119.3Discovery Procedures

Prosecutors’ Discovery Obligations

In addition to the basic discovery requirements and obligations set forth by statute and case precedent, which are discussed in the preceding sections, prosecutors must also be aware of and abide by the following directives:

1. Timely Disclosure of Discovery

Pursuant to Rule of Professional Conduct 3.8, the prosecutor in a criminal case shall:

(d) after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.]

Comment to Rule 3.8:

[4]        Every prosecutor should be aware of the discovery requirements established by statutory law and case law. See, e.g., N.C. Gen. Stat. §15A-903 et. seq, Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. U.S., 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419 (1995). The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

A prosecutor’s ethical duty under Rule 3.8(d) is broader than the Brady due process standard because it does not include 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.”).

2. Prohibition Against the Use of False Testimony or Evidence
   When a prosecutor uses false testimony (or evidence), a conviction must be set aside if there is any reasonable likelihood that the false testimony (or evidence) could have affected the verdict. This standard applies not only when a prosecutor knowingly uses false testimony or evidence, but also when a prosecutor allows false testimony or evidence to go uncorrected (even though the prosecutor did not solicit the testimony or evidence). It may even apply under some circumstances when the trial prosecutor is unaware that the testimony is false (for example, if the trial prosecutor did not know of a promise of leniency made to the witness by a previous prosecutor). See Mooney v. Holohan, 294 U.S. 103 (1935); Napue v. Illinois, 360 U.S. 264 (1959); Giglio v. United States, 405 U.S. 150 (1972); but see State v. Phillips, 365 N.C. 103 (2011) (even if state’s witness perjured herself, there was no indication that the state knew her testimony was false); State v. Sanders, 327 N.C. 319 (1990) (defendant failed to establish that false testimony of witness was material or that prosecutor knew it was false and intentionally used it to defendant’s prejudice).
3. Prosecutors’ Instructions to Witnesses About Talking to Defense Counsel
   A prosecutor may not affirmatively instruct a witness that the witness should not cooperate with the defense. However, the state is not required to compel its witnesses to submit to an interview with defense counsel either, and the state may inform witnesses that they are not required to talk with defense counsel. State v. Pinch, 306 N.C. 1 (1982); State v. Taylor, 178 N.C. App. 395 (2006) (trial judge did not err in denying the defendant’s motion to require a law enforcement officer who investigated the case to submit to an interview by defense counsel; district attorney’s office had not advised the officer that he was prohibited from meeting with defense counsel, the officer decided not to submit to an interview on his own).

Law Enforcement Agencies’ Discovery Obligations

1. Duty to Provide Evidence to Prosecutor’s Office (and Criminal Offenses for Willfully Failing to Comply)
   G.S. 15A-903(c) requires that law enforcement and investigatory agencies must on a timely basis make available to the prosecutor’s office a full copy of their complete files for compliance with G.S. 15A-903 and G.S. 902(a). Investigatory agencies that obtain information and materials listed in G.S. 903(a)(1) must ensure that they are fully disclosed to the prosecutor’s office in a timely manner for disclosure to the defendant. G.S. 15A-903(d) makes it (1) a Class H felony for a person to willfully omit or misrepresent evidence or information required to be disclosed under G.S. 15A-903(a)(1) or required to be provided to the state under G.S. 15A-903(c); and (2) a Class 1 misdemeanor to willfully omit or misrepresent evidence or information required to be disclosed pursuant to any other provision of “this section” (meaning G.S. 15A-903).
2. Loss or Destruction of Evidence
   A due process violation does not occur unless an officer acts in bad faith in failing to preserve potentially useful evidence for trial. See Illinois v. Fisher, 540 U.S. 544 (2004); Arizona v. Youngblood, 488 U.S. 51 (1988); State v. Lewis, 365 N.C. 488 (2012) (in absence of allegation that evidence was destroyed in bad faith, state’s failure to preserve knife for defendant’s retrial did not violate defendant’s right to due process); State v. Banks, 125 N.C. App. 681 (1997) (accidental destruction of rape kit by police was not due process violation); State v. Graham, 118 N.C. App. 231 (1995) (inadvertent destruction of rape kit did not violate defendant’s due process rights); State v. Drdak, 330 N.C. 587 (1992) (destruction of blood sample by hospital prior to defendant’s arrest did not violate defendant’s rights); State v. Mlo, 335 N.C. 353 (1994) (release of impounded vehicle without district attorney’s approval in violation of G.S. 15-11 did not warrant dismissal of murder charges where exculpatory value of comparing vehicle’s tires to tracks at the location where the body was discovered was speculative and there was no bad faith on part of police); State v. Anderson, 57 N.C. App. 602 (1982) (destruction of large amount of marijuana, while keeping random samples, was done in good faith); State v. Hudson, 56 N.C. App. 172 (1982) (police destruction of paper towels, on which tests had been performed, was inadvertent; if defendant had made timely motion to examine towels, he would have had opportunity to have independent analysis done).
   However, willful destruction of material evidence or failure to preserve material evidence may be deemed a violation of defendant’s rights and result in suppression of evidence, dismissal of charges, or reversal on appeal. See State v. Williams, 362 N.C. 628 (2008) (trial judge properly dismissed a charge of felony assault on a government officer when defendant established that state flagrantly violated his constitutional rights and irreparably prejudiced preparation of his defense when state willfully destroyed material evidence favorable to the defense – the destroyed evidence consisted of two photographs of defendant that were displayed in prosecutor’s office, one taken of defendant before the events in question, another taken after the events in question). Also note that a custodial agency under certain circumstances has a statutory duty to preserve biological evidence pursuant to G.S. 15A-268. See the related entry on Custody of Evidence at Trial and Disposition After Trial.
3. Crime Scene Preservation and Access
   In most cases it is impossible for law enforcement to preserve the crime scene indefinitely; instead, it may be documented or recorded as part of the investigation and then unsealed. Unlike the federal rules of discovery, G.S. 15A-903 does not include physical locations and buildings among the “tangible objects” subject to discovery by the defense: “Had our Legislature intended for ‘buildings or places’ to be included in the statute, it would have said so in the same words utilized in the federal statute. Thus, defendant is not entitled, under the terms of G.S. 15A–903(d), to inspect the crime scene.” State v. Brown, 306 N.C. 151 (1982). Nevertheless, note that under the particular circumstances of Brown, where the police did secure the crime scene for an extended period (including up to the time of trial), and the state relied heavily upon evidence from the crime scene, and the nature of the defendant’s defense related to potential crime scene evidence, the court held that it was a violation of due process to deny pretrial inspection of crime scene to defendant’s counsel. Id.

Judge’s Authority to Order and Regulate Discovery

1. Pretrial Discovery
   When a statute expressly prohibits pretrial discovery of particular evidence (for example, G.S. 15A-904), the judge has no "inherent authority" to order its disclosure. State v. Hardy, 293 N.C. 105, 125 (1977). When discovery is neither prohibited nor required under the statutes, the judge may have the inherent authority to order disclosure, but the extent of that authority has not yet been clearly defined by the North Carolina Supreme Court. See State v. Hardy, 293 N.C. 105, 124 (1977) ("the absence of discovery as a matter of right does not necessarily preclude the trial judge from ordering discovery in his discretion").
2. Psychiatric or Physical Evaluation of State’s Witness/Victim
   A judge does not have either the inherent or statutory authority to order psychiatric or physical evaluation of a witness. State v. Horn, 337 N.C. 449 (1994); but see State v. Hewitt, 93 N.C. App. 1 (1989) (noting that the possibility of a second examination of victim conducted at defendant’s request should not be “absolutely foreclosed,” but defendant failed to make a sufficient showing in this case). The court noted in Horn, however, that the trial judge has several alternatives to ordering the victim to submit to an examination. The defendant may employ (or if indigent, be appointed) a mental health expert to interpret and to dispute the findings of psychological evaluations already performed on the victim. Or the judge may deny the admission of the state’s proffered psychological evidence showing the victim’s mentally deficient status. Further, the judge may consider dismissing the case against the defendant if the defendant’s right to adequately present a defense is imperiled. See State v. Clontz, 305 N.C. 116 (1982); State v. Liles, 324 N.C. 529 (1989); State v. Fletcher, 322 N.C. 415 (1988); State v. Joyce, 97 N.C. App. 464 (1990).
3. State’s Request for Mental Examination of Defendant who has Asserted Insanity Defense or Diminished Capacity Defense
   A judge does have the inherent authority to order the mental examination of a defendant by a state’s expert when the defendant has asserted an insanity defense or diminished capacity defense. State v. Huff, 325 N.C. 1 (1989); State v. Clark, 128 N.C. App. 87 (1997).
4. Discovery During Trial or Sentencing Hearing (State and Defendant)
   A trial judge has somewhat broader inherent authority during trial or a sentencing hearing to order the disclosure of evidence that otherwise would not be required during pretrial discovery per G.S. 15A-904 and 15A-906. State v Hardy, 293 N.C. 105 (1977). See also United States v. Nobles, 422 U.S. 225 (1975) (trial judge did not err by requiring disclosure of defense investigator's reports of interviews with government’s witnesses, at the conclusion of his testimony, as a condition of allowing investigator to testify for defense at trial about those interviews). Similarly, the trial judge has the inherent authority under certain circumstances (such as when the testifying expert relied in part on a non-testifying expert's work) to order the discovery at trial or at a sentencing hearing of a nontestifying psychologist’s report that is not subject to statutory discovery. State v. Warren, 347 N.C. 309 (1997). For other cases involving the state’s access to a defense expert’s notes, test data, etc., see State v. Miller, 357 N.C. 583 (2003); State v. Atkins, 349 N.C. 62 (1998); State v. McCarver, 341 N.C. 364 (1995).
5. Protective Orders: G.S. 15A-908
   A party may apply to the court for an ex parte protective order that discovery or inspection be denied or restricted, based upon a showing of good cause such as (but not limited to) a risk of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment. The court may receive affidavits or statements for in camera review in support of the motion, and if granted, the submitted materials shall be sealed and preserved for potential appellate review. See State v. Cooper, 229 N.C. App. 442 (2013) (trial court allowed state to withhold particular law enforcement technique used for computer analysis on national security grounds – reversed and remanded for new trial; no materials were received in camera and preserved, and appellate court had no way to review basis of trial court’s decision). If an ex parte order is granted, the opposing party shall receive notice that the order was entered, but without disclosure of the subject matter of the order.
6. Trial Judge’s Role in Determining Duty to Disclose
   Whether evidence is material and favorable to the defense may be determined by appellate review or by the trial judge who must order an in camera inspection of the undisclosed evidence when a specific request is made at trial for disclosure of evidence in the prosecutor’s possession that is relevant, competent, and not privileged. State v. Hardy, 293 N.C. 105, 127-128 (1977); Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (defendant has no right to examine confidential youth services files to look for exculpatory material; instead, trial judge must make in camera inspection of files and provide defendant with exculpatory material); State v. Hunt, 339 N.C. 622 (1995) (judge did not conduct in camera inspection of SBI report; but court ruled that there was no error in this case, when state had provided witness statements from report and defendant failed to establish that any evidence not disclosed from SBI report was material); State v. Bailey, 89 N.C. App. 212 (1988) (trial judge made proper in camera inspection of social services records); State v. Kelly, 118 N.C. App. 589 (1995) (judge erred in failing to conduct in camera review as required by prior court order); State v. Johnson, 165 N.C. App. 854 (2004) (trial judge in statutory sexual offense case erred in conducting in camera review of county department of social services file concerning alleged victim by failing to disclose materially exculpatory evidence to defendant); State v. Chavis, 141 N.C. App. 553, 561 (2003) (recognizing right to impeachment information that may be in mental health records of witness, but finding that record did not show that state had information in its possession or that information was favorable to defendant); State v. Thompson, 139 N.C. App. 299, 306-07 (2000) (finding that trial court did not err in failing to conduct in camera review of victim’s medical records when defense counsel conceded that he was not specifically aware of any exculpatory information in the records); State v. Jarrett, 137 N.C. App. 256, 266-67 (2000) (trial court reviewed hospital records and disclosed some and withheld others; appellate court reviewed remaining records, which were sealed for appellate review, and found they did not contain favorable, material evidence).

In order to warrant an in camera inspection of potential discovery material, a defendant must demonstrate that the evidence sought to be disclosed might be materially favorable to his or her defense; State v. Thompson, 139 N.C. App. 299 (2000); citing State v. Phillips, 328 N.C. 1 (1991). In Thompson, the court noted that although it might be a circular impossibility to ask a defendant to affirmatively establish that evidence not in his or her possession is material, a trial judge may require a defendant to at least have a substantial basis for believing such evidence is material; otherwise, the court added, a defendant would be able to waste the time and resources of the judicial system by “forcing unwarranted fishing expeditions.” Id. See also footnote 15 of the court’s opinion in Pennsylvania v. Ritchie, cited above, and compare with State v. Hardy, cited above; State v. Soyars, 332 N.C. 47 (1992) (trial judge did not err in denying in camera request, based on facts in this case); State v. Hunt, 339 N.C. 622 (1995) (similar ruling).

Sanctions for Failing to Comply with Statutory Discovery Rules: G.S. 15A-910

If the prosecutor or the defense fails to comply with discovery statutes or an order issued pursuant to them, the judge may, in addition to exercising contempt powers, impose any of the sanctions listed in G.S. 15A-910 (e.g., order disclosure, grant a continuance, prohibit introduction of evidence, declare a mistrial, dismiss charges) but the judge is not required to impose any sanction. See State v. Aguilar-Ocampo, 219 N.C. App. 417 (2012) (state failed to give proper notice of expert translator, but it was not error for court to decline to exclude the evidence); State v. Pender, 218 N.C. App. 233 (2012) (trial court did not abuse its discretion by denying the defendant’s motion for a mistrial on grounds that the state failed to provide the defendant with additional discovery after a meeting with co-defendant gleaned new information – court granted a recess and instructed defense to uncover any discrepancies in testimony through cross-examination); State v. Lane, 365 N.C. 7 (2011) (trial court did not abuse its discretion by excluding expert testimony by a neuropharmacologist and research scientist on grounds that the expert’s report provided to the state was insufficient to satisfy the discovery rules, and repeated requests were made by the state for the report and the trial court had ordered production); see also State v. Ellis, 205 N.C. App. 650 (2010); State v. Remley, 201 N.C. App. 146 (2009); State v. McDonald, 191 N.C. App. 782 (2008); State v. Cook, 362 N.C. 285 (2008); State v. Gillespie, 362 N.C. 150 (2008); State v. Moncree, 188 N.C. App. 221 (2008); State v. Leyva, 181 N.C. App. 491 (2007); State v. Taylor, 311 N.C. 266 (1984); State v. King, 311 N.C. 603 (1984); State v. McClintick, 315 N.C. 649 (1986).

If a court does impose a sanction, it must make specific findings justifying the sanction. A party aggrieved by a failure to disclose cannot properly contend that trial judge abused his or her discretion in not imposing a sanction if the party does not inform the court of some potential unfair surprise. State v. Alston, 307 N.C. 321 (1983). In determining whether to impose personal sanctions for untimely disclosure of law enforcement and investigatory agencies’ files, courts and state agencies must presume that prosecutor attorneys and their staffs have acted in good faith if they have made a reasonably diligent inquiry of those agencies under G.S. 15A-903(c) and disclosed the responsive materials.

Sanctions may also constitutionally be imposed on a defendant for failing to comply with discovery to the state. Taylor v. Illinois, 484 U.S. 400 (1988) (barring defense witness from testifying because defense attorney failed to timely notify state of prospective witness); United States v. Nobles, 422 U.S. 225 (1975) (prohibiting defense investigator from testifying at trial when defendant refused to permit in camera inspection of investigator’s report of interviews with state’s witnesses).