What Are Permissible Discovery Sanctions Against the Defendant?

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).