There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion.
The early days. North Carolina adopted its first criminal discovery statutes in 1973 as part of Chapter 15A of the General Statutes, which overhauled the state’s criminal procedure. These early criminal discovery statutes entitled the defendant to narrow categories of information only, such as his or her own statements and documents intended for use by the prosecution at trial. The defendant had no statutory right to information outside those categories, such as police reports, witness statements until the witness testified, and other investigative materials. Some prosecutors had “open-file” policies, allowing defendants access to information beyond the statutory categories, but their policies varied.
The prosecution also had, and continues to have, a constitutional obligation under the Due Process Clause to disclose evidence considered to be material and exculpatory. See Brady v. Maryland, 373 U.S. 83 (1963). Although the requirement to produce Brady material is a significant protection for the defense, the U.S. Supreme Court has recognized that it is “inevitably imprecise.” U.S. v. Agurs, 427 U.S. 97, 108 (1976). Individual prosecutors bear the initial responsibility of determining whether evidence is material and exculpatory. The court then determines—sometimes at trial, sometimes long after conviction—whether information should have been disclosed and relief is required. Brady violations continue to be a source of controversy, as indicated by the U.S. Supreme Court’s recent decision in Wearry v. Cain, ___ U.S. ___, 136 U.S. 1002 (Mar. 7, 2016) (Louisiana prosecutor’s failure to disclose evidence casting doubt on credibility of witness violated defendant’s due process rights).
North Carolina’s embrace of open-file discovery. North Carolina has chosen a different path, revising its statutes over the years to require open-file discovery in all phases of criminal cases within the original jurisdiction of the superior court—that is, felonies, misdemeanors joined with felonies, and misdemeanors initiated by presentment in superior court. UNC Law Professor Robert Mosteller observed about these statutes: “[T]hey do not rely on the ethical judgment of a prosecutor involved in a fiercely competitive adversary trial process to determine what is exculpatory. Instead, they impose a blanket rule of general disclosure.” Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 Geo. Mason L. Rev. 257, 260 (Winter 2008).
The North Carolina General Assembly adopted its first open-file discovery requirement in 1996, applicable to capital post-conviction cases. The provision, G.S. 15A-1415(f), requires the State to make available to post-conviction counsel the complete files of all law-enforcement and prosecutorial agencies involved in the investigation and prosecution of the case. This statute also requires the defendant’s trial and appellate counsel to make their complete files available to the defendant’s post-conviction counsel. In 2004, the General Assembly extended the open-file approach to trial-level cases within the original jurisdiction of the superior court. The prosecution also gained greater discovery rights from the defense, although its rights are necessarily more limited to avoid infringing on the defendant’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. In 2009, the General Assembly completed the circle for superior court matters, giving defendants open-file discovery in noncapital post-conviction cases once they have counsel. See G.S. 15A-1415(f). (For a discussion of discovery in misdemeanor cases, which remains limited, see 1 North Carolina Defender Manual § 4.1E, Discovery in Misdemeanor Cases.)
A brief flurry of litigation and legislation. After enactment of these open-file requirements, the appellate courts had to sort out a few legal questions about the meaning of the requirements. See, e.g., State v. Tuck, 191 N.C. App. 768 (2008) (prosecutor must disclose information in law-enforcement files, not just information once provided by law enforcement to prosecutor). The General Assembly also made small changes to address specific concerns. For example, the prosecution may withhold certain personal identifying information of witnesses, such as their social security numbers. See, e.g., 2007 Legislation Affecting Criminal Law and Procedure at 15–17 (Jan. 2008). These changes did not alter the basic statutory approach, which requires disclosure on request and, unless disputed, without court involvement.
Discovery disputes still occur, often about the appropriate sanction for a violation. See, e.g., State v. Martinez, 781 S.E.2d 532 (N.C. Ct. App. 2016) (unpublished) (not abuse of discretion for trial court to allow testimony despite discovery violation by prosecution); State v. Cooper, 229 N.C. App. 442 (2013) (error to exclude defense evidence for alleged discovery violation, discussed in this blog post), review denied, 367 N.C. 290 (2014). For the most part, however, the rules are clear and now a part of everyday practice, which has led to the more settled state of the law. When a violation does occur, open-file discovery “assist[s] the court and opposing counsel in learning of the failure at a relatively early stage in the proceeding,” avoiding further litigation. Mosteller, 15 Geo. Mason L. Rev. at 262.
Disclosure of expert opinion. Disclosure of expert opinion remains an area in which some uncertainty exists. In State v. Davis, the North Carolina Supreme Court addressed the interplay of two provisions: the disclosure requirements under the discovery statutes and the criteria for admission under the rules of evidence.
In Davis, the defendant was convicted of sexually abusing his stepdaughter. The State called a psychologist and mental health counselor as witnesses, who testified about their experiences treating victims of sexual abuse and the problems that victims experience, such as depression and anxiety. The defendant objected to this testimony on the ground that the prosecution had not disclosed these opinions before trial as required by North Carolina’s discovery statutes. The Court of Appeals held that the testimony did not constitute expert opinion because it involved the witnesses’ own experience and observations. Jeff Welty wrote (and expressed some reservations) about the Court of Appeals’ decision in this previous blog post.
The North Carolina Supreme Court found a discovery violation. It held that the testimony constituted expert opinion and that the prosecution had to disclose summaries of and the basis for the opinions before trial (although the Court ultimately concluded that the violation was not so prejudicial as to require a new trial). The Supreme Court rejected the various arguments by the State: that the testimony did not involve expert opinion because the witnesses were not specifically asked for an opinion and did not offer an opinion about a profile or constellation of characteristics of victims of sexual abuse; that expert opinion need only be disclosed if it involves an ultimate issue, such as whether the children were sexually abused; and that disclosure of the experts’ curriculum vitae and treating records were sufficient to comply with the State’s discovery obligations. The Supreme Court recognized that the testimony involved application of the witnesses’ expertise and went beyond mere factual observations.
Davis involves a recurring issue: whether a witness’s testimony involves specialized knowledge, training, or experience and constitutes expert opinion, subject to the disclosure requirements under the discovery statutes and the reliability requirements for admission under the rules of evidence; or whether it constitutes lay opinion or factual observations, not subject to those requirements. Some decisions that seemingly involved expertise have reached the latter conclusion. See, e.g., State v. Smith, 357 N.C. 604, 610–13 (2003) (in case in which nurse had insufficient knowledge, training, and experience to testify as expert about effects of valium, it was permissible for her to give lay opinion about typical effects of valium and her observation about whether the defendant exhibited those effects).
In holding that the testimony in Davis constituted expert opinion, the North Carolina Supreme Court relied on revised North Carolina Rule of Evidence 702(a), which requires greater scrutiny of expert opinion. The Supreme Court stated that “when an expert witness moves beyond reporting what he saw or experienced through his senses, and turns to interpretation or assessment ‘to assist’ the jury based on his ‘specialized knowledge,’ he is rendering an expert opinion.” Slip Opinion at 7 (quoting Rule 702(a)); see also Shea Denning, Only Experts Can Testify about HGN, N.C. Crim. L. Blog (Apr. 27, 2016) (discussing recent Court of Appeals’ decisions holding that law enforcement officer must qualify as expert under Rule 702 to testify about results of horizontal gaze nystagmus test). The Supreme Court noted that it remains permissible for lay witnesses to testify to facts in the form of “shorthand statements of fact” or “instantaneous conclusions of the mind.” Slip Opinion at 7 n.4. The testimony in Davis, however, went “beyond the facts of the case” and relied on “inferences by the experts to reach the[ir] conclusion.” Id. at 11.
Davis could be viewed as a case in which the lower courts just went too far in characterizing the testimony as factual observations. The testimony concerned a technical area (reactions to sexual abuse) by technical witnesses (mental health professionals). The decision may mean more, however. It suggests, first, that the stricter standards in Rule of Evidence 702(a) apply to testimony that involves specialized knowledge, training, or experience. To be admissible, such testimony must meet that rule’s requirements for expert opinion. A second takeaway is that if the parties intend to offer such testimony, they must take care to satisfy their discovery obligations. Failure to do so may result in a violation and, although not imposed in Davis, sanctions.