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

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

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
You must even turn over the notes you write on your hand

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 contempt powers 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 S
s and texts to friends, family could be discoverable
s and texts to prosecutors and other officers may be discoverable
s 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
If your file personnel file contains Giglio materials (example untruthfulness and give other example)

22. EVERYTHING
MEANS EVERYTHING