Transcript The New Criminal Discovery Rules

The New Criminal
Discovery Rules
James P. Cooney III
Frank R. Parrish
Ripley Rand
Conference of Superior Court
Judges – November 2004
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
Statutes Affected
N.C. Gen. Stat. § 15A-902 through -910
N.C. Gen. Stat. § 15A-959
N.C. Gen. Stat. § 15A-501
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.”
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”
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.
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
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
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
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.
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.
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.
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?
Defendant’s Responsibilities
• D must give notice of defenses: alibi,
duress, entrapment, insanity, mental
infirmity, diminished capacity, selfdefense, 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
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.
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?
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
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
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)