JUST ANOTHER STATUTE AT LAW

Ralph B. Strickland, Jr.
Chief Assistant District Attorney
District Court Division
Office of the District Attorney
James E. Hardin, Jr.
Fourteenth Prosecutorial District
Durham, North Carolina

Article 14
N.C.G.S. 15A-271 through 282
Volume 4 Number 6
May 1998

NONTESTIMONIAL IDENTIFICATION

This commentary will simply state some of the general facts concerning nontestimonial identification. For a fuller understanding, please read the statutes and consult with your prosecutor.

1. Nontestimonial identification evidence is that which is, well, nontestimonial ... that is, fingerprints, physical measurements, saliva samples, handwriting exemplars, and the like. Testimonial evidence is usually an admission or confession.

2. Article 14 authorizes the issuance of an order requiring the suspect to submit to such nontestimonial procedures.

3. Although the statute states that a nontestimonial order can issue at anytime during the investigation, case law now holds that a nontestimonial identification order can be issued only when the suspect is not in custody. Simple rule: no custody = nontestimonial order; custody = search warrant.

4. In order to secure the NTO (nontestimonial identification order) you must show that probable cause exists that a crime was committed, but only reasonable suspicion that this suspect committed it.

5. A judge (not a magistrate) issues the NTO based upon the application of a prosecutor (not a law enforcement officer.)

6. The NTO must be served at least 72 hours before the procedure is to be performed. This time requirement can be modified by the judge for good cause shown, and the procedure must be performed immediately. Good cause might consist of evidence that the suspect will flee the jurisdiction when he learns he is a suspect, or the evidence is easily lost and is not likely to survive a 72 hour wait (gunshot residue on the hands, for example.)

7. If the suspect fails to appear, he may be held in contempt.

8. In performing the procedures upon the suspect, reasonable and necessary force may be used to secure his cooperation. A refusal to cooperate on the suspect's part may cause a judge to hold him in contempt. If he refuses to cooperate, seek advice of counsel before the application of force.

9. He is entitled to a lawyer during the procedure. If he is indigent and so chooses, the court will appoint one. He should be given this warning when the NTO is served on him.

10. The suspect may request an NTO if law enforcement does not. The court could then order a law enforcement agency to perform the procedures, and then have the evidence analyzed.

11. WARNING! BLOOD SPECIMENS: ALWAYS USE A SEARCH WARRANT! ALTHOUGH THE STATUTE STATES THAT AN NTO MAY BE USED TO SECURE A BLOOD SPECIMEN, CASE LAW HOLDS OTHERWISE. ALWAYS SECURE A SEARCH WARRANT, IN/OUT OF CUSTODY, FOR A BLOOD SPECIMEN. ALL TOGETHER NOW: IF I NEED A BLOOD SAMPLE, I WILL ALWAYS USE A SEARCH WARRANT! GOOD. THANK YOU.

12. Unless counsel is available to the suspect and actually present at the procedure, no incriminating statement made by the suspect at the procedure is admissible in court as evidence against him. This is a nontestimonial procedure, after all.

All this presupposes that the suspect has not consented to the nontestimonial identification procedures. If the suspect agrees to any nontestimonial procedure, an order is not necessary. Of course, you may always use one in case he later says he did not consent. I imagine that this decision will depend on the circumstances of each case.

Read the statute and consult with your prosecutor now about NTOs. Do not wait until you need one at 0300 when most of us are asleep, and you are hesitant about what you should do. Also, now is the time to read Part 3 of Chapter 4 of Bob Farb's Arrest, Search, and Investigation in North Carolina, Institute of Government, The University of North Carolina at Chapel Hill, Second Edition, 1992, pages 186 - 190. If you cannot guess the subject matter of that section, look it up. Every bit of Bob's text is worthy of your undivided attention, perusal and scrutiny. Or, you might just want to read it. Yeah.

Thank you for your attention.