“Britny’s Law” Set to Expand 1st Degree Murder Beginning in December

On July 11, Governor Cooper signed into law a bill known to the public as “Britny’s Law,” which adds “domestic violence homicide” to the current statute laying out the requirements for first degree murder.  The bill was named for and passed in response to the case of Britny Puryear, a 22 year old Fuquay-Varina woman who in 2014 was shot and killed by her live-in boyfriend who was also the father of her child.

The current statutory framework for murder in North Carolina is codified in N.C. Gen. Stat. sec. 14-17.  In this state, as in many other states, murder is divided into first degree and second degree, with the more serious first degree allowing for stricter sentencing (possibly even the death penalty) than second degree.  The difference between these two crimes deals primarily with the defendant’s mental state: specifically, a person is considered to have committed murder in the first degree when they acted willfully, deliberately, and with premeditation.  In other words, a person has committed first degree murder when they actually planned to kill another person and reflected on doing so (killing in cold blood).  Felony murders (murders committed in the course of the commission of a felony enumerated in the statute, such as robbery, kidnapping, etc.) also fall into this category. All other murders (except for those committed in the course of the enumerated felonies in sec. 14-17(a)) are treated as murder in the second degree, and are considered to be malice killings.  The difference between the premeditation/deliberation of first degree and the malice requirement of second degree is that a person acting with malice did not necessarily intend to kill the victim, but rather acted with such reckless disregard for human life that any reasonable person would have recognized that their actions were likely to lead to the death of another person.

Under Britny’s Law, which will take effect on December 1, a new subsection of 14-17(a) will allow for a new type of first degree murder charge: domestic violence homicide.  Under the new law, a homicide defendant who is or has been in a romantic/sexual relationship (marriage, children in common, dating partners, etc.) with the victim, and has also in the past been convicted of a domestic violence offense against that victim, will now have to overcome a rebuttable presumption that they acted with premeditation and deliberation in committing the homicide.  This effectively places the burden on those defendants to prove to a jury that they did not have the requisite mental state necessary for a first degree murder conviction.

While domestic violence cases such as the new law’s namesake illustrate why society may find broader murder laws (and thus stricter homicide punishments) to be desirable, the new law may nonetheless potentially face constitutional scrutiny when it is eventually applied in a real criminal case.  Under the United States Constitution, a person may not be convicted of a crime unless a jury is convinced beyond a reasonable doubt that they have committed the crime charged.  Thus, the State in any criminal prosecution has the burden of proving that the defendant is guilty.  The courts over the years have interpreted this framework to mean that new laws may not go so far as to ease this burden for the State or to require that a criminal defendant be forced to essentially prove his innocence.  In making such a determination, courts have typically drawn a distinction between new laws allowing a permissive inference by the jury (the jury may consider the information as evidence of guilt or an element of the crime charged), and a mandatory rebuttable presumption, in which the jury is required to consider the defendant guilty or that a particular element has been met unless the defendant effectively rebuts that evidence.

While it is currently too early to tell, it seems possible that this law could be found to be unconstitutional on the grounds that, where a defendant meets the requirements under this new law, that defendant effectively has to prove to the jury that he did NOT act with premeditation and deliberation, thus forcing him to prove his innocence (with regard to his mental state in committing the act) and as a result easing the State’s burden in prosecuting the case.  However, some case law does exist to the contrary (such as where the evidence is not contradicted and the presumption is considered to be “unerringly accurate,”), so at this point the constitutional status of Britny’s law is still uncertain.  What is certain is that over the next few years this new law will be an interesting topic of debate in legal circles.

– Johnathon Naylor

What does “Presumed Innocent” really mean in front of a jury?

by Paul Castle

Yes, the burden of proof for the government in a criminal trial is ‘proof beyond a reasonable doubt’.  Yes, the law says that you are presumed innocent unless and until you are proven guilty.   But the problem is, it is not some omniscient being called ‘the law’, but twelve men and women from the community called ‘the jury’, who renders the verdict.  So an important question to ask is, ‘Do jurors really presume a criminal defendant to be innocent unless and until proven guilty?’

I always tell my client before a jury trial that a jury trial is an art, an art of persuasion, not a science.  In a football game, referees would bring out a tape measure to the field to ascertain whether the distance covered was exactly ten yards or not.  If it was nine point 3 yards, it would not be called ‘first down.’  In other words, things are precise in football.  Things are not quite like that in a jury trial.  There is no yard stick or tape measure that juors can use to determine whether the evidence presented was proof beyond a reasonable doubt or not  There is no electronic gauge or device that jurors can rely on to determine whether they are persuaded only up to the ‘more probable than not’ standard or whether they are really persuaded beyond a reasonable doubt.

However strong or however weak the evidence might appear to you or me does not matter.  However weak or flimsy the government’s case might seem to you or me, the jury might still find the defendant guilty.  By the same token, however strong or overwhelming the government’s evidence might appear to an outside observer, the jury might still return a verdict finding the defendant not guilty.  In any given case we cannot tell in advance what will make the jury tick. We cannot know in advance what will make the jurors reach an unanimous decision in one way or the other.  In the end, whatever it might take to convince the jurors to vote in your favor, that is the only thing that matters.  That’s why I frequently tell my clients that if you want to win, the jurors will have to like you.  If they like you, they will find a way to help you.  They will find a way to find you not guilty, no matter what the evidence might be.

Some of my clients would tell me that since a defendant are presumed innocent in a criminal trial, they would just like to sit back and make the government prove their case.  I would tell these clients that they would most likely lose their cases if this was their attitude.   I would gently advise them that in reality they are not presumed innocent unless proven guilty.  I would tell them: the moment that jurors find out that you are a criminal defendant charged with such and such offenses, the jurors almost immediately believe you are guilty.  The moment the trial begins, you are guilty, not innocent, in the minds of the jurors.  The pendulum is all the way up in the guilty section.  And we, the defense, have to chip away and chip away at the government’s evidence as the case progresses.  We have to try to bring the pendulum back to the ‘not guilty’ section, little by little.

We can, and you can, bring the pendulum back to the ‘not guilty’ section only if you go in with the attitude that you are going to prove your case, with the attitudee that you are going to prove your innocence.  The legal standard that you are presumed innocent until proven guilty is a fiction that is not going to help.  Don’t rely on a legal fiction.  Rely on yourself.  Go in there and do everying you can to prove your innocence.  Then, the jury will help you.

When do the Miranda Rights kick in?

Frequently, my clients would tell me during a consultation that they were not read their rights during their interaction with law enforcement.  They would usually be quite upset when they would tell me about this.  And they would nearly always go on to ask, “Shouldn’t they dismiss my case?”  Nearly always, my answer would be, “Not so fast.”

One of the first things we learn in law school is that one’s right to the Miranda warning kicks in when one is subject to custodial interrogation.  A paradigm example of a custodial interrogation is something like the following:  you get arrested; you are then taken to a police station; and you are then confronted with officers who ask you a bunch of questions about an incident they are investigating.  In other words, your Miranda rights or your right to a Miranda warning do not get triggered unless you are first in custody and unless you are subject to questioning by officers under those circumstances.

Let’s suppose that you are pulled eneover by an officer for a traffic violation.  The officer now tells you that he can smell the odor of marijuana emanating from inside your vehicle.  The officer then asks you, “Did you recently smoke marijuana inside the car?”  Under that scenario, you are, technically speaking, being detained for investigative purposes, not arrested.  So your Miranda rights do not kick in.  And the officer does not have to first read you the Miranda rights before he starts questioning you.  Of course, the line between being arrested and being detained is not always cristal clear.

Now let’s imagine a situation where your Miranda rights are violated.  Suppose that you get arrested, you get taken to a police station and then you get subjected to questioning by officers without first being given the Miranda warning.  Let’s further suppose that you get charged criminally after such custodial interrogation.  Does this mean that your charges ought to be dismissed entirely because your rights were violated?  Not so fast.  In general, the only remedy you can obtain from the courts where your Miranda rights are violated is that any statement or statements you made to law enforcement in violation of your Miranda rights will be suppressed.  That is, law enforcement will not be allowed to use whatever statement you made in violation of your rights at trial against you.  However, the criminal charges themselves remain in place, and all the other evidence also remain in place.


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