119.1Defendant’s Discovery Rights

Sources of Defendant’s Right to Discovery Material

Statutory Discovery Rights

There is no common law right to discovery in criminal cases. State v. Hardy, 293 N.C. 105 (1977). However, several North Carolina statutes (which were significantly revised in 2004) address criminal discovery and the scope of what the defendant is entitled to receive. See G.S. 15A-902 (discovery procedure and time limitations on requesting discovery); G.S. 15A-903 (defendant’s right to state’s evidence); G.S. 15A-905 (state’s right to defendant’s evidence); G.S. 15A-904 and 15A-906 (evidence expressly protected from pretrial discovery); G.S. 15A-1415(f) (discovery of state’s complete files by defendant represented by counsel who files motion for appropriate relief); G.S. 15A-294(f) (contents of intercepted wire, oral, or electronic communications); G.S. 15A-925 (bill of particulars); G.S. 15A-267 (defendant’s pretrial access to DNA samples from crime scene); see also G.S. 7A-49.4(b)(2) (court shall set deadlines for delivering discovery after arraignment).

There are no statutory rights to discovery in district court, or for misdemeanors on appeal to superior court for trial de novo, because the discovery statutes cited above only apply to cases “within the original jurisdiction or the superior court." See G.S. 15A-901, Official Commentary; State v. Cornett, 177 N.C. App. 452 (2006); McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 468 (2004). However, even in district court, the defendant always has a right to discovery of Brady material, discussed below.

Constitutional and Due Process Discovery Rights

The U.S. Supreme Court has identified “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). The most well-known evidence of this type is Brady evidence — that is, evidence in the state’s possession which is favorable and material to the defense. The defendant’s right of access to Brady and other evidence is based primarily on the Due Process Clause.

The North Carolina courts have similarly recognized that a defendant has discovery rights under Article I, section 19 of the North Carolina Constitution (law of land clause). See State v. Cunningham, 108 N.C. App. 185 (1992) (recognizing constitutional right to data underlying tests of evidence). Article I, section 23 (rights of accused, including right to counsel and confrontation) also may support defense discovery. See State v. Canaday, 355 N.C. 242, 253–54 (2002) (relying on article I, sections 19 and 23 of the state constitution as well as the Sixth Amendment in finding a discovery violation). The North Carolina Supreme Court has indicated that trial courts have the inherent authority to order discovery in the interests of justice. See State v. Hardy, 293 N.C. 105 (1977) (case analyzed under former G.S. 15A-903 and G.S. 15A-904); however, a trial court does not have the authority to order discovery where a statute specifically restricts it. Hardy, 293 N.C. at 125.

What the Defendant is Entitled to Receive

1. Complete Files of Prosecutors’ Offices and Law and Investigatory Enforcement Agencies; Oral Statements by Witnesses - G.S. 15A-903(a)(1)
   
   
   1. Case File
      Complete files of all prosecutors’ offices and law enforcement and investigatory agencies in the investigation of the crimes committed or the prosecution of the defendant. “File” is broadly defined to include the defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or "any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant." Id. Oral statements must be in written or recorded form. The defendant has the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein.
   2. Tests and Examinations
      In addition to any test or examination results, all other data, calculations, or writings of any kind must be made available to the defendant, including preliminary test or screening results and bench notes. For cases concerning lab testing materials under former versions of the statute, see State v. Fair, 164 N.C. App. 770 (2004) (defendant entitled to information concerning data collection procedures, but not peer review of testing procedures); State v. Dunn, 154 N.C. App. 1 (2002) (court ruled that defendant was entitled to documents concerning false positives at SBI lab, lab protocol, and credentials of lab employees); and State v. Cunningham, 108 N.C. App. 185 (1992) (court ruled that defendant was entitled to underlying data).
      The state must provide the defendant with the results of any chemical tests—for example, a chemist’s report showing the defendant’s blood alcohol level. The state must preserve only evidence that might be expected to play a role in the suspect’s defense (evidence having apparent exculpatory value and of such a nature that comparable evidence is not reasonably available). California v. Trombetta, 467 U.S. 479 (1984); State v. Jones, 106 N.C. App. 214 (1992) (same ruling under state constitution).
   3. Oral Statements
      Oral statements must be in written or recorded form. A witness’s oral statements made to a prosecutor outside the presence of a law enforcement officer or investigatory assistant does not have to be memorialized, unless there is significantly new or different information in the oral statement from a prior statement made by the witness. See State v. Rainey, 198 N.C. App. 427 (2009) (witness testified at trial that the defendant made the following statement about the victim during the robbery: “I hope this spic is dead;” not a discovery violation where state provided information prior to trial that the witness had stated that “they hated Mexicans” and there was no unfair surprise); State v. Small, 201 N.C. App. 331 (2009) (in a later statement to the prosecutor, the victim recounted the same details regarding the crime he had initially told the police, but said that he did not remember speaking to the police at the crime scene – victim not remembering speaking to the police was not significantly new or different information triggering a duty on the part of the state to disclose the statement); State v. Zamora-Ramos, 190 N.C. App. 420 (2009) (state complied with G.S. 15A-903(a)(1) by providing the substance of oral statements made by the state’s informant to the supervising detective after each of the controlled buys - court rejected the defendant’s contention that the conversations between the detective and informant were not recorded in writing with sufficient detail to comply with G.S. 15A-903(a)(1)).
   4. Investigatory Agency
      “Investigatory agency” includes any public or private entity that obtains information on behalf of a law enforcement agency or prosecutor’s office in connection with the investigation of the crime committed or the prosecution of the defendant. See State v. Pendleton, 175 N.C. App. 230 (2005) (court ruled that notes in a DSS file but not in the prosecutor’s file were not discoverable under G.S. 15A-903(a)(1), because DSS is not a prosecutorial agency, nor did DSS act as a prosecutorial agency in this case). [Note that this case was decided before the statute was amended in 2011 to include the term and definition of “investigatory agency.”]
2. Expert Witnesses - G.S. 15A-903(a)(2)
   The state must give notice to the defendant of any expert witnesses that the state reasonably expects to call as a witness at trial. Each such witness must prepare, and the state must furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The state must also furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The state must give the notice and furnish the materials required by this subsection within a reasonable time before trial, as specified by the court. State v. Blankenship, 178 N.C. App. 351 (2006) (state failed to give proper notice of an SBI expert witness, and then elicited expert testimony from the witness on the stand, notwithstanding state’s claim that witness was only offered as a factual lay witness).
3. Contents of Intercepted Wire, Oral, or Electronic Communications - G.S. 15A-294(f)
   G.S. 15A-294(f) provides that the contents of any intercepted wire, oral, or electronic communication, or evidence derived from such communication, may not be received into evidence unless each party, not less than 20 working days before the trial, hearing, or other proceeding, has been furnished with a copy of the order and accompanying application under which the interception was authorized.
4. List of Witnesses at Beginning of Jury Selection - G.S. 15A-903(a)(3)
   The state must give the defendant, at the beginning of jury selection, a written list of the names of all witnesses whom the state reasonably expects to call during the trial. Names of witnesses are not subject to disclosure if the state certifies in writing and under seal to the court that to do so may subject the witnesses or others to physical or substantial economic harm or coercion, or that there is other particularized, compelling need not to disclose. If there are witnesses whom the state did not reasonably expect to call at the time of the provision of the witness list, and as a result are not listed, the court on a good faith showing must allow the witnesses to be called. Additionally, in the interest of justice, the court may in its discretion permit other undisclosed witnesses to testify. See State v. Flint, 199 N.C. App. 709 (2009) (witness name mistakenly listed as Karen Holbrook instead of Karen Holman – not error to allow her to testify to authenticate a videotape); State v. Taylor, 178 N.C. App. 395 (2006) (permitting witness not named on list to testify as custodian of records – state had disclosed that it would call a custodian, and witness’s name was in the discovery); State v. Brown, 177 N.C. App. 177 (2006) (permitting testimony of witness not known to the state until the morning of trial; court found that a good faith showing had been made under State v. Smith, 291 N.C. 505 (1977) and G.S. 15A-903(a)(3) to allow the witness to testify).
   See also G.S. 15A-1054 (setting forth prosecutor's statutory duty to disclose any grants of immunity, sentencing concessions, or charge reductions offered in return for a witness's truthful testimony - disclosure must be given in writing to the defendant against whom the testimony will be offered, and made within a reasonable time prior to the proceeding).
5. Constitutional Obligation to Disclose Brady/Giglio Material
   The state has a constitutional duty under the due process clause to disclose to the defendant any material evidence that is favorable to the defense for a trial or sentencing hearing, including impeachment evidence. See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995); Cone v. Bell, 556 U.S. 449 (2009).
   
   1. What is “Material” Evidence?
      The United States Supreme Court in United States v. Bagley, 473 U.S. 667 (1985), ruled that nondisclosed evidence which is favorable to the defense (in this case, information about government inducements to prosecution witnesses which had been specifically requested by the defense) is material if its nondisclosure undermines confidence in the outcome of the trial. The Court explained that the following standard of materiality applies, in determining whether the state’s nondisclosure results in constitutional error requiring a new trial, regardless of whether the defense requested disclosure of the material or not: is there a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome of the case, that had the evidence been disclosed to the defense the result of the trial would have been different? Although the court’s opinion in Bagley was a plurality opinion, a court majority then adopted its approach in Kyles v. Whitley, 514 U.S. 419 (1995). The court made four points about the standard:
      
      1. The defendant does not need to prove that more likely than not (i.e., by a preponderance of evidence) he or she would have received a different verdict with the undisclosed evidence, but only whether in its absence the defendant received a fair trial—“a trial resulting in a verdict worthy of confidence.” A “reasonable probability” of a different verdict is shown when the suppression of evidence “undermines confidence in the outcome of the trial.”
      2. The Bagley materiality standard is not a sufficiency-of-evidence test. A defendant need not prove that, after discounting inculpatory evidence in light of the undisclosed favorable evidence, there would not have been enough left to convict. Instead, the defense must only show that favorable evidence could reasonably place the whole case in such a different light as to ‘undermine confidence’ in the verdict.
      3. If a reviewing court finds a constitutional error under Bagley, there is no harmless error analysis. The defendant is entitled to a new trial.
      4. The suppressed favorable evidence must be considered collectively, not item-by-item. In discussing this issue, the court rejected the state’s argument that it should not be held accountable for favorable evidence known only to law enforcement officers and not to the prosecutor. The prosecutor has a duty to learn of favorable evidence known to others acting on the state’s behalf in the case, including law enforcement officers.
         The court in Kyles reviewed the undisclosed favorable evidence in the case, and ruled that its disclosure to competent counsel would have made a different result reasonably probable, based on: (1) prior inconsistent statements of eyewitnesses identifying the defendant as the killer, which could have been used to impeach their trial testimony; (2) statements of a police informant, which were self-incriminating and could also be used to question the probative value of crucial physical evidence; and (3) a computer printout of license numbers of cars parked at the murder scene, which did not list the number of the defendant’s car. See also State v. Sandy, 788 S.E.2d 200 (2016) (violation for state not to disclose evidence known to the prosecutor about victim’s drug activity, which would have supported defense theory of the case); Smith v. Cain, 565 U.S. 73 (2012) (Brady violation where state failed to disclose officer’s notes regarding eyewitness’s inability to recognize perpetrators; impeachment evidence may not always be material, but it was in this case given the importance of the witness’s testimony and weakness of state’s other evidence); Banks v. Dretke, 540 U.S. 668 (2004) (reversal of death sentence based on state’s suppression of evidence that key state’s witness was informant paid for information in case); State v. Canady, 355 N.C. 242 (2002) (error for court not to order state to disclose the name of the informant who implicated five other people as being involved in the murders and the name and address of the person returned from Mississippi by officers who had named a person, not the defendant, who had arranged the murders; defendant needed access to these people to interview them and develop leads to make effective use of the evidence at trial); State v. Martinez, 212 N.C. App. 661 (2011) (trial court erred by failing to require disclosure of material exculpatory information contained in privileged documents that were reviewed in camera by trial court and pertained to the victim’s allegations; documents contained “sufficient exculpatory material to impeach the state’s witnesses in child sex case”).
         Conversely, where the defense fails to show a reasonable probability that the evidence would have resulted in a different outcome sufficient to undermine confidence in the outcome, the failure to disclose that evidence was not a Brady violation. See, e.g., Wood v. Bartholomew, 516 U.S. 1 (1995) (state failed to disclose that during a polygraph ex­amination of one of its key witnesses, two responses by the witness to questions about the murder indicated deception – no violation since polygraph was not admissible anyway, and court rejected the defendant’s argument that disclosure of this evidence might have led defense counsel to conduct additional discovery potentially producing other evidence that could have been used at trial); see also State v. Campbell, 133 N.C. App. 531 (1999) (evidence was not materially exculpatory); Strickler v. Greene, 527 U.S. 263 (1999) (defendant failed to meet burden of showing “reasonable probability” that result of trial or sentencing hearing would be different); Wood v. Bartholomew, 516 U.S. 1 (1995) (discussed above); State v. Johnson, 128 N.C. App. 361 (1998) (state complied with Kyles v. Whitley in attempting to locate evidence of alleged second photographic lineup shown to state’s witness); State v. Smith, 337 N.C. 658 (1994) (state’s failure to disclose evidence was not prejudicial error because there was no reasonable probability that disclosure would have affected outcome of trial); State v. Howard, 334 N.C. 602 (1993) (failure to disclose eyewitness’s inability to positively identify defendant was not constitutional error); State v. Potts, 334 N.C. 575 (1993); State v. Hodge, 118 N.C. App. 655 (1995); State v. Sanders, 327 N.C. 319 (1990); State v. Coats, 100 N.C. App. 455 (1990); Bond v. Procunier, 780 F.2d 461 (4th Cir. 1986).
   2. Only Applies to “Favorable” Evidence
      The defendant is entitled to any material and exculpatory evidence, but he or she is not constitutionally entitled to receive inculpatory evidence, even if specifically requested. Brady v. Maryland, 373 U.S. 83 (1963), State v. Adcock, 310 N.C. 1 (1984). In practice, any relevant inculpatory evidence against the defendant which could be used to prove his guilt will routinely be disclosed as part of the ‘case file’ under G.S. 15A-903(a)(1) anyway, but the issue of undisclosed inculpatory evidence may arise in cases where defendant is presently only charged with one offense, but is also under investigation for another offense.
   3. When Must the Disclosure be Made?
      Ordinarily, material evidence that is favorable to the defense will be promptly disclosed through the normal discovery process, and this is certainly the best practice. See N.C. State Bar Rev’d Rules of Prof’l Conduct, R. 3.8 (d) (prosecutor has duty to make timely disclosure to defense of all evidence that tends to negate guilt or mitigate offense or sentence). However, there may be unavoidable instances when such evidence is not discovered or cannot be produced until later in the case, possibly even after the trial has already begun. A prosecutor’s duty to disclose evidence that is material and favorable to the defense is satisfied as long the material is disclosed in time for the defendant to “make effective use of it at trial.” Therefore, such evidence can even be disclosed during the course of the trial, if necessary, and may still satisfy Brady  requirements. See State v. Elliott, 360 N.C. 400 (2006) (belated disclosure was not reversible error because there is no Brady error if the defendant had sufficient time to use the information to his benefit); State v. Taylor, 344 N.C. 31 (1996) (due process satisfied by disclosure at trial); State v. Jackson, 309 N.C. 26 (1983) (due process satisfied by disclosure at trial); State v. Wilson, 118 N.C. App. 616 (1995) (no constitutional violation when state provided favorable evidence after jury selection); State v. Shedd, 117 N.C. App. 122 (1994) (no Brady violation when state provided evidence at trial); State v. Spivey, 102 N.C. App. 640 (1991) (delay in disclosing exculpatory evidence, prior statement of state’s witness, did not violate defendant’s constitutional rights; statement was introduced at trial and defendant cross-examined witness about it); State v. Lineberger, 100 N.C. App. 307 (1990) (similar ruling; undisclosed information was made available to jury); State v. Harris, 323 N.C. 112 (1988) (court notes that prosecutor’s duty is to disclose materially favorable evidence at trial); State v. Alston, 307 N.C. 321 (1983) (court notes that effect of nondisclosure of materially favorable evidence is on outcome of trial).
   4. Scope and Limits of Prosecutor’s Brady Obligations
      
      1. There is no constitutional duty to disclose evidence when the defendant knows the existence of the evidence. State v. Wise, 326 N.C. 421 (1986) (defendant knew of doctor who had first examined state’s witness, and could have subpoenaed doctor for trial to determine if there was evidence favorable to defendant); State v. Scanlon, 176 N.C. App. 410 (2006).
      2. A prosecutor does not have a constitutional duty to conduct an independent investigation to find exculpatory evidence based solely on a defendant’s suggestion that there may be such evidence. State v. Smith, 337 N.C. 658 (1994) (defendant requested information of possible internal affairs investigation of law enforcement officer who was state’s witness; defendant also requested impeaching information about civilian state’s witness concerning her mental or substance abuse problems; court ruled that state had not suppressed any material evidence in this case and had no duty to look for this evidence); see also United States v. Robinson, 627 F.3d 941 (4th Cir. 2010) (noting that courts “have routinely refused to extend Brady's constructive knowledge doctrine where doing so would . . . require prosecutors to do full interviews and background checks on everyone who touched the case” and stating that “it is one thing to require prosecutors to inquire about whether police have turned up exculpatory or impeachment evidence during their investigation. It is quite another to require them, on pain of a possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working the case.").
         However, more readily available impeachment material (i.e., "Giglio evidence"), such as a substantiated complaint in an officer’s personnel file or a court order, may be discoverable. See Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013) (concluding that prosecutors failed to turn over impeachment evidence about the government’s key witness, a police detective, including court orders from state judges who had taken action against the prosecution in numerous cases because of the detective’s false statements and constitutional violations he committed during interrogations and a personnel record documenting a five-day suspension for accepting sexual favors from a female driver and then lying about it); United States v. Kiszewski, 877 F.2d 210, 216 (2d Cir. 1989) (finding that it was error for trial court to refuse to compel production of the FBI agent’s personnel file for in camera inspection, which contained complaints against the agent, stating that “[i]mpeachment of a witness can make the difference between acquittal and conviction . . . and this is particularly true in a trial for making false declarations, where credibility is the central issue in the case and the evidence presented at trial consists of opposing stories presented by the defendant and government agents.”); see also Jonathan Abel, "Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team," 67 Stan. L. Rev. 743, 749 (2015) (concluding that “personnel files would seem to be within the prosecutor’s constructive knowledge” and explaining: “Unlike the far-flung records of officers' divorce proceedings or high school report cards, the personnel files are official documents relating to the officers' official duties and found within the possession of the prosecution team.”)
      3. The state does not violate a defendant’s due process rights by failing to conduct a test comparing a state witness’s DNA with DNA from hair found on a cap at a crime scene. State v. Ryals, 179 N.C. App. 733 (2006).
      4. A prosecutor does not have to disclose impeachment information about the government’s witnesses before entering into a plea agreement with a defendant. United States v. Ruiz, 536 U.S. 622 (2002).
      5. Knowledge of materially favorable evidence in law enforcement files or known to law enforcement officers is imputed to the prosecutor. Therefore, a constitutional violation can occur even when the prosecutor is unaware of evidence in law enforcement files. Kyles v. Whitley, 514 U.S. 419 (1995); State v. Smith, 337 N.C. 658 (1994); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964).
6. Ethical Duty to Disclose
   Rule 3.8(d) of the North Carolina Rules of Professional Conduct requires a prosecutor “after reasonably diligent inquiry” to “make timely disclosure to the defense of all evidence or information . . . known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.” This ethical duty is broader than the Brady due process standard, since it is not limited by a materiality requirement. North Carolina State Bar v. Brewer, 05 DHC 37 Reprimand at 26, n.9 (April 4, 2008) (citing Richard A. Rosen, "Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger," 65 N.C. L. Rev. 693, 714 (1987)) (noting that to fulfill ethical obligations under modern ethics codes “the prosecutor must disclose all exculpatory evidence . . . whether or not the evidence presented or omitted is important enough, in the context of all of the evidence presented at trial, to warrant a reversal of the conviction”; concluding that “[a]n ethical violation can, and often will, be present even when due process is not violated.”).

Discovery Concerning Post-Trial Motion for Appropriate Relief

G.S. 15A-1415(f) provides that in a case of a defendant who is represented by counsel and has filed a motion for appropriate relief, the state must make available (to the extent allowed by law) to the defendant’s counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The state may, however, submit any portion of its files to a judge for in camera inspection to determine if it would not be in the interest of justice to reveal information to the defendant’s counsel. State v. Atkins, 349 N.C. 62 (1998) (although the state has no work product protection under G.S. 15A 1415(f), a judge may hold an in camera hearing to determine if the state’s evidence should be disclosed - the statutory standard is a “reasonable belief that allowing inspection of any portion of the files by counsel for the . . . defendant would not be in the interest of justice”); State v. Bates, 348 N.C. 29 (1998) (court rejected the state’s argument that the qualifying language in the statute, “to the extent allowed by law,” shielded from discovery the work product of prosecutors and their agents - if the state reasonably believes that allowing inspection of part of a file would not be in the interest of justice, the state may submit that part to the judge to determine if it is subject to discovery).

Discovery Concerning Evidence Subject to DNA Testing and Preservation of Biological Evidence

The defendant has several statutory rights to ensure that DNA or other biological evidence is appropriately preserved and made available for testing. See G.S. 15A-267 (defendant’s access to DNA samples from crime scene); G.S. 15A-268 (preservation of samples of biological materials); G.S. 15A-269 (criminal defendant’s request for post-conviction DNA testing); G.S. 15A-270 (post DNA test procedures); G.S. 15A-270.1 (defendant‘s right to appeal trial court’s denial of motion for DNA testing); State v. Hewson, 220 N.C. App. 117 (2012) (trial court did not err by denying the defendant’s motion under G.S. 15A-269(a) for post-conviction independent DNA testing – rejecting defendant’s theory on why DNA evidence might be relevant, holding “defendant’s contention that he was in close proximity to the victim at some point, even if supported by DNA evidence, does not minimize the significance of or otherwise refute the substantial evidence that defendant fired a gun into occupied property and that the victim suffered fatal gunshot wounds as a result”); State v. Foster, 222 N.C. App. 199 (2012) (no error to deny request for DNA testing where defendant provided no other explanation why DNA testing would be material to his defense).

Continuing Duty to Disclose

Any party who is required to give, or voluntarily elects to give, discovery pursuant to the statutory requirements also has a continuing duty to disclose, and must promptly notify the attorney for the other party of the existence of any additional evidence. G.S. 15A-907. However, the state does not have an affirmative duty to create or continue to develop additional documentation regarding an investigation. See State v. Foushee, 234 N.C. App. 71 (2014) (state did not violate G.S. 15A-903 by failing to obtain and preserve pawn shop surveillance video of alleged transaction; video was never in state’s possession).