Discovery Order

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Discovery Order Powered By Docstoc
					 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
            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
            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
• If no/unsatisfactory response to discovery
  request after seven days, then party can file
• State to make motion for reciprocal
  discovery not later than ten days after its
  disclosure of discovery to D.
    How Do You Get Discovery?


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
• 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, self-
  defense, accident, automatism,
  involuntary intoxication, voluntary
• 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
• 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?

• 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

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

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)

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