Exculpatory Evidence Discovered by Prosecutors
The elected District Attorney in Mecklenburg County adopted a comprehensive policy regarding the release of Exculpatory Evidence.
Such voluntary, detailed disclosure of Brady Material includes evidence, records, and documentation collected by law enforcement.
The DA’s Office in Charlotte holds itself to the same ethical standards and procedures demanded of law enforcement. That is a groundbreaking development in the criminal prosecution of matters in North Carolina.
The Mecklenburg County District Attorney’s Office has consistently led the state on the issue, serving as a polar star to others regarding the ethical disclosure of Brady and Giglio materials to the Defendant and criminal defense lawyers Charlotte NC.
The contents herein are edited for ease of reading online. If you have questions about your Constitutional Rights, including Due Process requirements pertaining to both a Motion for Discovery or voluntary disclosure, please call us.
You may also find additional, related content on our website here.Disclosure of Evidence Held by Mecklenburg District Attorney
Upon learning of a credible allegation involving a law enforcement employee or expert witness misconduct or credibility that may be subject to disclosure under Brady, ADAs shall timely report this information to their immediate supervisor.
For example, evidence of untruthfulness may come to light during a criminal trial, or from credible reports of other law enforcement employees based on non-confidential sources other than personnel records. Such allegations must be substantial and not a simple conflict in testimony about an event.
The notification itself ultimately might be examined in camera and/or be disclosed to the defense, so carelessness in wording or premature conclusions are to be avoided. If and when such information is obtained, the District Attorney’s Office will conduct a thorough analysis pursuant to the procedures outlined herein to determine if it is required to disclose the information pursuant to Brady.
ADAs shall advise their supervisors if they become aware of any of the following information regarding a law enforcement employee or expert witness:
- Criminal convictions of law enforcement employees.
- Prosecutions initiated against law enforcement employees.
- District Attorney’s Office rejections of requests for initiation of prosecution against law enforcement employees.
- Any administrative discipline imposed against a law enforcement employee that may have a bearing on credibility.
- Following receipt of such a report, the supervisor of the ADA shall obtain all available information concerning the alleged misconduct, including the transcript of any testimony provided, and shall forward the materials to the Brady/ Giglio Committee.
- The Committee shall review and analyze the materials in light of applicable law. In some cases, it may be necessary and appropriate for the District Attorney’s Office to obtain copies of additional court documents or police reports, or interview witnesses. However, absent extraordinary circumstances, the District Attorney’s Office will not seek to interview the officer in question or other employees of the employing law enforcement agency.
- Following the initial review and analysis described above, the Committee shall decide which of the following conclusions is appropriate: (1) the materials do not constitute Brady / Giglio material; or (2) it appears that disclosure may be required under Brady / Giglio. When the Committee cannot conclude that either 1 or 2 is appropriate, then further investigation, including interview of the officer in question or other employees of the employing law enforcement agency, should be undertaken by the employing law enforcement agency.
- If the Committee concludes that based on the initial review it is clear that the materials do not constitute Brady material, the matter shall be closed.
- If it appears after the initial review that information regarding an officer may be Brady / Giglio material, the officer and the head of the employing law enforcement agency may be invited to provide written comments, or additional information that may bear on the decision of what information, if any, shall be provided. Given the need to provide prompt disclosure to the defense in criminal cases, the opportunity to comment, or provide information may out of necessity be brief or non-existent. If the information regarding an officer is Brady / Giglio material and resulted in a sustained Internal Affairs violation criminal charges being filed against the officer and/or the officer’s employment being terminated, neither the officer nor the employing agency will be invited to provide written comments, or additional information in connection with the officer’s name being added to the Brady / Giglio list.
- The Committee shall evaluate all information received and make determinations or conclusions about what disclosure, if any, is appropriate. The Committee’s decision may include but is not limited to the following actions:
- No further action based upon a conclusion that no Brady/ Giglio material exists.
- Disclosure is required in a specific case only.
- Disclosure must be provided in additional cases in which the law enforcement employee is or was a witness.
- In some cases, presenting the material to a judge for in camera review may be an appropriate manner of resolving the disclosure issue.
- In some cases, blanket notification to the defense bar may be appropriate as a back-up form of notification in situations in which we cannot be confident that we have identified all of the affected parties.
- If the Committee determines that disclosure is appropriate, it shall send written notification to the officer and to counsel of the employing law enforcement agency describing the nature of the conduct.
(There might be instances where providing notice is not immediately practicable or possible, and that decision will be made by the Committee or the District Attorney.).
In some cases, after the initial review, the Brady / Giglio Committee may conclude that the District Attorney’s Office is not in possession of sufficient information to conclude that conduct coming within Brady / Giglio has occurred, but that further investigation is appropriate.
- As previously stated, absent extraordinary circumstances, the District Attorney’s Office will not seek to interview the officer or other employees of the officer’s agency. In such cases, the matter shall be referred to the employing law enforcement agency to request an investigation.
- If, after investigation, the employing law enforcement agency concludes that the complaint is unfounded or the witness is exonerated, then disclosure may not be warranted because the information is “preliminary, challenged, or speculative.” (U.S. v. Agurs, supra.)
- If the employing law enforcement agency sustains the complaint, the District Attorney’s Office shall treat the information according to the Brady / Giglio policy