A Rare Opinion on Criminal Discovery in North Carolina

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. The early days. North Carolina adopted its first criminal discovery statutes in 1973 as part of Chapter 15A of the General Statutes, which overhauled the state’s criminal procedure. These early criminal discovery statutes entitled the defendant to narrow categories of information only, such as his or her own statements and documents intended for use by the prosecution at trial. The defendant had no statutory right to information outside those categories, such as police reports, witness statements until the witness testified, and other investigative materials. Some prosecutors had “open-file” policies, allowing defendants access to information beyond the statutory categories, but their policies varied. The prosecution also had, and continues to have, a constitutional obligation under the Due Process Clause to disclose evidence considered to be material and exculpatory. See Brady v. Maryland, 373 U.S. 83 (1963). Although the requirement to produce Brady material is a significant protection for the defense, the U.S. Supreme Court has recognized that it is “inevitably imprecise.” U.S. v. Agurs, 427 U.S. 97, 108 (1976). Individual prosecutors bear the initial responsibility [...]