brady

The Confidential Informant File: What Is It and When Must It Be Disclosed to the Defense?

I recently completed a series of posts on issues surrounding confidential informants (“CI’s”), discovery, and motions to reveal the CI’s identity. In this “bonus” post, I will discuss a related question: what is the “CI file” and when must the State turn it over to the defense? Let’s say the defense is successful in compelling … Read more

More on Officer Misconduct and Giglio

Years ago, I wrote this post about when evidence of an officer’s prior misconduct must be disclosed by the prosecution as material impeachment information under Giglio v. United States, 405 U.S. 150 (1972). The Fourth Circuit recently decided a case on point. This post discusses the Fourth Circuit case and other recent authority. In essence, it updates my previous post.

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Does an Officer Who Receives a Giglio Letter Have a Right to a Name Clearing Hearing?

In my most recent post, I noted that a law enforcement officer who is fired will sometimes have a right to a “name clearing hearing” at which the officer may supply evidence contradicting negative information about the officer’s honesty or integrity that the agency released in connection with the officer’s termination. I ended that post by asking whether an officer who is fired in connection with a Giglio letter is entitled to such a hearing. Under most circumstances, the answer to that question is no. Keep reading for more details.

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Sheriffs’ Association Releases Report Recommending Giglio-Related Reforms, Among Others

Last week, the North Carolina Sheriff’s Association released a 31-page Report on Law Enforcement Professionalism recommending numerous law enforcement reforms. The report, created by a working group formed after the killing of George Floyd and the public outcry for policing reform that followed, is part of “an effort to create a law enforcement profession that will not tolerate racism and excessive force by law enforcement, and that will hold North Carolina law enforcement to a high standard.” (Report at 5.) Changes are recommended for officer certification and de-certification, training, agency accreditation, use of force policy and data collection, and recruiting and retention. The document, which, among other things, contains the most comprehensive description of the training and education requirements for law enforcement officers I’ve ever seen, is worth reading in its entirety. This post focuses only on one aspect of the report: recommendations that would enable hiring authorities, certifying commissions and state prosecutors to learn of misconduct by officers, including untruthfulness, that would impair the officer’s credibility as a witness in criminal prosecutions and which must be disclosed to the defense.

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DWI Update: May 2020 Edition

My colleagues and I usually spend the waning weeks of May slogging through months of appellate opinions, determining which cases merit discussion at upcoming summer conferences. This year, of course, there are no live summer conferences. Yet we are still slogging. We are delivering a virtual criminal case update for district court judges this week … Read more

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Five Ethics Rules Every Prosecutor Should Know

The School of Government and the Conference of District Attorneys co-sponsored Practical Skills for New Prosecutors last week. The five-day course includes 12 hours of Professionalism for New Attorneys requirements, so we spent a lot of time talking about professionalism and ethics. While every attorney should, of course, be familiar with the Rules of Professional Conduct, there are five ethics rules that should be at the top of every prosecutor’s list.

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Discovery of Officers’ Text Messages

More than a trillion text messages are sent each year in the United States alone. Some of these messages are work-related communications from law enforcement officers to fellow officers, witnesses, prosecutors, and others. Which, if any, of these messages are discoverable? How should officers preserve discoverable messages? Must prosecutors ask for officers’ text messages before providing discovery to the defense? This post begins to address these questions.

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Brady, Materiality, and Disclosure: Turner v. United States

The Supreme Court just decided Turner v. United States, rejecting the Brady claims of several defendants convicted of a brutal and highly publicized murder in Washington, D.C. Although the Court ruled in the prosecution’s favor, it also encouraged prosecutors to provide defendants with all evidence that may be helpful to the defense, even if that evidence does not cast material doubt on the prosecution’s case.

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State v. Marino Finds No Error in Denying Defendant Source Code

The North Carolina Court of Appeals decided its first breath-testing source code case yesterday.  The court in State v. Marino affirmed the trial court’s determination that the defendant had no right to examine the source code for the Intoximeter EC IR II, the instrument used to analyze his breath alcohol concentration after he was arrested … Read more

Must Officers’ Prior Misconduct Be Disclosed in Discovery?

I’ve had a whole bunch of phone calls lately raising the same basic issue: suppose that a prosecutor is aware that an officer has been dishonest or has engaged in other misconduct in the past. Must the prosecutor disclose the officer’s dishonesty or misconduct to the defendant in a pending case in which the officer … Read more