Must the State Produce Its Witnesses’ Criminal Records in Discovery?

I’ve been asked several times whether the state is required to provide the defense with the criminal record of the state’s witnesses.

There are two possible justifications for such a requirement. First, one could argue that disclosure is mandated by the discovery statutes, G.S. 15A-901 et seq. Second, one could argue that disclosure is required by Brady v. Maryland, 373 U.S. 83 (1963), which generally holds that the state must produce any exculpatory, mitigating, or impeachment evidence to the defense. These arguments have failed to persuade our appellate courts, which have repeatedly held that a defendant is not entitled to this information. See, e.g., State v. Williams, 355 N.C. 501, 543-44 (2002) (citing cases); State v. Bruce, 315 N.C. 273 (1985).

I don’t think the issue is quite as settled as it seems, though, either as a statutory matter or as a constitutional one. Starting with the statutory analysis, Williams and virtually all the other cases in this area were decided before the enactment of open file discovery in 2004. S.L. 2004-154. Under the new version of G.S. 15A-903, the state must produce “the complete files of all law enforcement and prosecutorial agencies” involved in the case. Based on that language, when a witness’s record has been printed out or otherwise made part of the case file, it must be produced in discovery.

Moving to the constitutional issue, the reason why many courts have held that the state is not required to produce its’ witnesses’ criminal records is that those records are equally available to the defense. I should note that courts don’t uniformly accept this argument. Compare, e.g., Wilson v. Beard, 589 F.3d 651 (3rd Cir. 2009) (“We have clearly held that the prosecution bears the burden of disclosing to the defense a prosecution witness’s criminal record, whether or not an explicit request has been made by defense counsel,” notwithstanding the public availability of the record), and United States v. Price, 566 F.3d 900 (9th Cir. 2009) (holding that the prosecution must produce its’ witnesses’ criminal records, prison records, and other information relevant to credibility), with, e.g., Bell v. Bell, 512 F.3d 223 (6th Cir. 2008) (en banc) (because the state’s witness’s “sentencing records were available to” the defendant and the public, the prosecution’s failure to produce them did not violate Brady), and United States v. Jones, 34 F.3d 596 (8th Cir. 1994) (where “information about [a witness’s] criminal record . . . was accessible to [the defendant’s] attorney” as a public record, “the prosecution does not violate Brady by not discovering and disclosing the information”).

In North Carolina, it’s reasonable to interpret the Williams line of cases as resolving this issue in the state’s favor as a general matter. Cf. also State v. Jackson, 309 N.C. 26 (1983) (rejecting Brady claim in part because witnesses’ statements “were incorporated into affidavits used to support the state’s application for search warrants . . . . As these warrants were of public record, defendant could have examined them before trial.”). Even so, however, there may be limited circumstances in which Brady requires the state to disclose information about witnesses’ records. For example, in Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999), the Seventh Circuit held that the state’s failure to disclose the criminal record of one of its witnesses violated Brady. The Crivens court stated that under most circumstances, a witness’s criminal record is available to the defendant — for example, by asking the witness on the stand about his record — but noted that in that case, the witness’s record was under an alias, both rendering the record itself inaccessible to the defendant and suggesting that the witness might have lied about his record if asked. The general point is that when a prosecutor knows that a witness has a criminal record, but has reason to believe that the information cannot easily be located by the defense, the prosecutor should disclose it.

Another situation where this general rule might apply is when a prosecutor learns that a witness has a criminal record in another state. I doubt that a prosecutor can generally be charged with knowledge of witnesses’ out-of-state convictions, since the records of those convictions are in the possession of another sovereign. Queen v. State, 198 P.3d 731 (Idaho App. 2008) (state prosecutor not responsible for information about its witnesses’ criminal records that was available through NCIC, as NCIC is a federal database and “the record does not reflect that the FBI played any role in investigating or prosecuting” the defendant). However, if a prosecutor learns of such a conviction, he or she should probably disclose it given that defendants have limited or no access to out-of-state records.

I’d be interested to hear about how this issue is handled around the state, and of course, chime in if you disagree.