The New Criminal Discovery Rules

1. The New CriminalDiscovery Rules James P. Cooney III Frank R. Parrish Ripley Rand Conference of Superior Court Judges – November 2004

2. Senate Bill 52 • Signed into law August 16, 2004; effective for all cases set for trial/all new cases as of October 1, 2004 • Applies to Superior Court cases only • Applies to felony (and attached misdemeanor) cases

3. Statutes Affected N.C. Gen. Stat. § 15A-902 through -910 N.C. Gen. Stat. § 15A-959 N.C. Gen. Stat. § 15A-501

4. What Is Discovery? N.C. Gen. Stat. § 15A-903 increases the scope of “historical” criminal discovery: “the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant.”

5. What Is Discovery? Now: The historical “open file” policy: D’s statements (written/oral) co-D’s statements (written/oral) witness statements (written/oral) reports and notes from LE agencies*/officers results of tests and examinations expert witness information (CV, opinion and supporting materials, etc.) “any other matter or evidence obtained during the investigation of the offenses alleged to have been committed”

6. What Is Discovery? • Both sides have continuing affirmative duty to disclose once discovery rules apply to case. • And new § 15A-501(6): Law enforcement has continuing affirmative duty upon arrest of Defendant to make available to DA all materials and information acquired in the course of all felony investigations of D.

7. What Is Not Discovery? N.C. Gen. Stat. § 15A-904: • State’s written materials to use at trial • Legal research, memos, interview notes for trial preparation, etc. • Key: “opinions, theories, strategies, conclusions” of State or legal staff • BUT nothing in 904 affects State’s duty to comply with constitutional disclosure requirements

8. Discovery: Issues • DSS/Child Sex Abuse/Medical Records (Ritchie, HIPAA) • Victim/Witness Impact Statements • Victim/Witness Contact Information • Social Security Numbers/Identity or Other Personal Information • LEO’s Prior Use of (Confidential) Informant in Drug Cases • Crimestoppers Information

9. How Do You Get Discovery? • 15A-902: Parties may waive requests/motions and agree in writing to accomplish discovery voluntarily; if discovery voluntarily made, deemed to have been ordered by court. • Request for discovery from D or voluntary agreement triggers application of the rules. • Timing [15A-902(d)]: Defendant makes request for voluntary discovery not later than ten working days after PC hearing / waiver of PC hearing / indictment / appointment of lawyer

10. How Do You Get Discovery? • Party must first make written request for voluntary discovery before filing motion. • Responding party has seven days after request to respond before motion can be filed. • If no/unsatisfactory response to discovery request after seven days, then party can file motion. • State to make motion for reciprocal discovery not later than ten days after its disclosure of discovery to D.

11. How Do You Get Discovery? BUT: Motion for discovery may be made by either side at any time prior to trial if parties stipulate, or if judge finds good cause to hear it at times other than those provided for in the new rules.

12. Parties’ Responsibilities If there has been any discovery provided pursuant to these rules: • Both sides must provide witness lists prior to jury selection • BUT court may allow unlisted witnesses to testify where good cause shown (discretionary) • Both sides have to give up results of all examinations and tests; expert opinions and bases for those opinions.

13. Defendant’s Responsibilities • If Court allows D to get discovery, then Court must allow State’s motion for reciprocal discovery • If D never makes request for discovery, then new rules do not apply. Make inquiry for the record. • Waiver of post-conviction/appeal rights if D doesn’t file discovery motions?

14. Defendant’s Responsibilities • D must give notice of defenses: alibi, duress, entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary intoxication, voluntary intoxication • Notice of defense is inadmissible • Notice must be given in reasonable time before trial (or within 20 days of case going on trial calendar) – § 15A-959

15. Defendant’s Responsibilities • Alibi (15A-905): upon motion by the State, Court may order D to disclose alibi witnesses (no later than to two weeks before the trial); if D’s alibi witnesses are ordered disclosed, court shall order disclosure of State’s rebuttal alibi witnesses for good cause shown (no later than one week before trial). • Duress, Entrapment, Automatism, Insanity, Involuntary Intoxication (15A-905): D’s notice of defense shall contain specific information as to nature and extent of defense.

16. Protective Orders • 15A-908 - Either side may move ex parte that discovery be denied, restricted, or deferred - for good cause shown (risk to witnesses, etc.) • If protective order is granted, then other side gets notice of the entry of the protective order, but not about the subject matter of the order (motion, etc., to be placed under seal in the court file) • Consent protective orders?

17. Sanctions • 15A-910: For sanctioning failure to comply, court must determine: (1) materiality of subject matter (2) totality of the circumstances surrounding failure to comply before entering sanctions against party

18. Sanctions Court has discretion to order any of these: • Order party to permit discovery • Grant continuance or recess • Prohibit party from introducing evidence not disclosed • Mistrial • Dismiss charge with/without prejudice • Other appropriate Orders • Contempt power may also be used

19. Sanctions Court may exercise discretion to impose sanctions both when party fails to comply with discovery order and when party fails to comply with written voluntary discovery agreement - see 15A-902(b)