What is a Giglio Disclosure?

Brady and Giglio Material – Transparency in Motion for Discovery in NC

Brady RuleThe following legal reference materials are in addition to those previously posted by our law firm.  While discovery materials pursuant to Brady v. Maryland supplement the NC criminal laws relevant to voluntary discovery or a Motion for Discovery, they are technically distinct from the State providing Giglio content.

One way to think of it is that, generally speaking, all Giglio v. United States content likely falls within the Brady Rule, but not all Brady materials are Giglio disclosures.  Brady has to do with the voluntary disclosure of favorable information that may be exculpatory in nature.

Criminal lawyers may refer to exculpatory evidence as information that may tend to show innocence or be helpful in the defense of a criminal matter or that may result in limiting the sentence imposed if convicted of criminal charges.  Both Brady and Giglio apply to felony and misdemeanor charges.

The defendant need not request Brady material.  The prosecutor (the ADA or “the state”) is charged with the responsibility of reviewing the documentation and making inquiry into the existence of potential exculpatory, favorable evidence and to disclose that to the Defendant and/or their criminal defense lawyer.

Giglio, again, generally speaking, is often thought as the requirement to disclose impeachment evidence to the Defendant.  It too is an affirmative duty of the prosecutor, even if not specifically requested by the defendant or their defense attorney.  The Due Process rules of the Constitution mandate the release of information involving:

  • Criminal activity and/or crimes by law enforcement
  • Specific instances of dishonesty
  • Information that tends to show bias towards the accused (the Defendant)
  • Exculpatory Evidence
  • Impeachment Information
    • Character Evidence relating to honesty or truthfulness, or lack thereof

Law enforcement officers are also duty bound to take affirmative steps to comply with the Constitutional Rights as set forth pursuant to the respective US Supreme Court opinions.

If you have pending criminal charges in NC, please call our criminal lawyers to discuss your case.  Each legal matter is unique.  It, therefore, makes sense to review the individual aspects of your case to determine the applicability of any voluntary disclosure and discovery issues, relative to your criminal charges.

Criminal Charges in Charlotte NC – Mecklenburg DA Procedures 

The District Attorney is obligated to provide the defense in criminal cases with exculpatory evidence that is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. (Brady v. Maryland, supra, 373 U.S. 83, 87.) Reviewing courts define “material” as follows:

“The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. King, 628 F.3d 693, 702 (2011). Materiality, however, does not require a demonstration that the undisclosed evidence would have resulted in the defendant’s acquittal. Kyles, 514 U.S. at 434. Rather, the defendant must show that the undisclosed evidence would “undermine confidence in the outcome of the trial.”

This constitutionally imposed disclosure obligation is not limited to materials in the hands of the prosecuting agency. It extends to information “known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).

Consistent with the North Carolina statutes regarding impeachment of a criminal defendant, we will “look back” for a period of ten years when requesting and reviewing material that may be subject to disclosure. However, if the decision is made to disclose information regarding a witness, we will always disclose from that disclosure forward and continue even after ten years elapses.

Brady / Giglio disclosure obligations apply to substantial material evidence bearing on the credibility of a key prosecution witness. See State v. Williams, 362 N.C. 628 (2008) (Union
County conviction reversed in part because prosecutors destroyed impeachment evidence).  However, such impeachment evidence likely must disclose more than “minor inaccuracies.”
(People v. Padilla 11 Cal.4th 891, 929 (1995), overruled on other grounds, People v. Hill 17 Cal.4th 800, 823, fn. 1. (1998).

The government has no Brady obligation to “communicate preliminary, challenged, or speculative information.” (United States v. Agurs (1976) 427 U.S. 97, 109 fn. 16.) However, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.”  See also Kyles v. Whitley (1995) 514 U.S. 419, 439, which warns prosecutors against “tacking too close to the wind” in withholding evidence.

Below is a non-exhaustive list with examples of evidence that may constitute “Brady material:”

  1.  The character of the witness for honesty or veracity or their opposites
  2. A bias, interest, or another motive
  3. A prior statement by the law enforcement witness that is inconsistent with the witness’s testimony
  4. Any conviction that could be used for impeachment purposes pursuant to N.C.G.S. § 8C-1, Rule 609
  5. False reports by a prosecution witness
  6. Parole or probation status of a witness
  7. Evidence undermining an expert witness’s expertise
  8. Evidence that a witness has a racial, religious or personal bias against the defendant individually or as a member of a group

The standard of proof for disclosure of information shall be the “substantial information” standard. “Substantial information” is defined as facially credible information that might reasonably be deemed to have undermined confidence in a later conviction in which the law enforcement employee is a witness, and is not based on mere rumor, unverifiable hearsay, or a simple and irresolvable conflict in testimony about an event.


See also:  Disclosure of Exculpatory Evidence in Charlotte NC 

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