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

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

WHAT MUST TO BE TURNED OVER? Statutory Discovery Everything Brady Material Exculpatory Giglio Impeachment Kyles v Whitley Reasonably Diligent Inquiry

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.

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

THE LAW REQUIRES Misidentifications Non-identifications Witness Statements I wasn’t there! I wasn’t looking! I didn’t see anything! EVERYTHING

THE LAW REQUIRES ALL Pre-trial witness Statements Multiple versions of an event Inconsistencies

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

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

CONSEQUENCES Question: If law enforcement doesn’t turn over everything, what are the consequences? Answer: NCGS 15A-903 (d) and 15A- 910

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

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

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.

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

WRITTEN AND RECORDED

WRITTEN AND RECORDED Recorded statements: MP3 player, video recording, audio recording

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

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

TEXTS AND EMAILS Emails and texts to friends, family could be discoverable Emails and texts to prosecutors and other officers may be discoverable Emails and texts to witnesses are discoverable

INTERNET Be careful of personal use of social media/blogs/YouTube Defense attorney will check

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)

EVERYTHING MEANS EVERYTHING