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

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 [...]