Key Concepts

  • The state has a reciprocal right to receive certain discovery materials from the defense.
  • By statute, the state is entitled to withhold some types of information from discovery, such as the identity of a confidential informant or a prosecutor’s work product.
  • A defendant who fails to make a timely discovery motion may waive his rights to receive discovery – and so may a prosecutor who fails to ask for discovery from the defense.

What the State is Entitled to Receive from the Defense Under G.S. 15A-905

If the court grants any relief sought by the defendant under G.S. 15A-903 (defendant’s right to discovery of state’s evidence), or if disclosure is voluntarily made by the state under G.S. 15A-902(a), the court must, upon motion of the state, order the defendant to provide reciprocal discovery to the state regarding the following materials:

  1. Documents and Tangible Objects - G.S. 15A-905(a)
    Order the defendant to permit the state to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the defendant and which the defendant intends to introduce in evidence at the trial.
  2. Reports of Examinations and Tests - G.S. 15A-905(b)
    Order the defendant to permit the state to inspect and copy or photograph the results or reports of physical or mental examinations, or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession and control of the defendant which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial, when the results or reports relate to his or her testimony. In addition, upon motion of the state, the court must order the defendant to permit the state to inspect, examine, and test, subject to appropriate safeguards, any physical evidence or a sample of it available to the defendant if the defendant intends to offer such evidence, or tests or experiments made in connection with such evidence, as an exhibit or evidence in the case.
  3. Notice of Defenses - G.S. 15A-905(c)(1)
    The defendant must give notice to the state of the intent to offer at trial a defense of alibi, duress, entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary intoxication, or voluntary intoxication. The notice of a defense may not be introduced as evidence against the defendant at trial. G.S. 15A-905(c)(1). The notice of defense must be given within 20 working days after the date the case is set for trial pursuant to G.S. 7A-49.4, or such other later time as set by the court.
    1. As to the defense of alibi, the court may order, upon motion by the state, the disclosure of the identity of alibi witnesses no later than two weeks before trial. If disclosure is ordered, upon a showing of good cause, the court must order the state to disclose any rebuttal alibi witnesses no later than one week before trial. If the parties agree, the court may specify different time periods for this exchange so long as the exchange occurs within a reasonable time prior to trial.
    2. As to only the defenses of duress, entrapment, insanity, automatism, or involuntary intoxication, notice by the defendant must contain specific information as to the nature and extent of the defense.

For cases in which G.S. 15A-905(c) is not applicable (for example, defendant did not seek discovery from the state), see G.S. 15A-959(a) for defendant’s required notice to the state concerning the insanity defense or an intention to introduce expert testimony concerning mental disease or defect.

  1. Notice of Expert Witnesses - G.S. 15A-905(c)(2)
    The defendant must give notice to the state of any expert witnesses that the defendant reasonably expects to call as a witness at trial. Each witness must prepare, and the defendant must furnish to the state, a report of the results of the examinations or tests conducted by the expert. The defendant must also furnish to the state the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The defendant must give the notice and furnish the materials within a reasonable time before trial, as specified by the court.
  2. List of Witnesses at Beginning of Jury Selection - G.S. 15A-905(c)(3)
    The defendant must give the state, at the beginning of jury selection, a written list of the names of all other witnesses whom the defendant reasonably expects to call during the trial. Names of witnesses are not subject to disclosure if the defendant 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 that the defendant 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 upon a good faith showing shall allow the witnesses to be called. Additionally, in the interest of justice, the court may in its discretion permit any undisclosed witness to testify.
  3. Defendant’s Prison Records - G.S. 148-76
    The state has the authority under G.S. 148-76 to subpoena a defendant’s prison records. The state supreme court has held that the statute specifically makes the records available to the state; therefore the state does not engage in prosecutorial misconduct by subpoenaing the records. State v. Cummings, 352 N.C. 600 (2000).

Other Records from Third Parties

In addition to statutes which expressly authorize the sharing of information with the prosecution, the prosecution may make a motion to the court for the production of confidential records held by a third party, such as a health care provider, school, or employer. The prosecutor may apply to the court for an order requiring the production of confidential records before the filing of criminal charges, and the court has the inherent authority to order production if it is in the interest of justice. The prosecutor must present, “by affidavit or similar evidence, sufficient facts or circumstances to show reasonable grounds to suspect that a crime has been committed, and that the records sought are likely to bear upon the investigation of that crime.” See In re Superior Court Order, 315 N.C. 378, 381-82 (1986) (prosecution must establish factual basis of need for customer’s bank records; bare allegations of need insufficient). The prosecutor also must show that the interests of justice require disclosure of confidential information. In re Brooks, 143 N.C. App. 601, 611 (2001) (also holding that petition must state statutory grounds regarding disclosure of the records at issue); In re Albemarle Mental Health Center, 42 N.C. App. 292, 299 (1979) (remanding to trial court for determination whether disclosure of mental health records before filing of charges was necessary to proper administration of justice “such that the shield provided by G.S. 8-53.3 [psychologist-patient privilege] should be withdrawn”). The cases suggest additional restrictions on this procedure. Because a motion for production of records before the filing of charges is a special proceeding, it must be heard in superior court. See Brooks, 143 N.C. App. 601, 609; Albemarle Mental Health Center, 41 N.C. App. 292, 296 (“The superior court is the proper trial division for an extraordinary proceeding of this nature.”). Because there is no pending case and no opposing party, the action may be filed ex parte unless notice is required by federal or state statutes regulating the records. If charges are brought, the defendant would be entitled to discovery of records obtained by the state because they are part of the state’s files in the case.

After charges have been brought, a prosecutor also may file a motion for an order compelling production of confidential records from a third party. As with defense motions for the production of records from a third party, the motion may be heard in district court if the case is then pending in district court or, if the case is a felony, potentially in superior court whether or not the case is then pending in superior court. See State v. Jones, 133 N.C. App. 448, 463 (1999) (before transfer of felony case to superior court, district court has jurisdiction to rule on preliminary matters, in this instance, production of certain medical records), aff’d in part and rev’d in part on other grounds, 353 N.C. 159 (2000); State v. Rich, 132 N.C. App. 440, 451 (1999) (once case was in superior court, district court should not have entered order overriding doctor-patient privilege; district court’s entry of order compelling disclosure was not prejudicial, however), aff’d on other grounds, 351 N.C. 386 (2000); State v. Jackson, 77 N.C. App. 491, 496 (1985) (superior court had jurisdiction before indictment to enter order to determine defendant’s capacity to stand trial because G.S. 7A-271 gives superior court exclusive, original jurisdiction over criminal actions in which a felony is charged).

A subpoena is generally insufficient to authorize disclosure of confidential records. While a subpoena requires a custodian of records to produce the records, most confidentiality statutes require a court order overriding the interest in confidentiality before a custodian may disclose the contents. See, e.g., G.S. 8-53 (court must find disclosure necessary to proper administration of justice to override physician-patient privilege); State v. Cummings, 352 N.C. 600, 611 (2000) (prison disclosed defendant’s prison records in response to subpoena by prosecutor; court finds that terms of G.S. 148-76 permitted prison to make records available to prosecution in this manner).

Once a case is pending, a prosecutor ordinarily would not appear to have grounds to apply ex parte for a court order to compel production of records. The defendant, as a party to the proceeding, would have to be given notice.

Information That is Not Subject to Disclosure by Defendant

Except as otherwise directed by G.S. 15A-905, the defendant is not required to disclose reports, memoranda, or other internal documents made in connection with the investigation or defense of the case, including statements of the defendant or witnesses. G.S. 15A-906.

However, when a defendant files a motion for appropriate relief alleging ineffective assistance of counsel, the defendant shall be deemed to have waived attorney-client privilege with respect to any written or oral communications with his or her attorney, to the extent that defense counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver is automatic upon filing of the motion, and requires no further order from the court. G.S. 15A-1415(e).

Information That is Not Subject to Disclosure by State

Under G.S. 15A-904, the state is not required to disclose written materials drafted by the prosecuting attorney or the prosecuting attorney’s legal staff for their own use at trial, including witness examinations, voir dire questions, opening statements, and closing arguments. Disclosure is also not required of legal research or records, correspondence, reports, memoranda, or trial preparation interview notes prepared by the prosecuting attorney or by members of the prosecuting attorney’s legal staff to the extent they contain the opinions, theories, strategies, or conclusions of the prosecuting attorney or the prosecuting attorney's legal staff. G.S. 15A-904(a).

The state is not required to disclose the identity of a confidential informant unless the disclosure is "otherwise required by law." G.S. 15A-904(a1); see Roviaro v. United States, 353 U.S. 53 (1957); State v. Dark, 204 N.C. App. 591 (2010) (“before the courts should even begin the balancing of competing interests which Roviaro envisions, a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure”; quoting State v. Watson, 303 N.C. 533, 537 (1981)). For more information on determining whether an informant's identity must be revealed, see Jeff Welty, "The Informer's Privilege," N.C. Criminal Law Blog, June 17, 2010.

The state is not required to disclose the identity of any person who provides information about a crime to a Crime Stoppers organization (as defined in the statute) under assurance of anonymity unless ordered by the court. G.S. 15A-904(a3). Nor is the state required to disclose personal identifying information of any witness other than name, address, date of birth, and published phone number, unless ordered by the court upon a defense motion. G.S. 15A-904(a2). The state is also not required to disclose a Victim Impact Statement in a case—defined as the document submitted by the victim or family to the state pursuant to the Victims’ Rights Amendment—unless otherwise required by law. G.S. 15A-904(a4).

Waiver of Discovery Rights

A party (the defendant or the state) waives pretrial statutory rights to discovery if the party fails to seek timely discovery pursuant to G.S. 15A-902. State v. Anderson, 303 N.C. 185 (1982). A district attorney’s open-file discovery policy does not grant a defendant a standing motion for discovery. To preserve a defendant’s discovery rights, a defendant must still make a motion for discovery. State v. Reeves, 343 N.C. 111 (1996); see State v. Flint, 199 N.C. App. 709 (2009) (trial court did not abuse its discretion in denying the defendant’s motion to continue, alleging that the defendant did not receive discovery at a reasonable time before trial, when the defendant never made a motion for discovery and there was no written discovery agreement and thus the state was not required to provide discovery pursuant to G.S. 15A-903(a)(1)). However, even if a party has waived discovery by failing to make a timely request, the court may choose allow a later motion for discovery made "at any time" before trial "if the judge for good cause shown determines that the motion should be allowed in whole or in part." G.S. 15A-902(f).

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume I, Chapter 4.