Expert Discovery

Tag Archives: discovery

Expert Discovery

Posted on August 10, 2011 by Jeff Welty

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 Sept. 7, 2010) (unpublished) (state’s disclosure of expert witnesses during jury selection was untimely, but two-day continuance to allow defendant to prepare was sufficient remedy).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.

Category: Procedure, Uncategorized | Tags: discovery, expert testimony, expert witnesses

Prosecutors’ Civil Liability for Brady Violations

Posted on March 30, 2011 by Jeff Welty

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.

Category: Uncategorized | Tags: brady, civil liability, discovery, prosecutors

Discovery and Separate Sovereigns

Posted on August 4, 2010 by Jeff Welty

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.

Category: Procedure, Uncategorized | Tags: discovery, federal, sovereigns

Discovery in Child Pornography Cases

Posted on June 14, 2010 by Jeff Welty

There’s a recurrent discovery issue in child pornography cases. Generally, it goes like this: the defendant is arrested and charged with a child pornography offense. The prosecution contends that the defendant’s computer contains images of child pornography. The defendant retains a computer expert to examine his computer, hoping to show that the images were downloaded inadvertently, or were downloaded by someone else. The expert requests a copy of the defendant’s hard drive so that the expert can analyze it. The prosecution refuses to provide a copy on the grounds that doing so would amount to distributing child pornography to the expert, so the defendant files a motion asking the court to order the prosecution to provide a copy of the hard drive.

In federal cases, there is a statute that guides the resolution of this issue. Under 18 U.S.C. § 3509(m), “a court shall deny . . . any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography . . . so long as the Government makes the property or material reasonably available to the defendant.” Evidence is “reasonably available” if “the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.” The statute has been upheld against a variety of constitutional challenges. United States v. Shrake, 515 F.3d 743 (7th Cir. 2008); United States v. Spivack, 528 F.Supp.2d 103 (E.D.N.Y. 2007) (collecting cases).

Litigation has focused on what constitutes an “ample opportunity” to review and analyze evidence. Among the leading opinions in this area is United States v. Flinn, 521 F.Supp.2d 1097 (E.D. Ca. 2007), which states:

An ample opportunity to forensically examine seized computer items means an examination whereby the government can supply reasonably up-to-date tools (hardware and software) and facilities such that a defendant can construct a reasonable, available forensic defense, if one is available at all, and whereby the analysis will not be impeached because it was not supported by the proper hardware or software. An ample opportunity will permit a defense expert to utilize his or her hardware or software. An ample opportunity also requires that the analysis be performed in a situation where attorney-client privilege and work product will not be easily, accidentally exposed to the government, and in a facility which is open to the defense at its request during normal working hours, and to the extent feasible, during non-working hours.

I am aware of only one published case in which a court has ruled that the government failed to give the defense team “ample opportunity” to analyze the defendant’s computer. In United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007), a defendant argued that he needed a team of experts to analyze video files on his computer to determine whether the files involved real children or virtual representations of children. The defendant’s experts testified that conducting the analysis at a federal facility would involve a week of moving fragile and expensive equipment and a cost of over half a million dollars. Based on the defendant’s showing and the specific facts of the case, the judge ordered that a copy of the defendant’s hard drive be given to the defense team, pursuant to a protective order. Aside from Knellinger, however, courts have generally denied defendants’ requests for copies of digital evidence in child pornography cases, finding that such evidence can be analyzed adequately in a government facility.

But that’s federal court. Section 3509(m) doesn’t apply to state cases: it refers to the Federal Rules of Criminal Procedure and describes the prosecution as the “Government.” State v. Allen, 2009 WL 348555 (Tenn. Ct. Crim. App. Feb. 12, 2007) (unpublished) (“Section 3509(m) does not apply to proceedings in Tennessee state courts.”) Nor is there any other specific statutory provision in North Carolina concerning how child pornography should be handled in discovery.

That leaves us back at square one. Under the general provisions of G.S. 15A-903, images or videos alleged to contain child pornography clearly count as “matter[s] or evidence obtained during the investigation” of the child pornography defendant, and so are presumptively available to be copied by the defense. Yet some prosecutors worry that copying such evidence violates state and federal child pornography laws. What to do?

I’ll start by suggesting that the concern about violating the law by distributing child pornography during discovery may be a bit overblown. By that reasoning, the prosecutor in every child pornography case violates the law by possessing the child pornography, and the prosecutor violates the law during every child pornography trial by distributing the child pornography to the court clerk, the judge, and the jurors. Likewise, the prosecutor in a drug case would be liable for possessing the drugs introduced as evidence, and for distributing the drugs to the clerk during the trial. I assume that there’s an implicit “official duty” exemption that would preclude prosecution in such circumstances, and I’m not aware of a single prosecution based on similar facts.

Nonetheless, I can understand a prosecutor not being enthusiastic about making additional copies of child pornography. (And frankly, if I were a defense lawyer, I wouldn’t be too excited to receive them. Consider United States v. Flynn, __ F.Supp.2d __, 2010 WL 1782157 (D.S.D. Apr. 28, 2010), where an attorney being prosecuted for possessing child pornography claims that he possessed the images in connection with his work.)

The solution, it seems to me, is to move for a protective order under G.S. 15A-908, which allows a court, upon a finding of “good cause,” to enter any appropriate order regarding discovery. Presumably, the court’s discretion includes the authority to enter an order along the lines of what section 3509(m) requires in federal court: that the defendant be given “ample opportunity” to inspect and analyze the digital evidence at a law enforcement facility, but not be given a copy, absent special circumstances that require the making of a copy in a particular case. Although I’m not aware of a North Carolina case on point, cases in other states have generally recognized some discretion to limit defense access to child pornography. Cf. State v. Brady, 894 N.E. 2d 671 (Ohio 2008) (proper to limit defense access to child pornography evidence to the state’s computer system); State v. Bowler, 772 N.W.2d 666 (Wisc. Ct. App. 2009) (court has the discretion to order copying or to forbid it). But cf. State v. Johnson, 2010 WL 1424369 (Ariz. Ct. App. Div.1 Apr. 8, 2010) (unpublished) (affirming dismissal of charges after defendant provided valid reasons for needing a copy of the digital evidence yet the agency with custody of the evidence refused to produce it). It may be useful to think of digital evidence of this type as analogous to controlled substances seized from the defendant — the defendant should be granted reasonable access to drug evidence for the purpose of analysis and testing, but need not be allowed to take the evidence off the premises of a law enforcement facility. As an aside, the SBI, and probably many other law enforcement agencies, have facilities designed for defendants to use to review digital evidence in privacy.

Category: Procedure, Uncategorized | Tags: child pornography, computers, digital evidence, discovery, protective orders

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

Posted on March 10, 2010 by Jeff Welty

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.

Category: Procedure, Uncategorized | Tags: brady, discovery, ethics, witnesses

Must the State Produce Its Witnesses’ Criminal Records in Discovery?

Posted on February 17, 2010 by Jeff Welty

I’ve been asked several times whether the state is required to provide the defense with the criminal record of the state’s witnesses.

There are two possible justifications for such a requirement. First, one could argue that disclosure is mandated by the discovery statutes, G.S. 15A-901 et seq. Second, one could argue that disclosure is required by Brady v. Maryland, 373 U.S. 83 (1963), which generally holds that the state must produce any exculpatory, mitigating, or impeachment evidence to the defense. These arguments have failed to persuade our appellate courts, which have repeatedly held that a defendant is not entitled to this information. See, e.g., State v. Williams, 355 N.C. 501, 543-44 (2002) (citing cases); State v. Bruce, 315 N.C. 273 (1985).

I don’t think the issue is quite as settled as it seems, though, either as a statutory matter or as a constitutional one. Starting with the statutory analysis, Williams and virtually all the other cases in this area were decided before the enactment of open file discovery in 2004. S.L. 2004-154. Under the new version of G.S. 15A-903, the state must produce “the complete files of all law enforcement and prosecutorial agencies” involved in the case. Based on that language, when a witness’s record has been printed out or otherwise made part of the case file, it must be produced in discovery.

Moving to the constitutional issue, the reason why many courts have held that the state is not required to produce its’ witnesses’ criminal records is that those records are equally available to the defense. I should note that courts don’t uniformly accept this argument. Compare, e.g., Wilson v. Beard, 589 F.3d 651 (3rd Cir. 2009) (“We have clearly held that the prosecution bears the burden of disclosing to the defense a prosecution witness’s criminal record, whether or not an explicit request has been made by defense counsel,” notwithstanding the public availability of the record), and United States v. Price, 566 F.3d 900 (9th Cir. 2009) (holding that the prosecution must produce its’ witnesses’ criminal records, prison records, and other information relevant to credibility), with, e.g., Bell v. Bell, 512 F.3d 223 (6th Cir. 2008) (en banc) (because the state’s witness’s “sentencing records were available to” the defendant and the public, the prosecution’s failure to produce them did not violate Brady), and United States v. Jones, 34 F.3d 596 (8th Cir. 1994) (where “information about [a witness’s] criminal record . . . was accessible to [the defendant’s] attorney” as a public record, “the prosecution does not violate Brady by not discovering and disclosing the information”).

In North Carolina, it’s reasonable to interpret the Williams line of cases as resolving this issue in the state’s favor as a general matter. Cf. also State v. Jackson, 309 N.C. 26 (1983) (rejecting Brady claim in part because witnesses’ statements “were incorporated into affidavits used to support the state’s application for search warrants . . . . As these warrants were of public record, defendant could have examined them before trial.”). Even so, however, there may be limited circumstances in which Brady requires the state to disclose information about witnesses’ records. For example, in Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999), the Seventh Circuit held that the state’s failure to disclose the criminal record of one of its witnesses violated Brady. The Crivens court stated that under most circumstances, a witness’s criminal record is available to the defendant — for example, by asking the witness on the stand about his record — but noted that in that case, the witness’s record was under an alias, both rendering the record itself inaccessible to the defendant and suggesting that the witness might have lied about his record if asked. The general point is that when a prosecutor knows that a witness has a criminal record, but has reason to believe that the information cannot easily be located by the defense, the prosecutor should disclose it.

Another situation where this general rule might apply is when a prosecutor learns that a witness has a criminal record in another state. I doubt that a prosecutor can generally be charged with knowledge of witnesses’ out-of-state convictions, since the records of those convictions are in the possession of another sovereign. Queen v. State, 198 P.3d 731 (Idaho App. 2008) (state prosecutor not responsible for information about its witnesses’ criminal records that was available through NCIC, as NCIC is a federal database and “the record does not reflect that the FBI played any role in investigating or prosecuting” the defendant). However, if a prosecutor learns of such a conviction, he or she should probably disclose it given that defendants have limited or no access to out-of-state records.

I’d be interested to hear about how this issue is handled around the state, and of course, chime in if you disagree.

Category: Procedure, Uncategorized | Tags: brady, criminal records, discovery, witnesses

News Roundup

Posted on April 17, 2009 by Jeff Welty

I’ve been involved in the New Prosecutors’ School this week, but the flow of criminal law news has been constant.

First, the News and Observer had an interesting story yesterday, available here, about the use of protective orders under the discovery statute. The details are a little hazy, but it appears that a protective order was entered in a Durham murder case to protect the safety of a witness. The witness’s statements seem to have contained exculpatory information, creating a conflict between the protective order, which allowed the statement to be withheld, and the state’s Brady obligations, which required the statement to be disclosed.

Second, the Constitution Project released a report arguing that, nationally, indigent defendants’ right to counsel is suffering from inadequate funding, excessive caseloads, and poorly organized indigent defense systems. The committee that issued the report was co-chaired by Rhoda Billings, former Chief Justice of the North Carolina Supreme Court, and School of Government professor John Rubin also contributed. The report’s available here. Interestingly, North Carolina has already adopted several of the measures recommended by the report, including creating a state agency to oversee indigent defense; as far as I could tell, the report’s main criticism that applies to North Carolina is that our public defenders are appointed by Senior Resident Superior Court Judges, arguably limiting their independence.

Third, the Obama administration just released some Justice Department memoranda authorizing the CIA to use waterboarding, sleep deprivation, stress positions, and other interrogation techniques with detainees. Story here. The author of the first memo, Jay Bybee, is now a federal court of appeals judge. But he’s also the subject of a DOJ ethics investigation, and some are calling for a criminal probe; he’s being represented, pro bono, by one of the nation’s largest law firms, as detailed here.

Finally, I’ll spare you a summary of the Domino’s pizza case from Conover. Suffice it to say that you can see more than you ever wanted to know about how certain employees prepared pizza on YouTube. Those employees are now facing felony charges as explained here.

Category: Uncategorized | Tags: brady, discovery, indigent defense, news, waterboarding

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