I blogged recently about whether the state is obligated to produce its witnesses’ criminal records in discovery. (Recall that the answer is no, in North Carolina, with some exceptions.) Another question that sometimes comes up regarding the state’s witnesses is whether the state must inform the defense if one of its witnesses goes missing, or dies, or otherwise becomes unavailable. For example, if the victim in a sexual assault case is from Mexico, and returns there during the pendency of the case, without leaving any contact information, must the state inform the defense? Or may the state attempt to negotiate a plea and salvage something out of the case?
The short answer is that there is no legal principle that specifically requires the disclosure of information of this kind, although it will often be part of the prosecution “file” for purposes of the statutory discovery requirements in G.S. 15A-901 et seq.
First off, the fact that a witness has gone missing is not subject to constitutional disclosure under Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the state to disclose “evidence . . . which . . . would tend to exculpate” the defendant or to mitigate the offense. The fact that a witness has gone missing is not evidence at all, nor does it tend to exculpate the defendant or to mitigate the offense. The leading case in this area is People v. Jones, 375 N.E.2d 41 (NY 1978), which held that a prosecutor was not required to disclose the fact that one of the state’s witnessed had died, because the witness’s death not “exculpatory evidence.”
The next question is whether the witness’s unavailability must be disclosed in order to comply with the Rules of Professional Conduct. Rule 3.8(d) requires a prosecutor to disclose “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” Although the use of the phrase “evidence or information” makes this a slightly closer call than the Brady question, the fact remains that the disappearance of the witness doesn’t tend to exculpate the defendant or to mitigate the offense.
However, the statutory discovery rules in G.S. 15A-901 et seq. will often effectively require disclosure of the fact that a witness has gone missing. Although nothing in those statutes specifically requires such disclosure, it would be unusual for a prosecutor or investigating officer to learn of a witness’s unavailability without that information making it into the “file” that must be disclosed under G.S. 15A-903. For example, if an officer attempts to reinterview the witness and learns that the witness has returned to Mexico, the officer is likely to make a note or report of that fact — and the note or report is part of the file. If the witness’s friend calls the prosecutor’s office to tell the prosecutor that the witness will not be available for trial, that notification still seems to me to be a “matter . . . obtained during the investigation” of the defendant, and so subject to disclosure.
If, for some reason, a witness’s unavailability is not part of the “file” in a particular case, the prosecutor need not disclose it immediately. However, the prosecutor would need to be careful about what he or she said during plea negotiations, in order to avoid making a false statement or misrepresentation that would be improper under Rules 4.1 or 8.4 of the Rules of Professional Conduct. And of course, the witness’s unavailability would eventually come to light. At a minimum, the prosecutor could not include the witness’s name on the list of witnesses the state “reasonably expects to call,” a list it must provide to the defense at the beginning of jury selection under G.S. 15A-903.