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Discovery Abuse

Discovery Abuse

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Published by sigmarick
Position paper regarding abuse of the discovery process
Position paper regarding abuse of the discovery process

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Published by: sigmarick on Nov 27, 2008
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09/14/2010

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DISCOVERY ABUSE IN THE AGE OF OPEN-FILE DISCOVERYThomas K. MaherCenter for Death Penalty LitigationDurham, N.C.We now litigate in the age of “open-file discovery.” Under 15A-903,defendants should seldom, if ever, face a surprise at trial. The philosophy isthat defendants should go into trial knowing the evidence upon which theState will rely in seeking a conviction, and be prepared to meet thatevidence. We also litigate in the post-Nifong era, in which one would hopethat prosecutors would comply with both the letter and spirit of the law ondiscovery, if only out of a sense of self-preservation.The good news is that most prosecutors and law-enforcement officersare honest and professional, and most cases are resolved without ambush bythe prosecution. That good news, however, does not mean that discoveryabuse is a thing of the past. Cases are still tried without all of thediscoverable information being turned over; sometimes by neglect andsometimes by design. Counsel representing a citizen charged with a crimecannot simply assume that all of the discovery is provided. You must stillwork to ensure that your client receives all of the information to which theyare entitled.
 
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A.
 
What the Open File Should Contain
15A-903 contains the key provisions setting forth the substance of adefendant’s right to open file discovery; in essence, it defines what the “file”should contain. Specifically, the State has the obligation to::(1) Make available to the defendant the complete files of all lawenforcement and prosecutorial agencies involved in theinvestigation of the crimes committed or the prosecution of thedefendant. The term "file" includes the defendant's statements,the codefendants' statements, witness statements, investigatingofficers' notes, results of tests and examinations, or any othermatter or evidence obtained during the investigation of theoffenses alleged to have been committed by the defendant. Theterm "prosecutorial agency" includes any public or privateentity that obtains information on behalf of a law enforcementagency or prosecutor in connection with the investigation of thecrimes committed or the prosecution of the defendant. Oralstatements shall be in written or recorded form, except that oralstatements made by a witness to a prosecuting attorney outsidethe presence of a law enforcement officer or investigatorialassistant shall not be required to be in written or recorded formunless there is significantly new or different information in theoral statement from a prior statement made by the witness. Thedefendant shall have the right to inspect and copy orphotograph any materials contained therein and, underappropriate safeguards, to inspect, examine, and test anyphysical evidence or sample contained therein.(2) Give notice to the defendant of any expert witnesses that theState reasonably expects to call as a witness at trial. Each suchwitness shall prepare, and the State shall furnish to thedefendant, a report of the results of any examinations or testsconducted by the expert. The State shall also furnish to thedefendant the expert's curriculum vitae, the expert's opinion,and the underlying basis for that opinion. The State shall givethe notice and furnish the materials required by this subsectionwithin a reasonable time prior to trial, as specified by the court
 
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The statutory right to discovery is intentionally broad. The purpose of the discovery statute is to protect a defendant from unfair surprise by theintroduction of evidence that he cannot anticipate.
State v. Moncree,
655S.E.2d 464 (N.C. App. 2008). Indeed, the Court of Appeals in
 Moncree
 recognized that the failure of a district attorney to provide the requireddiscovery “erodes the public trust not only in district attorneys but in anypublic official.” 655 S.E.2d at 468.The Court of Appeals has recently had to remind prosecutors of thebreadth of the statute. In
State v. Dunn
, 154 N.C. App. 1, 571 S.E.2d 650(2002), Defendant was charged with the sale of heroin. A significant issuewas whether the material in fact was heroin. Prior to trial, Defendantunsuccessfully attempted to obtain documentation necessary to challenge theSBI’s analysis of the substance.Defendant filed a Motion for Discovery on 28 March2000 requesting documents from SBI agents who testedthe substance bought from defendant. He requested“access to and a copy of all case notes ... describing,without limitation, the details of the samples received,and the condition thereof, as well as the full experimentalrecords of the test(s) performed.”
*5
Defendant alsoasked for laboratory protocol documents, any reportsdocumenting “false positives” in SBI laboratory results,and information about the credentials of the individualswho tested the substance on behalf of the State. Elevenpages of laboratory notes from the SBI are included inthe record. The record contains no reports concerningfalse positives at the SBI laboratory, laboratory protocol

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