New Reporting Requirements for Giglio Notifications

Last November, I blogged about recommendations from the North Carolina Sheriffs’ Association for legislation that would enable hiring authorities, certifying commissions, and state prosecutors to learn of misconduct by officers, including untruthfulness, that would impair an officer’s credibility as a witness in a criminal prosecution and which must be disclosed to the defense. This type of information often is referred to as Giglio material, adopting the name of the first U.S. Supreme court case to apply a disclosure requirement to evidence relevant to impeaching a government witness, Giglio v. United States, 405 U.S. 150 (1972).

This session, the General Assembly enacted legislation implementing some of the Association’s recommendations. Among the changes enacted by S.L. 2021-137 (S 536) and S.L. 2021-138 (S 300) are requirements that the certifying commission for an officer be notified when the officer is informed that he or she may not be called to testify at trial based on bias, interest, or lack of credibility. If the officer transfers to a new agency, the Criminal Justice Standards Division (in the case of State, municipal, company, and campus officers) or the Justice Officers’ Standards Division (in the case of deputy sheriffs, detention officers, and telecommunicators) must notify the head of the new agency and the elected district attorney in the prosecutorial district where the agency is located that the person has been previously notified that the person may not be called to testify at trial.

New G.S. 17C-16 (applicable to any person certified by the North Carolina Criminal Justice Education and Training Standards Commission or who has received a conditional offer of employment) and new G.S. 17E-16 (applicable to any person certified by the North Carolina Sheriffs’ Education and Training Standards Commission) impose the following requirements:

  • A person who has been notified that the person may not be called to testify at trial based on bias, interest, or lack of credibility must report and provide a copy of that notification to the appropriate Division – the Criminal Justice Standards Division or the Justice Officers’ Standards Division — within 30 days of receiving the notification. This requirement applies when the person is notified in writing of such a determination by a superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, assistant United States attorney, or the person’s agency head. It also applies when the person is notified in open court by a superior court judge, district court judge, or federal judge and the determination is subsequently documented in a written order.
  • The report to the Division must be in writing and must state who notified the person that he or she may not be called to testify at trial.
  • The person must make the same report to the head of the person’s agency within 30 days of the notification.
  • The agency head must report the notification to the Division in writing within 30 days of receiving the report.
  • A superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, or assistant United States attorney who notifies a person they may not be called to testify based on bias, interest, or lack of credibility must report that notification to the Division and must provide a copy of the written document or order. This must occur within 30 days of notifying the person that he or she may not be called to testify at trial.
  • If the Division transfers to another agency the certification of any person who has received such a notification, the Division must inform in writing the head of the new agency and the elected district attorney in the prosecutorial district where the agency is located that the person has been previously notified that the person may not be called to testify at trial.
  • If the person is informed in writing that a notification has been rescinded, the person must provide the Division with a copy of that document. If the Division is informed in writing that a notification has been rescinded, it is not required to inform the head of a new agency or the elected district attorney of the notification upon the person’s transfer.

Judicial determination. A person who receives a notification that he or she may be required to report may apply for a hearing in superior court for a judicial determination of whether the person received a notification that the person may not be called to testify at trial based on bias, interest, or lack of credibility. The hearing is limited to the following issues:

  • Is the person certified by the Commission or has he or she received a conditional offer of employment?
  • Has the person been notified in writing by covered official or notified in open court by a covered official of a determination documented in a written order?
  • Does the notification state that the person may not be called to testify at trial based on bias, interest, or lack of credibility (as opposed to matters of law or admissibility)?

A person who seeks such a hearing must notify the Division. If the Division is notified of a hearing, it must extend the 30-day reporting requirement by 15 days.

Regular reports to General Assembly. The North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs’ Education and Training Standards Commission must report to the General Assembly each year regarding the number of individuals for whom it received notification that person cannot testify. These reports must include information on what action, if any, has been taken against the person’s certification. No names or other identifying information of the persons subject to these notifications and actions may be included in these reports.

Effective date. These provisions became effective October 1, 2021. They apply to notifications received before, on, or after that date by persons who are required to report.