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DISCOVERY

Understand the legal requirements for law enforcement to preserve and turn over all relevant evidence to the prosecutor's office. Learn about statutory discovery, Brady material, and the consequences of non-compliance.

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DISCOVERY

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  1. DISCOVERY WHAT THE LAW REQUIRES YOU TO PRESERVE AND TURN OVER

  2. QUESTION: ANSWER: EVERYTHING!! What should law enforcement give the prosecutor’s office?

  3. WHAT MUST TO BE TURNED OVER? • Statutory Discovery • Everything • Brady Material • Exculpatory • Giglio • Impeachment • Kyles v Whitley • Reasonably Diligent Inquiry

  4. BRADY MATERIAL • Material that exculpates the suspect • He didn’t do it. • Someone else did it. • He wasn’t there • He wasn’t the shooter • Material that is favorable to the suspect, but may not exculpate.

  5. BRADY MATERIAL • Anything good for the suspect • Anything that suggests the suspect did not commit the crime • Anything that reduces the suspect’s culpability • Anything that reduces a prosecution witness’s credibility

  6. THE LAW REQUIRES • Misidentifications • Non-identifications • Witness Statements • I wasn’t there! • I wasn’t looking! • I didn’t see anything! • EVERYTHING

  7. THE LAW REQUIRES • ALL Pre-trial witness Statements • Multiple versions of an event • Inconsistencies

  8. THE LAW REQUIRES • Things you do to gain cooperation and trust from a witness. • Payments to the witness • Payments to the witness’s family • Consideration for a witness’ pending case –lower bail, delay arrest. • Promises made to the witness or the witness’ family • Relocation • Jobs

  9. WRITTEN OR ORAL No difference between oral or written material Both must be turned over

  10. CONSEQUENCES Question: If law enforcement doesn’t turn over everything, what are the consequences? Answer: NCGS 15A-903 (d) and 15A- 910

  11. NCGS 15A-903 (d) Any person who willfully omits or misrepresents evidence or information required to be disclosed or provided to the prosecutor’s office shall be guilty • Class H felony or • Class 1 Misdemeanor

  12. NCGS 15A-910 The court in addition to exercising its contemptpowers may: • Order the discovery or inspection • Grant a continuance or recess • Prohibit party from introducing evidence not disclosed • Declare a mistrial • Dismiss the charge, with or without prejudice • Enter other appropriate orders

  13. DISCOVERY IS YOUR JOB • Failure to preserve things you should keep fuels defense speculation that exculpatory material exists when it doesn’t. • The courts, defense and juries can speculate • That paperwork was harmful to your case • That you destroyed it on purpose.

  14. DISCOVERY IS YOUR JOB • If you are the case detective, don’t just get your own paper work… get everyone else’s who worked on that case. • If you don’t do your job • It is going to come out in court • You will be embarrassed • It will look like you are hiding something • Cross Examination will be much worse • Guilty people may walk

  15. WRITTEN AND RECORDED

  16. WRITTEN AND RECORDED • Recorded statements: MP3 player, video recording, audio recording

  17. STATUTORY DISCOVERY • Upon arrest of a person, with or without a warrant . . . a LEO: • Must make available to the State on a timely basis all materials and information acquired in the course of all felony investigations. • This responsibility is a continuing affirmative duty. • You MUST turn over EVERYTHING • You MUST CONTINUE to turn over EVERYTHING

  18. STATUTORY DISCOVERY • Complete file of ALL law enforcement • Defendant Statements • Co-Defendants Statements • Witness Statements • ALL Officer Notes • Test Results and Examinations Including: • ALL other data, calculations or writings • Preliminary test, screening results and bench notes • Any Other Matter Of Evidence Obtained

  19. TEXTS AND EMAILS • Emails and texts to friends, family could be discoverable • Emails and texts to prosecutors and other officers may be discoverable • Emails and texts to witnesses are discoverable

  20. INTERNET • Be careful of personal use of social media/blogs/YouTube • Defense attorney will check

  21. YOUR PERSONAL FILE • NCGS 160A-168 a generally protects disclosure of your personnel materials BUT • The defense can get it

  22. EVERYTHING MEANS EVERYTHING

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