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Disclosure of Exculpatory Evidence in Charlotte NC

The State of North Carolina (through the prosecutors) is required to turn over certain types of evidence to the accused (the Defendant in NC).  Criminal lawyers in Charlotte, and other attorneys throughout the state, often refer to that as Giglio or exculpatory Brady material. 

Both Brady and Giglio, and the associated release of documentation, are related to one another, at least in part.  Neither is strictly what may you think of as a Motion for Discovery or N.C.G.S. 15A-903, the NC discovery law.Motion for Discovery

It’s more than that.  Prosecutors have enhanced duties to provide certain materials pursuant to ethical responsibilities and constitutional precepts.

With no insult intended, especially with regard the Charlotte prosecutors who have consistently proceeded in good faith for more than 20 years, that has not always been the case throughout North Carolina.

Unfortunately, quite the opposite has all too often been true in North Carolina.  Too many people have been wrongfully convicted of serious criminal charges in North Carolina due to prosecutorial misconduct.

Put simply, it can be a complicated interplay of state and federal laws.  If you have questions about your criminal charges or what to do if you’re arrested, the lawyers at the Powers Law Firm PA are available for legal representation on felony or misdemeanor charges in Charlotte.

The following materials are presented as legal reference maters.  The contents below, edited in part, were prepared by the Office of the District Attorney for the 26th Judicial District of North Carolina.

This criminal defense blog does not comment on the accuracy of such materials or their full compliance with the criminal laws.  We do commend the State (the DA’s Office in Charlotte) for their desire, and clearly substantial efforts, to zealously and ethically prosecute matters in Charlotte, Huntersville, Pineville, Matthews, Cornelius, and Davidson.

To the knowledge of our defense attorneys in Charlotte NC, this is the first such District Attorney’s Office in NC to proceed in such fashion.  It is our sincere hope other DA offices in North Carolina follow suit.

We also hope, going forward, the State will update the policy on a regular basis.

A new era of transparency has begun in the criminal prosecution of matters in Charlotte NC.  Our criminal attorneys applaud the effort.  We look forward to working through these issues with our worthy opposing counsel. Kudos y’all!

Mecklenburg County District Attorney’s Office PROCEDURE FOR DISCLOSURE OF BRADY / GIGLIO MATERIAL ISSUED (edited from original content):

We, as prosecutors, have a constitutional obligation to disclose to a defendant, in a criminal case, evidence favorable to that defendant. Brady v. Maryland, 373 U.S. 83 (1963). “Favorable evidence” includes evidence that is exculpatory as well as information that could be used to impeach the testimony of a prosecution witness. Giglio v. U.S., 405 U.S. 150 (1972).

Disclosure is not contingent upon the information being admissible at trial. Impeachment evidence is not limited to questions of veracity and can include issues such as prejudice or bias. The Mecklenburg County District Attorney’s Office, in our continued effort to promote the highest ethical standards and public confidence in the court system, has made the policy decision to begin a heightened Giglio screening process.

This policy will more closely reflect the Department of Justice Giglio screening procedures. The purpose of this policy is to ensure that prosecutors and the defense receive sufficient information to comply with the constitutional requirements of Brady and Giglio while protecting the legitimate privacy rights of law enforcement witnesses.

This policy is not intended to create or confer any rights, privileges, or benefits to defendants or prospective or actual witnesses. This is not a discovery policy. The materials we are required to provide under Brady / Giglio are not part of “the investigation of the crimes committed” as described in N.C.G.S. §15A-903.

Rather, they are investigations of officer conduct and often the information is contained in files protected by employee privacy laws.

BRADY / GIGLIO COMMITTEE:

To ensure compliance with this Brady / Giglio policy, and to protect the privacy of witnesses called by the State, the District Attorney’s Office shall have a Brady / Giglio Committee. This ad hoc Committee shall be comprised of at least three Team Supervisors.

When considering whether to disclose potential Brady / Giglio material, the Team Supervisor or their designee who reviewed the potential Brady / Giglio material must be one of the three. A decision to disclose Brady / Giglio material must be made by a majority of the Committee members.

A decision not to disclose potential Brady / Giglio material must be unanimous. If the Committee cannot reach a decision, the District Attorney will decide the issue. The Committee shall be chaired by the Drug Team Supervisor or another ADA designated by the District Attorney.

The Chairperson shall designate a substitute chairperson to preside when s/he is unavailable to preside. The materials reviewed and memoranda of conclusions reached shall be maintained by the Chair in a secure location in the District Attorney’s Office. In those cases where the Committee determines that sustained misconduct allegations are subject to disclosure, the materials providing the basis for that decision shall be maintained for purposes of complying with Brady / Giglio obligations in future cases.

The information contained in these administrative files shall only be accessed for case-related purposes. Only the materials relevant to the particular case will be disclosed. The conclusions of the Committee, based upon the delegation of that authority by the District Attorney, represent the official position of the Mecklenburg County District Attorney’s Office on the issue of whether or not the information in question is Brady / Giglio material.

The assigned ADA must treat the information accordingly. If the assigned ADA disagrees with a decision made by the Brady / Giglio Committee, the ADA shall raise the issue within the confines of his/her chain of command. Subject to review and approval by the District Attorney, the Committee shall be responsible for any changes to this policy.

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