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. [...]
Faculty Coordinators
