The DA’s Office in Charlotte, seeking transparency in issues involving disclosure of exculpatory Brady vs Maryland evidence, has a formal, written policy setting forth the materials covered, the methodology of review, and the release of evidence in criminal charges.
Discovery of materials pursuant to a Motion for Discovery are also subject to the NC criminal laws, specifically N.C.G.S. 15A-901. There is no traditional, common law right to discovery in North Carolina.
While the General Statutes have been amended to reflect what might best be described as Open File Discovery for matters in Superior Court, there remains no traditional right to Discovery in district court criminal charges in NC.
The constitutional precepts addressed in Brady and Giglio mandate voluntary disclosure of exculpatory evidence even in the event discovery is not required.
In Camera Review / Protective Orders:The District Attorney’s Office may submit a memorandum approved by the Brady / Giglio Committee detailing potential Brady / Giglio evidence to a judge for in camera review to determine whether disclosure to the defense is required. (U.S. v. Agurs, supra, 427 U.S. at p. 106; U.S. v. Dupuy (9th Cir. 1985) 760 F2d 1492, 1502.)
Please note that we are turning over a memo, not the file. The file does not belong to this office and is not discoverable as it was not part of “the investigation of the crimes committed” as described in N.C.G.S. §15A-903).
The option of submitting the Brady material for in camera review should be considered in all cases, in consultation with the Brady / Giglio Committee. In cases where the memorialized conduct would only be Brady / Giglio material under a narrow fact pattern, the ADA should consider requesting a protective order, limiting or prohibiting the disclosure of the material in other cases.
If a memorandum approved by the Brady / Giglio Committee detailing material regarding the credibility of a law enforcement employee is disclosed to the defendant pursuant to this policy, the assigned ADA shall provide the Committee with a copy of the material ordered by the judge to be disclosed.
The Committee chair shall then include this material in the administrative file maintained for that law enforcement employee, unless the court has made a limiting order regarding disclosure of the material. In addition, a copy of the material ordered disclosed would also become part of the case file for the particular case in which disclosure was ordered.
There will be times when the court or counsel are not satisfied with the memo we provide. In those cases the defendant may demand the officer’s I/A file to ensure we have complied with Brady / Giglio. The District Attorney’s Office is not in possession of those files, nor are those files part of the investigative file.
Therefore, the correct course of action would be for defense counsel to file a motion with the Court requesting access to those files. The police agency in possession of the files should be notified by the defense and a hearing scheduled.
The ADA will likely need to inform the Court and counsel that a subpoena is legally insufficient and the moving party must have a legally sufficient basis. “[A]t a minimum, an ex parte petition submitted pursuant to section 160A-168(c)(4) should be accompanied by sworn affidavit(s) or similar evidence, including specific factual allegations detailing reasons justifying disclosure.
The petition should further state the statutory grounds which allow disclosure.” In the Matter of Brooks, 548 S.E. 2d 748, 755 (2001).
Timing of Disclosure Information subject to disclosure under the Brady / Giglio policy shall be disclosed prior to trial. It is not contemplated within this policy that impeachment material must be turned over prior to a guilty plea. The rights created under Brady / Giglio are “fair trial” rights.
“Brady requires a prosecutor to disclose exculpatory evidence for purposes of ensuring a fair trial, a concern that is absent when a defendant waives trial and pleads guilty." U.S. v. Zacarias Moussaoui, 591 F.3d 263, 285, 2010 U.S. App. LEXIS 43 (2010).
The United States Supreme Court addressed this issue, holding “We must decide whether the Constitution requires that preguilty plea disclosure of impeachment information. We conclude that it does not.” United States v. Ruiz, 536 U.S. 622, 629 (2002).
Therefore, information subject to disclosure under this policy shall be given to the defendant after the Pre- Trial Readiness Conference but before trial. ADAs should make every effort to disclose the information sufficiently in advance of trial to avoid unfair prejudice to the defendant.