From NACDL’s Fourth Amendment Center – One of the most challenging parts of litigating surveillance technology in criminal cases is identifying and getting access to appropriate discovery. Often, the types of technologies used in a case are opaque and cannot be identified, let alone challenged, until certain information is shared during discovery. Even if you …
Motions & Briefs
Discovery Template for AI and Surveillance Technology Evidence
The Discovery Demand for AI and Surveillance Technology Evidence template created by Mitha Nandagopalan of the Innocence Project’s Strategic Litigation Department outlines categories of discovery that can be requested in cases involving artificial intelligence and surveillance tools. By reviewing this list and incorporating relevant requests in their discovery motions, attorneys can seek disclosure of technological …
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Challenging an officer’s identification of marijuana by sight or smell
There have been several posts on this and related topics here and here. This post will attempt to compile all of the resources and walk attorneys through the process of making these challenges. N.C. Gen. Stat. § 90-87(16) provides the statutory definition of marijuana, specifically excluding from its definition industrial hemp. Industrial hemp, as defined in …
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Challenging identification of marijuana by sight or smell
After its decriminalization at the federal level, states have begun implementing programs to oversee the production, manufacture, and distribution of hemp products. Some North Carolina farmers have been participating in a pilot program which allows the legal production of industrial hemp. Since hemp’s legalization, North Carolina faces several areas of uncertainty in enforcement of marijuana …
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Independent testing of blood for drugs or alcohol when a client is in custody
In some cases, an attorney needs a defendant’s blood to be collected for independent toxicology testing immediately after arrest and no specimen has been collected by the state. The presence of a controlled/impairing substance and its metabolites will dissipate within hours or days, so time is of the essence if an attorney wishes to have …
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Having a client declared indigent for the purpose of attaining expert assistance
In some cases where an attorney has been retained, the defendant may exhaust their funds and not be able to pay for expert assistance that is needed in the case. The ability for a defendant to access expert witness assistance is protected by the Due Process Clause of the Fourteenth Amendment, but attorneys for may …
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Sample Motion for Preservation of Forensic Evidence
This motion is designed to: Preserve evidence for future testing by defense experts Remediate situations in which State testing will consume the entire sample Protect the client’s legal interests regarding the destruction of evidence An order to preserve evidence should be sought at the outset of a case. Some preservation orders prohibit all testing or …
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Sample Motion for Independent Testing of Evidence
Defense attorneys may decide to make a motion for independent testing of forensic evidence in cases where either the State has chosen not to complete forensic testing of an item of evidence or where the State has tested the item and the defense would like it to be re-tested. This issue has come up more …
Notice and demand procedures
Jessica Smith’s recent post, Don’t Look a Gift Horse in the Mouth, on the School of Government’s North Carolina Criminal Law blog reminded readers about the use notice and demand statutes in cases involving lab reports or chain of custody statements. Notice and demand statutes, in a nutshell, allow prosecutors to obtain a waiver of …