Disclosure of Evidence to the Defense
Receipt of exculpatory evidence the Defendant and their defense lawyers is of little value if dumped on the eve of trial, without the ability to properly analyze, digest, and prepare for trial.
In Mecklenburg County, the District Attorney’s Office has established procedures for staff attorneys (Assistant District Attorneys or “ADA’s) for the review and disclosure of exculpatory Brady and Giglio content in a timely fashion.
The materials herein are part of the Charlotte DA’s Office 2019 policy and are edited for ease of reviewing online. If you’d like a copy of the written policy, please call our law office at: 704-342-4357.Procedure for the State to Disclose Evidence to the Defense
- For every trial scheduled in Superior Court and District Juvenile Court, the assigned ADA will prepare a list of law enforcement and civilian witnesses employed by law enforcement agencies who are expected to be called during the trial. The ADA is to provide that list to the Team Supervisor immediately following the Pre-Trial Readiness Conference. For Teams that do not have Pre- Trial Readiness Conferences, the Team Supervisor will designate when the list is to be provided.
- The Team Supervisor will send the list of witnesses to the Giglio Committee Chair who will contact the involved law enforcement agencies and request each agency to search their Internal Affairs (I/A) files of each officer or employee on the list for SUSTAINED VIOLATIONS within ten years of the request. The agency will be requested to provide the Chair with a list of officers or employees with sustained Internal Affairs violations within the past ten years. The participating agency may, instead of allowing access to the relevant I/A files, certify to the District Attorney’s Office the absence or presence of Brady / Giglio material.
- The Chair will review the list and determine whether any of the violations could be considered as material falling under this policy. The Chair will request access to the complete I/A file on a case-by case basis to review the underlying factual allegations and evidence when necessary.
- For sustained I/A violations that potentially require disclosure, the Chair will summarize the facts and allegations from the I/A file in memo form and present the information to the Brady / Giglio Committee for guidance. The summary will not contain the name of the involved witness.
- If the Committee decides the material should be disclosed pursuant to this policy, then the information contained in the memo summarizing the I/A violations shall be turned over to the defense. (Please note that we are turning over a memo, not the file). The file does not belong to this office and is not discoverable as it was not part of “the investigation of the crimes committed” as described in N.C.G.S. §15A-903.
- There will be instances in which material would be turned over in one type of case and not another. For example, a sustained complaint for use of force that showed a potential bias against Native Americans would not be Brady / Giglio material in cases not involving excessive force or Native Americans. However, a sustained violation involving honesty less than ten years old would be disclosed. In the instance involving conduct that might only be disclosed in rare cases, the ADA should consider seeking a protective order.
- Upon a decision that the conduct of a particular officer will be disclosed as Brady / Giglio material, the Chair will notify the officer that s/he is being placed on our Brady / Giglio list. The Chair or the appropriate Team Supervisor will be available to meet with the affected witness to discuss the procedure that will be followed. There may be instances in which the material that must be disclosed is so damaging to the witnesses credibility that the District Attorney, in his sole discretion, may choose not to call the impacted witness as a witness in the case at hand or any future cases. In those rare instances, the District Attorney will allow the witness the opportunity to meet with the District Attorney before any final action is taken.
- For misdemeanor cases pending in District Court, it is the position of this office that a matter is “for trial” when it is scheduled in a trial courtroom on the fourth floor of the Mecklenburg County Courthouse. The Misdemeanor Team Supervisor will track the assigned court dates for law enforcement officers for which the Giglio Committee has previously determined that a Brady/Giglio disclosure is required.
- The Misdemeanor Team Supervisor will attend all court dates for these officers and review the cases, with the assigned courtroom ADAs, to determine if the officer is necessary to proving the elements of the case(s) for which the officer was subpoenaed. If the officer is NOT a necessary witness, the officer will be excused and removed from the witness list.
- Where an officer previously determined to have a Brady/Giglio disclosure is a necessary witness in a pending case in criminal district court, whether or not the matter is marked for trial, the Misdemeanor Team Supervisor will make the appropriate disclosure, by hand delivery, to the defense attorney immediately.
- If the District Attorney determines that the material in question is so damaging to the witness’ credibility that the witness will not be called in the case at hand and in any future case, and the witness is employed as a sworn law enforcement officer, the District Attorney will: 1) notify the law enforcement agency that employs said witness of the decision; 2) notify the North Carolina Criminal Justice Education and Training Standards Commission of the decision; 3) undertake a review of all adjudicated cases in which said officer was a material witness, which resulted in a conviction, and in which a case file or other similar material exists, to ensure that no actions or testimony by said officer tainted the conviction. If any actions or testimony by said witness are found which may have tainted an adjudicated case which resulted in a conviction, the District Attorney shall notify the defendant and/or the attorney who represented the defendant in said case of the District Attorney’s findings and take appropriate next steps as justice should require.