Performance Guidelines: Practical Considerations
- 32.9 Preservation of Issues for Appeal
- 33 Closing Arguments
- 33.0 Contents and Introduction
- 33.1 Right to Closing Argument
- 33.2 Purpose and Scope of Closing Argument
- 33.3 Time Limits
- 33.4 Number of Addresses
- 33.5 Order of Arguments
- 33.6 Admissions of Guilt During Closing Argument
- 33.7 Limitations on the Prosecution’s Argument
- 33.8 Preservation of Issues for Appellate Review
- Appendix 33‐1 Guideline 7.7 Closing Argument
- 34 Deliberations and Verdict
- 34.0 Contents and Introduction
- 34.1 Instructions to the Jury about Reaching a Verdict
- 34.2 Requests to Review Testimony and Exhibits During Deliberations
- 34.3 Coercion of the Verdict by the Trial Judge
- 34.4 Improper Expression of Opinion by Trial Judge
- 34.5 Deadlock
- 34.6 Use of Juror Notes During Deliberations
- 34.7 Verdicts
- 35 Appeals, Post‐Conviction Litigation, and Writs
- 35.0 Contents and Introduction
- 35.1 Appeals by the Defendant
- 35.2 Appeals by the State
- 35.3 Motions for Appropriate Relief
- 35.4 State Habeas Corpus
- 35.5 Resentencing after Successful Appellate or Post‐Conviction Review
- 35.6 Trial Judges' Authority to Correct, Modify, or Amend Judgments
- 35.7 Extraordinary Writs
- 35.8 Innocence Inquiry Commission
- Appendix A Performance Guidelines
- Appendix B Preserving the Record on Appeal
- Race
- Contents and Preface
- 1 Recognizing and Addressing Issues of Race in Criminal Cases
- 2 Police Investigation: Stops, Searches and Arrests
- 2.0 Contents
- 2.1 Scope of Chapter
- 2.2 Overview of Racial Profiling Concerns
- 2.3 Equal Protection Challenges to Police Action
- 2.4 Overview of the Protections Against Unreasonable Searches and Seizures
- 2.5 Consensual Encounters
- 2.6 Traffic and Pedestrian Stops
- 2.7 Other Selected Aspects of Warrantless Stops
- 2.8 Beyond Litigation
- 3 Eyewitness Identifications
- 4 Pretrial Release
- 5 Selective Prosecution: Plea Negotiations and Charging Decisions by Prosecutors
- 6 Composition of the Grand Jury and Trial Jury
- 7 Selection of the Trial Jury: Peremptory Challenges
- 8 Addressing Race at Trial
- 9 Sentencing
- 10 Sources of Information about Matters of Race
- Commitment
- Contents and Preface
- 1 Overview of Manual
- 1.0 Contents
- 1.1 Purpose of Manual
- 1.2 Terminology Used in this Chapter
- 1.3 Involuntary Commitment
- 1.4 Voluntary Admission
- 1.5 Commitments and Admissions through the Criminal Justice System
- 1.6 Collateral Consequences
- 1.7 Admissions Not Requiring Judicial Review
- 1.9 Division of Mental Health Forms
- Appendix 1-1 Commitments and Admissions: Quick Summary
- 2 Involuntary Commitment of Adults and Minors for Mental Health Treatment
- 2.0 Contents
- 2.1 Overview of Involuntary Commitment Process
- 2.2 Terminology Used in this Chapter
- 2.3 Involuntary Commitment: Prehearing Procedures
- 2.4 Outpatient Commitment Recommended by Physician or Eligible Psychologist Affiant
- 2.5 Attorney Representation
- 2.6 Initial Hearing
- 2.7 Disposition
- 2.8 Outpatient Commitment Supplemental Hearings
- 2.9 Rehearings for Inpatient Commitment
- 2.10 Rehearings for Outpatient Commitment
- 2.11 Special Emergency Procedure
- 2.12 Appeal
- Appendix 2-1 Involuntary Commitment of Adults and Minors for Mental Health Treatment
- Appendix 2-2 Memorandum to Magistrates
- 3 Involuntary Commitment of Adults and Minors for Substance Abuse Treatment
- 3.0 Contents
- 3.1 Substance Abuse Commitment
- 3.2 Terminology Used in this Chapter
- 3.3 Involuntary Substance Abuse Commitment
- 3.4 Attorney Representation
- 3.5 Hearings
- 3.6 Disposition
- 3.7 Supplemental Hearings
- 3.8 Rehearings
- 3.9 Discharge by Area Authority or Physician
- 3.10 Emergency Procedure for Violent Individuals
- 3.11 Appeal
- 3.12 Public Intoxication
- Appendix 3-1 Involuntary Commitment of Adults and Minors for Substance Abuse Treatment
- 4 Voluntary Admission of Adults for Substance Abuse Treatment
- 4.0 Contents
- 4.1 Voluntary Admission for Substance Abuse Treatment
- 4.2 Terminology Used in this Chapter
- 4.3 Admission and Treatment of Family Unit
- 4.4 Voluntary Admission of Incompetent Adult
- 4.5 No Admission by Advance Instruction
- 4.6 No Admission by Health Care Power of Attorney
- 4.7 Negotiating a Voluntary Admission When Substance Abuse Commitment Recommended
- 5 Voluntary Admission of Incompetent Adults
- 6 Voluntary Admission of Minors
- 7 Automatic Commitment—Not Guilty by Reason of Insanity
- 8 Commitment of Defendants Found Incapable of Proceeding
- 8.0 Contents
- 8.1 Overview
- 8.2 North Carolina Defender Manual: Capacity to Proceed
- 8.3 Terminology Used in this Chapter
- 8.4 Applicability to Adults and Juveniles Alleged to Be Delinquent
- 8.5 Determination of Incapacity to Proceed
- 8.6 Referral of Defendant for Civil Commitment Proceedings
- 8.7 Attorney Representation
- 8.8 Preparation for Hearing
- 8.9 Hearings
- 8.10 Dispositional Alternatives
- 8.11 Rehearings
- 8.12 Termination of Commitment
- 8.13 Supplemental Hearings in Criminal Court
- 8.14 Defendant’s Return to Stand Trial Upon Regaining Capacity
- Appendix 8.1 Capacity and Commitment Flow Chart
- 9 Involuntary Commitment and Voluntary Admission of Inmates
- 10 Voluntary Admission of Competent Adults for Treatment of Mental Illness
- 11 Admission for Mental Health Treatment Pursuant to Advance Instruction or Health Care Power of Attorney
- 12 Advising Clients on Collateral Matters and Consequences of Commitment
- 12.0 Contents
- 12.1 Overview
- 12.2 Terminology Used in this Chapter
- 12.3 Firearm Ownership and Possession
- 12.4 Driving Privileges
- 12.5 Restrictions on Patient Rights
- 12.6 Expunction of Minors’ Records of Admission and Commitment
- 12.7 Civil Rights and Remedies
- Appendix 12-1 Involuntary Commitments and Federal Firearms Disabilities
- Appendix A Forms
- Appendix B Motions
- Appendix C Working with Clients
- Appendix D Involuntary Commitment and the Federal Gun Control Act
- Appendix E Common Abbreviations
- Guardianship
- Contents and Preface
- 1 Overview of Adult Guardianship
- 2 Appointment of Attorney as Guardian ad Litem
- 3 Jurisdiction and Venue
- 4 Parties, Pleadings and Notice
- 5 Hearings, Practice and Procedure
- 6 Incapacity
- 7 Appointment of Guardians
- 8 Mediation of Adult Guardianship Cases
- 9 Appeal of Guardianship Orders
- 10 Modification and Termination of Guardianship Orders
- Immigration
- Contents and Preface
- 1 Obligations of Defense Counsel
- 2 Determining Your Client's Citizenship and Immigration Status
- 2.0 Contents and Introduction
- 2.1 Determining Whether Your Client Is a U.S. Citizen
- 2.2 Determining Your Noncitizen Client's Particular Immigration Status
- 2.3 Additional Interview Objectives for a Noncitizen Client
- 2.4 Sample Questions to Identify Client's Immigration Status and Eligibility for Relief
- Appendix 2-1 Sample Images of Immigration Documents
- Appendix 2-2 Sample Intake Form
- 3 Criminal Grounds of Removal and Other Immigration Consequences
- 3.0 Contents
- 3.1 Removal Defined
- 3.2 Deportability vs. Inadmissibility
- 3.3 Determining Whether a State Offense Triggers Removal
- 3.4 Crime-Related Grounds of Deportability
- 3.5 Crime-Related Grounds of Inadmissibility
- 3.6 Criminal Bars to Naturalization
- 3.7 Criminal Bars to Deferred Action for Childhood Arrivals
- 4 Conviction and Sentence for Immigration Purposes
- 5 Determining Possible Immigration Consequences Based on Your Client's Immigration Status
- 5.0 Contents and Introduction
- 5.1 Lawful Permanent Resident
- 5.2 Refugee (who has not yet obtained LPR status)
- 5.3 Person Granted Asylum (who has not yet obtained LPR status)
- 5.4 Nonimmigrant Visa Holder
- 5.5 Noncitizens with Temporary Protected Status
- 5.6 Noncitizens without Immigration Status
- 5.7 Summary of Priorities in Representing Noncitizen Clients by Status
- 6 Options for Minimizing Adverse Immigration Consequences
- 7 Procedures Related to Removal
- 8 State Post-Conviction Relief
- Appendix A Selected Immigration Consequences of North Carolina Offenses
- Appendix B Relevant Immigration Decisions
- Juvenile
- Contents and Preface
- 1 Overview of Manual and Juvenile Delinquency Proceedings
- 2 Rights and Protections Afforded to Juveniles
- 2.0 Contents
- 2.1 Sources of Juvenile Rights and Protections
- 2.2 Constitutional Rights Not Afforded to Juveniles
- 2.3 Right to Counsel
- 2.4 Right Against Self-Incrimination
- 2.5 Right to Standard of Proof Beyond a Reasonable Doubt
- 2.6 Right to be Free from Double Jeopardy
- 2.7 Right to an Open Hearing
- 2.8 Right to Confidentiality
- 2.9 Right to Appointment of Guardian
- 3 Juvenile Court Jurisdiction and Parties to Juvenile Proceedings
- 4 Communicating with the Juvenile Client
- 5 Intake and Diversion
- 6 Petition and Summons
- 7 Capacity to Proceed
- 7.0 Contents
- 7.1 Overview
- 7.2 Resources on Juvenile Capacity Issues
- 7.3 Terminology Used in this Chapter
- 7.4 Motions Pending Capacity Proceedings
- 7.5 Standard for Capacity to Proceed to Adjudication
- 7.6 Investigating Capacity to Proceed
- 7.7 Consequences of Questioning Capacity
- 7.8 Obtaining an Expert Evaluation
- 7.9 Examination by Local Examiner or State Facility
- 7.10 Post-Examination Procedure
- 7.11 Hearing on Capacity to Proceed
- 7.12 Admissibility at Adjudication of Results of Capacity Evaluation
- Appendix 7-1: Practical Tips for Attorneys on Using Capacity
- 8 Custody and Custody Hearings
- 9 Probable Cause and Transfer Hearings
- 9.0 Contents
- 9.1 Overview
- 9.2 Terminology Used in this Chapter
- 9.3 First Appearance
- 9.4 Probable Cause Hearing
- 9.5 Finding of No Probable Cause
- 9.6 Finding of Probable Cause
- 9.7 Appeal of Finding of Probable Cause
- 9.8 Transfer of Jurisdiction to Superior Court
- 9.9 Procedures for Transfer Hearing
- 9.10 Appeal of Order of Transfer
- 9.11 Right to Pretrial Release on Transfer
- 9.12 Detention Following Transfer
- Appendix 9-1: Sample Questions for Probable Cause and Preliminary Hearings
- 10 Discovery
- 10.0 Contents
- 10.1 Overview
- 10.2 Terminology Used in this Chapter
- 10.3 Procedures for Obtaining Discovery
- 10.4 Juvenile's Statutory Right to Discovery
- 10.5 Juvenile's Constitutional Right to Disclosure of Exculpatory Evidence
- 10.6 North Carolina Rules of Professional Conduct
- 10.7 Voluntary Disclosure by State
- 10.8 Other Sources of Information
- 10.9 Public Records Request
- 10.10 State's Statutory Right to Discovery
- 10.11 Protective Order
- 11 Motions to Suppress
- 11.0 Contents
- 11.1 Motions Practice in Juvenile Court
- 11.2 Filing Motions and Hearing Procedures
- 11.3 Bases for Motions to Suppress Statement or Admission of Juvenile
- 11.4 Case Law: Motions to Suppress In-Custody Statements of Juveniles
- 11.5 Suppression of Evidence Obtained through Illegal Search and Seizure
- 11.6 Suppression of Illegal Identifications
- 12 Adjudicatory Hearings
- 13 Dispositional Hearings
- 13.0 Contents
- 13.1 Overview
- 13.2 Terminology Used in this Chapter
- 13.3 Preliminary Matters
- 13.4 Predisposition Investigation and Report
- 13.5 Dispositional Hearing
- 13.6 Dispositional Alternatives
- 13.7 Delinquency History Levels and Offense Classification
- 13.8 Dispositional Limits for Each Class of Offense and History Level
- 13.9 Registration of Juvenile Adjudicated for Certain Sex Crimes
- 13.10 Dispositional Order
- 13.11 Modification of Dispositional Order
- Appendix 13-1: Authorization to Prepare Pre-Disposition Report
- Appendix 13-2: Quick Reference Guide for Dispositional Hearing
- Appendix 13-3: Juvenile Disposition Options
- 14 Probation
- 15 Commitment to the Division of Adult Correction and Juvenile Justice
- 15.0 Contents
- 15.1 Overview
- 15.2 Terminology Used in this Chapter
- 15.3 Juveniles Subject to Commitment
- 15.4 Holdover Facility Pending Placement
- 15.5 Role of Attorney Following Commitment
- 15.6 Term of Commitment
- 15.7 Placement by Division
- 15.8 Post-Release Supervision
- 15.9 Revocation of Post-Release Supervision
- 15.10 Transfer Authority of Governor from Jail or Prison to Division
- Appendix 15-1: Youth Development Centers in North Carolina
- 16 Appeals
- 17 Expunction of Juvenile Records
- 18 Performance Guidelines
- 19 Raise the Age Legislation
- Appendix A: Juvenile Justice and Medicaid
- Practice Guides
- Other Manuals
- Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina
- Chapter 3, Child Support in North Carolina Trial Judges' Bench Book, District Court, Volume 1, Family Law (2024 ed.)
- Relief from a Criminal Conviction
- Collateral Consequences Assessment Tool (C-CAT)
- COVID-19 Tool Kit
- NC Superior Court Judges' Benchbook
- NC Pro - Digital Knowledge Base on Criminal Law and Procedure for North Carolina Prosecutors
- Home
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John Rubin (Ed.)
John Rubin (Ed.)
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Campus Box 3330
UNC-Chapel Hill, Chapel Hill, NC 27599-3330
Campus Box 3330
UNC-Chapel Hill, Chapel Hill, NC 27599-3330