Must the State Inform the Defense When a Witness Goes Missing?

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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.

5 comments on “Must the State Inform the Defense When a Witness Goes Missing?

  1. Here’s a related issue that tends to crop up from time to time that I’d like to see you address. Is the prosecutor required to reveal that the investigating officer has left the department or is otherwise unavailable, putting the entire prosecution case in doubt? Quite often, cases involve only one officer, and when that officer leaves, prosecutors almost never reveal that fact even though they knew that well before setting a trial date. This seems to be something that should be revealed to the defense, especially when both sides are negotiating a resolution to the case. For example, a prosecutor didn’t reveal to me that the investigating officer had left the county and was in Iraq indefinitely until we were literally previewing a plea transcript with the presiding judge.

    • I think that falls under the exact same reasoning as a missing victim or civilian witness. The fact that the officer is off serving his country does not change any of the facts of the case itself.

      As for your last line about a prosecutor not telling you about an officer being in Iraq, I’m sure the reason you were so appalled is because you *always* make sure to tell the prosecution when your star defense witness cannot be found, right? I bet you do it at the same time you turn over that witness’s statement with the, “new or substantially different,” information in it, correct? It is all about the, “search for the truth,” after all…

      • I never said I was appalled by what happened. I said it seemed to be something that ought to be revealed, especially when the two sides are engaged in extensive negotiations over time, as was the case here.

        Considering that the only evidence of my client’s involvement in the crime was his statement to the officer, and that officer was no longer around to provide the foundation for admitting that statement into evidence, it’s kind of a big deal. No statement = no evidence for jury to consider = no conviction. See, I’m kinda funny about asking that the U.S. and N.C. constitutions are followed. In case you have forgotten – and from your post, it appears you have – it’s the State’s burden to prove beyond a reasonable doubt that a defendant is guilty. It’s not my job or responsibility to prove or search for the truth, but it is my job to protect my client’s constitutional rights and hold the state to its burden. For another thing, rarely is there a “star witness” except in the big cases, such as the Duke Lacrosse mess, so that’s hardly ever an issue. But when I do have a witness who can exculpate my client, I reveal that well before I’m required to and often offer to let the DA’s office speak with that witness. That they often fail to take me up on my offer speaks more about them than it does me.

        Lastly, I’m not sure that working for the company formerly known as Blackwater qualifies as “serving your country.”

        By the way, before you attack me personally again, you should do two things –

        1. Try a case with me first before you assail my integrity; and
        2. Be brave enough to sign your name to your post.

        • I was not attacking you personally, nor assailing your integrity. I was being sarcastic. The last comment was meant to be tongue-in-cheek. I apologize if it came off any other way.

          The rest of my comments were meant to address the fact that a criminal jury trial, for many reasons, is not a search for the truth; despite what the pattern jury instructions say. I will support your proposal to reform the specific aspect of discovery raised by this post, when you support informing the jury, up front, about how the system *really* works (i.e. one-way discovery, differing ethical obligations of both sides, Grand Jury, procedural safeguards, the whole 9 yards.)

          • Like all fellow citizens, the jury should have been paying attention in high school civics class when the discussion about the Constitution is routinely held. They would have at least heard about the basics of the system, such as the procedural safeguards of making the state meet the burden of proving guilty beyond a reasonable doubt. As for specifics regarding discovery and ethical obligations of each side, those rules are available for anyone to read and comprehend, providing the reader has an IQ above room temperature. Discovery isn’t as “one-way” as you make it out to be; I certainly can’t spring documents on the state at the last minute in the middle of the trial, especially when the state routinely serves requests for reciprocal discovery early on in each case. The grand jury as a safeguard against wrongful indictments is a sad joke, speaking of “one-way” procedures. Rarely do the grand jurors question in the slightest the evidence being presented to them by sworn law enforcement officers. Yet we know of many cases where, unequivocally, the persons indicted were not only not guilty, they were actually innocent. What is really frightening is the innocent defendants that we have yet to discover.

            As for how the system really works, it doesn’t take long to figure out that, despite our lofty language about “innocent until proven guilty,” defendants are presumed guilty, and even when they see charges against them dismissed, everyone presumes it’s because they “beat” the charge and not because they were innocent. I wish I had a dollar for every time a prosecutor refused to consider reducing or dropping a charge just because a defendant had prior charges dismissed outright, even though the prosecutor had no knowledge re: the facts of the earlier dismissal(s).

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