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. Continue reading
Tag Archives: discovery
Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue. Continue reading →
Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987). Continue reading →
A national, empirical study of defenses found that the defense of entrapment arose in just 0.08% of cases, usually “to little avail.” Stephen G. Valdes, Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations, 153 U. Penn. L. Rev. 1709, 1716 (2005). But every now and again, arguing entrapment is just the right move for a defendant. The court of appeals recently decided an entrapment case with interesting facts that makes a good occasion for a refresher.
Entrapment basics. A defendant is entitled to a jury instruction on entrapment where there is evidence of (1) inducement, i.e., that there were “acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime,” and (2) origin of intent or lack of predisposition, i.e., that “the criminal design originated in the minds of the government officials, rather than with the . . . defendant. State v. Luster, 306 N.C. 566 (1982) (internal citations and quotation marks omitted). The defendant has the burden of proving entrapment to the satisfaction of the jury. State v. Thompson, 141 N.C. App. 698 (2001). If the evidence of entrapment is sufficiently strong, the defense may be established as a matter of law. State v. Stanley, 288 N.C. 19 (1975).
Facts of Foster. In State v. Foster,__ N.C. App. __, __ S.E.2d __, 2014 WL 3820713 (Aug. 5, 2014), three Charlotte officers “were working undercover at . . . a male strip club . . . investigating a complaint of sexually-oriented business and narcotics violations.” The defendant was a dancer at the club. He and another performer gave the officers lap dances, and one of the officers flirted and joked with the defendant.
In the officer’s version of events, the officer then asked the defendant if he had a “hookup” for cocaine. The defendant said that he did, and followed up that night with text messages to the officer asking the officer exactly what he wanted. According to the officer, he didn’t respond to those texts, but texted the defendant a week later asking him to “hook him up.” The defendant again agreed to do so, and the officer returned to the club to consummate the deal. The defendant’s supplier arrived at the club and the defendant got money from the officer and bought cocaine for him. The defendant was arrested and charged with drug offenses.
The defendant’s version of events, based on his trial testimony, was that he believed that the officer was “interested in him.” The officer asked whether the defendant was single, said that he was “into” the defendant, and gave the defendant a hug at the end of the night. According to the defendant, he did not do drugs but agreed to ask around on the officer’s behalf because he had a crush on him and wanted to impress him. He denied sending several of the text messages referenced by the officer, and testified that he felt “pushed . . . to get [the drugs] or else the interest would have been lost on his part in me.”
Trial court’s ruling. The trial judge declined to instruct the jury on entrapment, for two reasons. First, the judge ruled that the defendant had presented insufficient evidence of entrapment. Second, the judge found that the defendant had failed to give sufficiently detailed pretrial notice of his intent to rely on the defense, as required by G.S. 15A-905.
Sufficient evidence of entrapment. The court of appeals found that the evidence, viewed in the light most favorable to the defendant, was sufficient to require an instruction on entrapment. The officer “falsely led [the] defendant to believe that he was romantically interested in [the] defendant,” then “initiated the conversation regarding drugs” and pursued it again a week later. The court noted that there was no evidence that the “defendant had previously used drugs, engaged in drug dealing,” or had any predisposition to do so until the officer approached him. It characterized the officer’s conduct as “emotional manipulation” of the defendant. However, the court stopped short of finding entrapment as a matter of law.
Discovery sanction too severe. As to the discovery issue, it appears that the defendant notified the State of his intent to claim entrapment months before trial, but did so without providing details about the intended defense. The trial court found that the defendant had not complied with G.S. 15A-905, which requires the disclosure of “specific information as to the nature . . . of the defense,” and as a sanction, declined to instruct the jury on entrapment. The court of appeals ruled that, assuming arguendo that the defendant’s notice was inadequate, the sanction imposed by the trial judge was too severe: there was no evidence of bad faith by the defendant, the State did not press for additional information and was not greatly prejudiced by the defendant’s conduct, and refusing to submit a defense is a “harsh sanction that implicates defendant’s fundamental right to present a defense.”
Based on the foregoing analysis, the court unanimously ordered a new trial for the defendant. He isn’t home free, of course, but he has already gotten more mileage out of the entrapment defense than most defendants ever do.
I’ve had several questions lately concerning search warrants for meth labs. The basic issue is whether officers who find hazardous chemicals and other dangerous items may destroy them right away, before the defendant has a chance to examine and test them. Related questions include whether a judge has the power to authorize such destruction when issuing a search warrant; what steps officers should take to photograph or otherwise document items that they plan to destroy; and how courts should analyze arguments by the defense that the destroyed items had exculpatory potential.
All these questions turn out to be complicated and interesting, and the resulting analysis became too long for a blog post. I turned it into a short paper in PDF format. The paper is available here. As always, I welcome comments and feedback of all kinds.
In State v. Cooper, issued last week, the Court of Appeals reversed the defendant’s conviction for first-degree murder of his wife and ordered a new trial. The case has drawn considerable media attention; recent news reports indicate that the State intends to petition the state Supreme Court for review. This blog post focuses on one aspect of the decision by the Court of Appeals—the constitutional limits on discovery sanctions against the defendant, which previous North Carolina decisions had not closely examined.
In Taylor v. Illinois, 484 U.S. 400 (1988), the U.S. Supreme Court considered the appropriateness of sanctions against the defendant for discovery violations. The Court recognized that the Compulsory Process Clause of the Sixth Amendment gives defendants the right to present a defense. The Court then found that preclusion of a defense witness’s testimony as a sanction for a discovery violation may violate this right (rejecting the State’s argument that a discovery sanction would never violate the right to present a defense) but that preclusion is not automatically a violation (rejecting the defendant’s argument that preclusion would never be an appropriate sanction). The Court declined to announce a “comprehensive set of standards to guide the exercise of discretion in every possible case” (id. at 414), but it provided some direction about when preclusion, perhaps the most drastic sanction against the defense, may be permissible. In upholding the sanction imposed by the trial court, the Court stated that this “case fits into the category of willful misconduct in which the severest sanction is appropriate.” Id., 484 U.S. at 417.
In Cooper, the appropriateness of discovery sanctions against the defendant arose in connection with evidence obtained from the defendant’s laptop computer. Forensic examiners for the State testified that they had recovered temporary internet files from the defendant’s laptop, which showed that the day before his wife’s death someone had conducted a Google map search from the defendant’s home to the place where his wife’s body was later found. In response, the defendant attempted to call an expert to testify that the internet files had been planted, but the State objected that the expert did not have sufficient training and experience to give this opinion and the trial court allowed the expert to give only general testimony about the ease with which computer files could be altered or planted. The defendant immediately located a second computer expert, who reviewed the first expert’s work and was prepared to give a similar opinion. The State objected to the second expert, however, arguing that the defendant had violated the discovery statutes by failing to list the second expert on his witness list and failing to provide a copy of the second expert’s report and qualifications to the State before trial. The trial court agreed and precluded the second expert from testifying as a sanction for the discovery violation. As a result, the defendant was unable to present any expert testimony that the Google map files were corrupted or tampered with. The Court of Appeals reversed, finding among other things that the trial court erred by precluding the second expert from testifying as a discovery sanction. (The Court of Appeals also found merit in the defendant’s arguments that the trial court erred by limiting the first expert’s testimony and by denying the defendant’s motion to compel information about FBI computer protocols used in analyzing the defendant’s computer.)
Relying on Taylor v. Illinois and other decisions, the Court of Appeals in Cooper recognized that the sanction of preclusion against the defendant should be reserved for the most serious discovery violations. The Court found that the defendant sought out a second expert only after the State objected, for the first time at trial, to the qualifications of the defendant’s first expert. The defendant was not seeking a tactical advantage, and the record showed no willful misconduct. In finding the preclusion sanction disproportionate to the alleged discovery violation, the Court considered the fundamental nature of the right to present a defense, the importance of the excluded testimony to the issues in the case, and the minimal prejudice to the State by a lesser sanction, such as a continuance or recess. The Court concluded that the trial court abused its discretion in imposing the “harsh sanction” of preclusion. The Court found in the alternative that the sanction violated the defendant’s rights under the United States and North Carolina constitutions.
Some North Carolina decisions, without discussing constitutional considerations, have taken a similar approach in assessing the appropriateness of sanctions, examining the seriousness of the violation and weighing it against other interests. For example, in State v. Lane, 365 N.C. 7 (2011), in which the court upheld the trial court’s exclusion of the defendant’s expert testimony, the defendant failed to provide a report of his expert to the State despite repeated requests, orders by the court, and extensions of time to produce the report. The trial judge also found that the expert’s testimony was irrelevant. In State v. McDonald, 191 N.C. App. 782 (2008), the court upheld the trial court’s exclusion of two of four defenses for the defendant’s failure to give any notice of defenses despite repeated motions by the State. The defendant’s counsel, who had substituted into the case, professed not to have been served with any of the motions, but the State produced four or five motions, some of which had been served on counsel. The court found that the two excluded defenses would have required substantial, unanticipated preparation by the State. In State v. Gillespie, 180 N.C. App. 514 (2006), aff’d as modified, 362 N.C. 150 (2008), the Court of Appeals found that the preclusion sanction imposed against the defendant exceeded constitutional limits, but on appeal the Supreme Court reversed the sanction on statutory grounds and found that it was unnecessary for the Court of Appeals to have reached the constitutional issues.
Some North Carolina decisions have upheld preclusion sanctions for what appear to be lesser violations, but the results may be explainable by other aspects of those cases. See State v. Pender, ___ N.C. App. ___, 720 S.E.2d 836 (2012) (defendant not entitled to jury instruction on involuntary manslaughter based on imperfect self-defense where defendant did not provide State with notice of intent to assert self-defense; appellate court concluded in alternative that evidence was insufficient to support an instruction so any error in precluding defense was harmless); see also State v Leyva, 181 N.C. App. 491 (2007) (trial court did not abuse discretion in denying defendant’s request to allow him to call expert on reliability of confidential informants whom defendant failed to include on witness list; appellate court rejected defendant’s claim that he needed expert because of officers’ testimony about reliability of informant, finding that potential testimony was not required by interest of justice).
Ultimately, the best protection against discovery sanctions for both the defendant and the State is to use their best efforts to comply with discovery requirements. The cases suggest an additional caution for defense counsel. If the trial court is considering discovery sanctions against the defendant, defense counsel should raise any constitutional issues with the trial court; otherwise, the appellate court may decline to consider those issues on appeal. See State v. McDonald, 191 N.C. App. at 785 (so ruling).
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 for impaired driving.
Jory Marino was pulled over by a Pinehurst police officer for speeding in March 2009. He subsequently was arrested for impaired driving and submitted to a breath test on the Intoxilyzer EC/IR II at the Pinehurst Police Department. His first and second breath samples registered alcohol concentrations of .11 and .10, respectively.
According to Marino’s brief to the court of appeals, he pled not guilty in district court “but stipulated sufficient evidence to adjudicate guilt,” and was found guilty. Marino then immediately appealed to superior court for trial de novo. See G.S. 15A-1431(b). In superior court, Marino filed a motion seeking an order that the Intoximeter source code was material, relevant and necessary for his defense. The purpose of this latter motion apparently was to facilitate issuance of a subpoena ordering Intoximeters, Inc., a Missouri company, to produce the source code. The State opposed the motion. The trial court preliminarily ordered the State to provide the defendant with “‘all downloaded and non-downloaded data in its possession that was generated from [the] Intoximeter [used to analyze defendant’s breath.],’” and ultimately denied the defendant’s motion for an order finding the Intoximeter source code material.
The defendant was convicted at trial. The jury returned a special verdict finding the defendant guilty under both the appreciable impairment and per se impairment prongs of G.S. 20-138.1(a).
Defendant appealed, arguing that, among other errors, the trial court erred in denying his motion to examine the Intoximeter source code.
No error, said the court of appeals. The appellate court rejected Marino’s argument that he was entitled to the source code under Brady v. Maryland, 373 U.S. 83 (1963). The court reasoned that the defendant failed to show the source code to be favorable to his case or material to guilt or punishment. Instead, the court noted that the defendant sought to examine the source code “in the hopes that it will be exculpatory in nature or will lead to exculpatory material.” Given that the defendant failed to show discrepancies in the Intoximeter results, the court characterized the materiality of the source code as “speculative at best.” Moreover, given that the defendant was convicted under both prongs of impairment, he failed to show a reasonable possibility that having the source code would have affected the outcome of his case. The court also rejected the defendant’s argument that he had a Sixth Amendment right to examine the Intoximeter source code, declining the defendant’s invitation to so extend the Supreme Court’s confrontation clause jurisprudence.
The court of appeals then addressed a defendant’s right to discovery generally when a misdemeanor conviction is appealed for trial de novo in superior court. The court began by noting that, with the exception of Brady material, a defendant has no constitutional right to discovery in criminal cases. Instead, the discovery right is purely statutory. The discovery provisions of the Criminal Procedure Act apply only in cases within the original jurisdiction of the superior court. See G.S. 15A-901. Because original jurisdiction for misdemeanor criminal actions lies in district rather than superior court (subject to a few exceptions not relevant here), a defendant charged with driving while impaired or any other misdemeanor offense is not entitled to statutory discovery. The court rejected the defendant’s argument that his due process rights were violated by the provisions of G.S. 15A-901 that limit discovery to cases originating in superior court.
For its part, the State sought a ruling that the trial court exceeded its authority and erroneously granted discovery when it ordered the State to provide all data generated by the Intoximeter on which the defendant was tested. The court refused to so hold on the basis that the State “voluntarily complied” with the order.
Source Code Significance.
Marino makes clear that the Intoximeter source code is not material and exculpatory in every case in which a defendant is charged with impaired driving based on a breath-alcohol concentration of .08 or more. The court’s holding does not, however, foreclose a defendant from establishing that such source code is material and exculpatory and thus discoverable under Brady by making some additional showing. For example, a defendant who demonstrates otherwise unexplained discrepancies in the results of multiple breath tests or a discrepancy between blood and breath testing of the same individual near the same point in time, might be able to establish a constitutional right to the source code. Likewise, a defendant charged with impaired driving in a case in which she allegedly refused testing might, upon a foundational showing of inconsistent outcomes, be able to establish a right to the source code. Cf. In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525 (Minn. 2012) (discussed here).
Discovery in Misdemeanor Cases.
Defendants not entitled to statutory discovery (that is to say, defendants charged with misdemeanors in district court) frequently use the subpoena power in G.S. 15A-802 to obtain documentary evidence in advance of trial. Those subpoenas sometimes are issued to law enforcement agencies, seeking items like the videotaped recording of a traffic stop. Unlike the proprietary source code sought by Marino, which apparently was exclusively possessed by the third-party manufacturer, this is the type of information that, were the case a felony, would be discoverable.
The Marino court emphasized that defendants charged with misdemeanors are “not entitled to statutory discovery,” and have “no statutory right to pretrial discovery.” Yet application of G.S. 15A-802 in the manner mentioned above effectively affords a defendant discovery, albeit by a different name. Marino dodged the issue of whether a defendant might obtain otherwise undiscoverable information through a different avenue, refusing to hold that — or even analyze whether — the trial court erred by ordering the State to produce data from the Intoximeter on which the defendant was tested.
Since Marino doesn’t clarify the relationship between the subpoena power and the discovery rules, I’ll ask you practitioners to tell me how it works in the real world. Does the subpoena power effectively provide discovery in misdemeanor prosecutions?
For a variety of reasons, I’ve spent some time recently looking at expert discovery in criminal cases. I thought I’d put together a short summary of the law.
The discovery statutes impose identical obligations on the parties regarding their experts. Each side must give notice to the other of any expert witnesses that it “reasonably expects to call.” The witness must prepare, and the party must disclose, a “report of the results of any examinations or tests conducted by the expert.” The party must also disclose “the expert’s curriculum vitae, the expert’s opinion, and the underlying basis for that opinion.” This must be done “within a reasonable time prior to trial, as specified by the court.” G.S. 15A-903(a)(2) (state); G.S. 15A-905(c)(2) (defense).
Several issues may arise regarding expert discovery. The first concerns timing. Often, a judge will enter a scheduling order mandating the exchange of expert discovery by a certain date. Absent such an order, what is a “reasonable time prior to trial”? The leading case is State v. Cook, 362 N.C. 285 (2008), a second-degree murder case arising out of an impaired driving accident. The state retained an expert to perform a retrograde analysis of the defendant’s blood alcohol content. The witness completed his report five weeks prior to trial, but the state only identified the expert and provided his CV five days (three working days) before trial, and did not provide his report until three days (one working day) prior to trial. The defendant sought a continuance based on the late disclosure, but the trial court denied the motion. The state supreme court eventually reviewed the case, and held that the trial court had erred, though it found the error to have been harmless. The court found that the defendant was unfairly surprised by the timing of the disclosure, because he “had just a weekend to find his own expert in this field and to decide whether to call such a witness to counter the State’s evidence.” Thus, Cook suggests that disclosure just a few days before trial may be inadequate, and that the adequacy of discovery should be measured by whether the discovery provides sufficient notice to prevent surprise and to allow the opposing party to prepare to meet the evidence in question. See also generally State v. Greene, 2010 WL 3465328 (N.C. Ct. App. Sept. 7, 2010) (unpublished) (state’s disclosure of expert witnesses during jury selection was untimely, but two-day continuance to allow defendant to prepare was sufficient remedy).
The second issue that arises frequently with respect to experts is how much detail a party must provide when describing the expert’s opinion and its basis. Few, if any, North Carolina cases speak directly to this issue. (There’s an interesting body of federal cases on point, but the cases don’t all agree on the proper analysis, so I don’t think that they provide much guidance, in the end.) However, the courts’ emphasis on preventing unfair surprise suggests that the disclosure must provide enough detail to allow the opposing party to prepare to meet the expert’s testimony, whether by cross examination or by presenting an expert of its own.
Finally, issues may arise concerning the proper remedy for a violation of the expert discovery statutes. Several options are available under G.S. 15A-910, including granting a continuance to allow the surprised party additional time to prepare; prohibiting the introduction of the evidence in question; or granting a mistrial or even a dismissal. However, when the violation is due to the conduct of an expert – rather than a party – the court’s options are limited by State v. Gillespie, 362 N.C. 150 (2008). In Gillespie, the trial judge ordered the parties to exchange reports from their mental health experts two weeks before trial. The defendants’ experts failed to produce their reports in a timely fashion, so the trial judge sanctioned the defendant by prohibiting him from calling the experts. On review, the supreme court ordered a new trial, ruling that G.S. 15A-910 only allows the court to sanction parties for their own discovery violations, not for violations committed by third parties, which is how it viewed the defendants’ experts.
If there are other recurrent issues concerning expert discovery, I’d like to know about them. I’m writing something more formal on the subject, and your feedback would help me improve that product.
The United States Supreme Court decided Connick v. Thompson yesterday. In a nutshell, the plaintiff, John Thompson, spent 18 years in prison as a result of a Brady violation. After he was exonerated, he sued the district attorney’s office, claiming that the office failed to train prosecutors adequately about their Brady obligations. A jury agreed and awarded him $14 million. The Supreme Court reversed, holding that district attorneys don’t have an obligation to train their employees about Brady unless they are aware of a pattern of Brady violations. The case is interesting in its own right, and it may have some bearing on the discovery reforms currently under consideration at the General Assembly.
From the Court’s syllabus, here are the facts:
[T]he Orleans Parish District Attorney’s Office concedes that, in prosecuting . . . Thompson for attempted armed robbery, prosecutors violated Brady . . . by failing to disclose a crime lab report. [The perpetrator left blood on one of the victims’ pants. The report stated that the blood was type B. Thompson is a different blood type, though the trial prosecutor may not have known that, at least initially.] Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney’s office under 42 U.S.C. § 1983, alleging, inter alia, that the Brady violation was caused by the office’s deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney’s office liable for failure to train and awarded Thompson damages.
The evidence at trial appears to have included the following.
- The office did no formal training regarding Brady.
- Prosecutors in the office were nonetheless generally aware of Brady.
- Office policy was to turn crime lab reports over to the defense.
- Prosecutors in the office disagreed after the fact about whether the crime lab report in this case was Brady material absent knowledge of Thompson’s blood type.
The jury determined that the office had no official policy endorsing Brady violations, but that the district attorney was liable for failing to train prosecutors about Brady. The district court upheld the verdict over the district attorney’s objection that “he could not have been deliberately indifferent to an obvious need for . . . Brady training because there was no evidence that he was aware of a pattern of similar Brady violations.” The trial court ruled that the need for training was so obvious that Thompson wasn’t required to show a pattern of violations. The Fifth Circuit, en banc, affirmed en by an evenly divided court. The judges split over the crucial question of whether a pattern of violations must be shown before training is a constitutional imperative.
The Supreme Court likewise divided on the issue – but not evenly. Justice Thomas wrote the Court’s opinion, joined by the Chief Justice and Justices Scalia, Kennedy, and Alito. Justice Ginsburg dissented from the bench, joined by the remaining three Justices.
Justice Thomas noted that liability under section 1983 occurs only when constitutional rights are violated by the “official policy” of a government entity, and that a failure to train employees can amount to such a policy only when the failure shows a “deliberate indifference” to the rights of the people with whom the employees may come into contact. Ordinarily, a showing of deliberate indifference requires a showing of a pattern of rights violations. Though Thompson pointed to at least four other Brady violations in the ten years preceding his robbery trial, he did not contend that this showed a pattern, and the Court stated that the other violations were not similar to the one in Thompson’s case because they did not involve scientific evidence.
Instead, Thompson contended that the need for training was so obvious that no showing of a pattern of violations was necessary. The Court disagreed, noting that all attorneys are trained, licensed, and subject to continuing education requirements, and that young prosecutors in the office in question were mentored and supervised by more senior lawyers. In short, “[p]rosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain,” so the district attorney had no reason to suspect that Brady violations would be widespread without training. Thus, civil liability was foreclosed.
The majority opinion and the concurrence suggest that Thompson may also have failed to establish causation. That is, they intimate that more training wouldn’t have prevented the Brady violation in this case. (Justices Scalia and Alito actually believe that “[t]here was probably no Brady violation at all” when the prosecutor initially failed to disclose the report, from which it follows that more training about Brady wouldn’t have changed anything.) That’s an interesting issue, but it isn’t at the heart of the opinion so I won’t dig into it.
The dissent argues that the facts of Thompson’s case are so egregious that, in effect, they establish a pattern of misconduct by themselves: “Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure.” It also contends that section 1983 liability is essential to motivate compliance with Brady.
To sum up, the case is good news for district attorneys, who can’t be held liable for failure to train their assistants about Brady absent a pattern of violations.
I mentioned at the outset that there may be a connection to H408, the proposed legislation that would limit prosecutors’ statutory discovery obligations to the contents of their own files, as opposed to the files of “all law enforcement and prosecutorial agencies” involved in the case, as G.S. 15A-903 currently requires. An AP article about the bill is here. Proponents argue that under current law, prosecutors may unfairly be held responsible for discovery violations when officers fail to provide prosecutors with their complete files. So perhaps one could argue that Connick, by setting a high threshold for civil suits against district attorneys, removes some of the motivation for H408. But my sense is that the point of H408 isn’t to limit civil liability – section 1983 claims must be predicated on constitutional violations, after all, and H408 doesn’t change prosecutors’ constitutional obligations – but rather is to limit the exposure of line prosecutors to judicial sanctions and State Bar discipline. And Connick doesn’t bear on these concerns. (None of the foregoing should be read as support for, or opposition to, H408. As with other policy proposals, the School of Government takes no position on H408.)
As always, if you have thoughts about the case or about the connection between the case and the pending legislation, please post a comment.
Suppose that both the local police and the federal Drug Enforcement Administration suspect that Derek is selling drugs. The police are a step ahead, and they arrest Derek and charge him before the federal authorities are able to do so. Derek’s lawyer asks the prosecutor to provide discovery and argues that because the DEA was “involved in the investigation of the crimes committed,” the state is required to produce the DEA’s file along with the police file. G.S. 15A-903. Is he right?
Generally, no. The state must produce “only those matters in its possession.” State v. Thompson, 187 N.C. App. 341 (2007). The contents of the DEA file are not within the state’s control, and it therefore cannot be required to produce them. I’m not aware of a case on point in North Carolina, but the cases elsewhere are uniform. See, e.g., Caplan v. State, 23 So.3d 1230 (Fla. Ct. App. 4th Dist. 2009) (“[T]he state could not produce [federal investigative reports] because it did not have the reports in its control.”); People v. Santorelli, 741 N.E.2d 493 (N.Y. 2000) (“[T]he People cannot be charged with failure to disclose materials they themselves could not obtain from law enforcement officers answerable to another sovereign.”); Wade v. State, 966 P.2d 160 (Nev. 1998) (“the State was not in a position of authority to order the federal DEA, an entity that did not act as an agent of the State prosecution, to cooperate” in providing discovery); Ferguson v. State, 487 S.E.2d 467 (Ga. Ct. App. 1997) (“there was no evidence that the FBI or any of its agents worked for or was subject to the control or authority of the State prosecutor,” so knowledge possessed by federal agents could not be imputed to state prosecutor).
There is an exception to this rule, however. If the state and federal authorities worked together on the investigation, then the state likely must produce the combined file. United States v. Reyeros, 537 F.3d 270 (3rd Cir. 2008) (whether a federal prosecutor is responsible for information in a state agency’s files depends on whether the federal authorities are controlling, or working as a team with, the state agency, and on whether the state agency’s files are readily accessible to the federal prosecutor); United States v. Beers, 189 F.3d 1297 (10th Cir. 1999) (similar); United States v. Antone, 603 F.2d 566 (5th Cir.1979) (where “the two governments, state and federal, pooled their investigative energies,” a federal prosecutor was responsible for material in the state officers’ files).
If there’s room for doubt about whether the cooperation between the state and federal authorities was close enough to justify holding the state responsible for material in a federal agency’s file, the state prosecutor should consider making a formal request for the material. If the request is granted, the material can be produced in discovery. If it is denied, that will bolster the state’s argument that it should not be held responsible for the material.