Durham County District Attorney’s Office

Policy on Disclosure of Giglio/Brady Material1

FINAL: August 2019

Contents

I. Scope and Purpose……………………………………………………………………………………………………………………………….1

II. Brady/Giglio Material Defined……………………………………………………………………………………………………………..2
III. Giglio Committee…………………………………………………….…………………………………………………………………….……6
IV. Duty to Inform the Committee of Brady/Giglio Materials……………………………………………………………….….7
V. Collection of Materials and Duty to Review………………………………………………………………………………………...8
VI. Disclosure to the Defense………………………………………………………………………………………………………….……….9
VII. Communication about Brady/Giglio Evidence with Outside Entities…………………………………………….….11
VIII. Admissibility of Brady/Giglio Evidence……………………………………………………………………………………………11
Addendum 1, Memorandum of Understanding between the District Attorney and Law Enforcement….12
Addendum 2, Worksheet for Determining the Duty to Disclose Unrelated Case Material……………………..15
Addendum 3, State’s Motion and Order for Production of Documents, In Camera Review, and Protective
Order……………………………………………………………………………………………………………………………………………….……17
Addendum 4, Sample Letter to Training and Standards…………………………………………………………………………20

I. Scope and Purpose

In our continued effort to promote the highest ethical standards and public confidence in the judicial
system, the Durham District Attorney’s Office has instituted a policy to ensure that Brady/Giglio material
is turned over to the defense in keeping with our constitutional and ethical duties. The policy is
intended to guide prosecutors in balancing two compelling interests: 1) complying with their duty to
disclose Brady/Giglio material to protect the rights of defendants to a fair trial, and 2) protecting the
privacy rights of law enforcement witnesses in their personnel files.2

1
Materials adopted with permission and with modifications from Giglio White Paper (Jan. 2019), by the North
Carolina Conference of District Attorneys Best Practices Committee
2
Law enforcement personnel files are confidential pursuant to N.C.G.S. § 160A-168, N.C.G.S. § 126-24, and
N.C.G.S. § 153A-98.

1
This policy does not address materials that the prosecution is required to provide pursuant to open file
discovery that relates to the investigation of the crimes committed, which is covered under N.C.G.S.
§15A-903. Rather, the policy addresses unrelated case material regarding officer or other government
witness misconduct which may be “evidence favorable to an accused.”3

II. Brady/Giglio Material Defined4

Prosecutors have a constitutional and ethical obligation to disclose to a defendant in a criminal case
evidence that is material and favorable to the accused.5 Favorable evidence includes not only evidence
that tends to exculpate the accused but also evidence that may impeach the credibility of a government
witness by, for example, showing bias, interest, or lack of credibility.6 This impeaching evidence is not
restricted to the officer’s or government witness’s actions in the case at bar; it also includes actions in
other cases and while off duty, referred to as unrelated case material.7 For example, if the officer was
convicted of fraud in the past, or was found to have been deceitful at work by telling his supervisor he
was at a professional conference when he was in fact scuba diving, the prosecution would not be
required to disclose the information pursuant to open file discovery statutes, but might be required to
disclose it under Giglio/Brady or Rule of Professional Conduct 3.8. The legal and ethical obligation that
the prosecution has to turn over unrelated case material that is favorable to the defense and could be
used to impeach law enforcement and other government witnesses is referred to as the Brady/Giglio
duty to disclose.

A prosecutor’s Brady/Giglio duty to disclose extends beyond what is actually in the prosecutor’s files
because a prosecutor has a “duty to learn” of favorable evidence known to others acting on the
government’s behalf in the case, including law enforcement officers.8 Thus, the Kyles “duty to learn”

3
Brady v. Maryland, 373 U.S. 83, 87 (1963).
4
See also North Carolina Criminal Law Blog https://nccriminallaw.sog.unc.edu/must-officers-prior-misconduct-be-
disclosed-in-discovery/ (May 8, 2012); https://nccriminallaw.sog.unc.edu/discovery-officers-text-messages/ (Jan.
8, 2018).
5
Brady, 373 U.S. 83; N.C. R. Prof. Cond. Rule 3.8.
6
Giglio v. United States, 405 U.S. 150, 154 (1972).
7
Id.
8
Kyles v. Whitley, 514 U.S. 419, 438 (1995).

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means that even an unknowing non-disclosure by a prosecutor can have the effect of overturning a
guilty verdict due to a Brady/Giglio violation.9

A Brady/Giglio violation occurs where the failure to disclose evidence to the defense deprives the
defendant of a fair trial.10 The term “trial” includes the sentencing phase of the trial.11 However, the
term trial does not extend to a guilty plea.12 Thus, in the context of Brady/Giglio requirements, a
defendant is deprived of a fair trial when it is reasonably probable that the failure to provide evidence to
the defense will affect the outcome of the case,13 or, stated another way, the failure to disclose the
evidence “could reasonably be taken to put the whole case in such a different light as to undermine the
confidence in the verdict.”14

While the U.S. Supreme Court has included non-disclosed, unrelated case material as a justification for
overturning a jury verdict, the Court has never addressed how far a prosecutor must go to learn of and
disclose unrelated case material.15 Also, while the lower federal courts have given some guidelines as to
how the Brady/Giglio court decisions apply to unrelated case material, “these guidelines do not settle
the question of how Brady applies to police personnel files.”16

The U.S. Justice Department’s policy manual advises that a “prosecutor generally will be able to obtain
all potential impeachment information directly from potential agency witnesses and/or affiants.”17 Thus
the official federal policy for the United States Attorneys comprising ninety-four districts and over 5,000
attorneys18 advises, in most cases, to simply “have a candid conversation with each potential agency

9
Brady, 373 U.S.at 83.
10
United States v. Bagley, 473 U.S. 667, 675 (1985).
11
Basden v. Lee, 290 F. 3d 602, 611 (4th Cir. 2002) (noting that “[i]n Brady itself, the U.S. Supreme Court expressly
stated that its holding applied not only to the suppression of materials at the guilt phase of a trial but also at the
punishment phase.”).
12
U.S. v. Zacarias Moussaoui, 591 F.3d 263, 285 (2010).
13
Bagley, 473 U.S. at 682.
14
Kyles, 514 U.S. at 435.
15
Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team,
67 Stan. L. Rev. 743, 749.
16
Id.
17
U.S. Attorney’s Manual § 9-5.100.
18
Dep’t of Justice, Office of the Inspector General, Audit Division, Resource Management of United States
Attorney’s Office [“Resource Management Report”], 1 (Audit Report 09-03, Nov. 2008).

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witness and/or affiant with whom they work” about potential impeachment information unrelated to
the case.19

In United States v. Robinson,20 the Fourth Circuit weighed in on the prosecution’s duty to learn of and
disclose unrelated case material. There, an undercover narcotics officer used drug buying money
inappropriately and failed to properly catalogue seized alcohol and drug evidence, not in the Robinson
case, but in other cases. This information came to light after defendant Robinson was convicted for
drug trafficking offenses based on undercover drug purchases that the offending officer had participated
in and testified about at trial. The court found that Robinson could have been convicted without the
testimony of the officer in question and refused Robinson’s request for a new trial despite the
defendant’s contention that the prosecution should have known about the misconduct. Again, in
Robinson’s case, there was no known information about the officers’ misconduct at the time of trial.
Rather, the misconduct was not discovered until after Robinson’s trial.

The Robinson opinion did not suggest that the prosecutors should have asked the offending officers
about Brady/Giglio material before putting the officers on the stand to testify. Instead, the court noted
that courts “have routinely refused to extend Brady’s constructive knowledge doctrine where doing so
would . . . require prosecutors to do full interviews and background checks on everyone who touched
the case.”21 Although prosecutors in Robinson’s case had no way of knowing about the conduct, the
court could have opined that the prosecutors should have at least asked the officers themselves about
unrelated police misconduct as the U.S. Justice Department’s policy advises. However, the Fourth
Circuit Court failed to extend the Brady/Giglio standard to unknown, unrelated case information.
Instead, the Court distinguished, “it is one thing to require prosecutors to inquire about whether police
have turned up exculpatory or impeachment evidence during their investigation. It is quite another to
require them, on pain of a possible retrial, to conduct disciplinary inquiries into the general conduct of
every officer working the case.”22

Current North Carolina state law echoes the finding in Robinson. In State v. Smith, the North Carolina
Supreme Court upheld the State’s refusal to look into a possible investigation of a law enforcement

19
U.S. Attorney’s Manual § 9-5.100.
20
United States v. Robinson, 627 F. 3d 941 (4th Cir. 2010).
21
Robinson, 627 F. 3d at 952.
22
Id.

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witness as well as the background of a civilian State’s witness, despite a defense request to do so.23 The
Court ruled that the State had not suppressed any material evidence in this case and had no duty to look
for this evidence. The Court explained that “the State is not required to conduct an independent
investigation to determine possible deficiencies suggested by defendant in State's evidence [because]
[s]uch exploration could result in time being wasted on frivolous fishing expeditions not necessary to the
State's prosecution of the charges against defendant.”24 The defendant's motion was, in the State
Supreme Court’s view, “nothing more than a fishing expedition for impeachment evidence.”25

While the Robinson court held that the defense request to look into the officer’s behavior, likely by
questioning the officer, was unnecessary and the Smith court deemed such a search a “fishing
expedition”, there is a split among the federal circuits on this issue. In a minority of federal jurisdictions,
U.S. Attorneys must search law enforcement personnel files upon receiving a defense request to do so.
However, because the Justice Department created a policy in 1991 to allow the defense to have access
to the personnel files of testifying federal law enforcement officers, the issue has not been litigated
much in federal court, and there has been no U.S. Supreme Court resolution of the issue to date.26

In addition to state and federal Courts, the North Carolina Bar also addresses the prosecution’s required
disclosure of evidence through the North Carolina Rules of Professional Conduct. Our Rules of
Professional Conduct broaden the Brady standard of “materially favorable to the accused” to “all
evidence or information known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense.”27 In one ethics opinion, the State Bar held that, “the prosecutor must disclose all
exculpatory evidence . . . whether or not the evidence presented or omitted is important enough, in the
context of all of the evidence presented at trial, to warrant a reversal of the conviction,” thus concluding
that “[a]n ethical violation can, and often will, be present even when due process is not violated.”28

23
State v. Smith, 337 N.C. 658 (1994)
24
Smith, 337 N.C. at 664 as quoted in “North Carolina Prosecutor’s Obligation to Disclose Evidence of Officer
Misconduct” Whitepaper by Shea Denning UNC School of Government, June 1, 2018.
25
Id.
26
Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution
Team, 67 Stan. L. Rev. 743, 760-761 (2015).
27
N.C. R. Prof. Cond. Rule 3.8.
28
North Carolina State Bar v. Brewer, 05 DHC 37 Reprimanded at 26 n. 9 (April 4, 2008).

5
The North Carolina Rules of Professional Conduct also require that prosecutors undertake a “reasonably
diligent inquiry” to discover such exculpatory evidence. However, the term “reasonably diligent inquiry”
is undefined by the Rules of Professional Conduct. Only the term “reasonable” is defined in section 1.0
of the Rules of Professional Conduct as, “’[r]easonable’ or ’reasonably’ when used in relation to conduct
by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.” Thus, North Carolina
prosecutors do not currently know how Kyles’s “duty to learn” differs from the State Bar’s obligation
that a prosecutor conduct a “reasonably diligent inquiry.”

In addition to protecting the due process rights of defendants and complying with the ethical
requirements of attorneys, prosecutors must also follow laws relating to the confidentiality of law
enforcement personnel files. Under the U.S. Supreme Court case of Pennsylvania v. Ritchie, prior to the
disclosure of privileged material, such as an officer’s personnel file, there must be a judicial finding that
the privileged information is materially favorable to the defense.29 The judge must decide what
information meets this standard by conducting an in camera review. The Supreme Court further held
that it is not appropriate for the court to turn over an entire privileged file to let the defense determine
what information in the file is material.30 In addition to the above federal law, prosecutors must also
follow specific North Carolina State provisions for employee information as laid out in N.C.G.S. § 160A-
168 (City Employees), N.C.G.S. § 126-24 (State Employees) and N.C.G.S. § 153A-98 (County
Employees). Failure to follow the state statutes regarding confidential employee information can result
in conviction for a misdemeanor and a $500 fine on the person who wrongly possesses employee
personnel information.

III. Giglio Committee

The District Attorney’s Office for Prosecutorial District 16 has formed a Giglio Committee to ensure
compliance with this policy and protect the privacy of State’s witnesses. Brenda Ford Harding leads it
and current members are Alyson Grine, Daniel Spiegel, and Michael Wallace. A decision to disclose or
not to disclose Brady/Giglio material must be made by a majority of the Committee members. District
Attorney Satana Deberry will resolve any stalemates.

29
Pennsylvania v. Ritchie, 480 U.S. 39, 54-61 (1987).
30
Ritchie 480 U.S. at 59.

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The committee does not have sole responsibility for ensuring that the Office complies Giglio/Brady and
RPC 3.8. Instead, every prosecutor and the staff member must play a role by assisting in the collection of
materials, regularly reviewing materials, disclosing materials to the Committee, and disclosing materials
to the defense when required by law, as described below.

The Committee shall be responsible for any changes to this policy, subject to approval by the District
Attorney.

IV. Duty to Inform the Committee of Brady/Giglio Materials

Upon learning of a credible allegation of misconduct involving a law enforcement employee or an expert
witness that may be subject to disclosure under Brady/Giglio, prosecutors and staff members shall
timely report this information in writing to the head of the Giglio Committee, Brenda Ford Harding.
Examples of material that warrant disclosure are:
1. Evidence of dishonesty that comes to light during any criminal trial which is more than a conflict
in testimony attributable to memory differences. This may include a prior statement that is
inconsistent with testimony, or a false report.
2. The receipt of information about internal or criminal investigation of a law enforcement officer
that may lead to pending charges.
3. Criminal convictions or pending criminal charges, whether local or out-of-state, other than
minor traffic violations.
4. Information that the law enforcement officer has been placed on administrative leave.
5. A judge’s written finding that the testimony of the law enforcement employee was not credible.
6. The receipt of information of possible biases or prejudices of an officer that might bear on his or
her truthfulness.
7. Knowledge about the officer that leads one to believe that the officer is dishonest or biased.
8. Evidence undermining an expert’s expertise, e.g., a false credential on the expert’s CV or
information that the expert has failed a certification exam.

Standard of Proof. While it is this Office’s intent to comply with all legal and ethical obligations
regarding the disclosure of unrelated case material, the prosecution has no obligation to communicate

7
preliminary, challenged or speculative information.31 Thus the evidence that alleges misconduct must
not be based on mere rumor, unverifiable hearsay or irresolvable conflicts in testimony resulting from
differing memories of the event. The standard of proof for disclosure of information shall be the
“substantial information” standard. “Substantial information” is defined as facially credible information
that might reasonably be deemed to have undermined confidence in a later conviction in which the law
enforcement employee is a witness. In sum, there must be substantial information of a triggering event
or sustained findings in an Internal Affairs (IA) investigation before unrelated case material rises to the
level of Brady/Giglio material.

The Committee may request a meeting with the individual who reports potential Brady/Giglio material
to assist in making a determination about whether the materials are in fact Brady/Giglio material, and
appropriate follow-up steps.

V. Collection of Materials and Duty to Review

Database in Common Drive. The Giglio Committee will maintain a searchable electronic database in the
common drive for the Office in a folder named “Giglio”. The information in the database will come from
a variety of sources, including law enforcement agencies and individual prosecutors who inform the
Committee about potential Brady/Giglio evidence.32 All District 16 prosecutors and staff members will
have access to this database for their review. However, only the head of the Giglio Committee should
make entries in the database.33 The database will indicate whether Brady/Giglio information exists
regarding a member of law enforcement or an expert witness such as a lab analyst. The database will
also indicate whether a determination has been made that the officer will no longer be called to testify
in District 16 as a result of his or her misconduct.

Routine Review. When a case is assigned to an ADA, she or he shall search the electronic database to
determine whether the investigating officer(s) have Giglio/Brady issues, and make a note in the case file

31
United States v. Agurs, 427 U.S. 97 at 109 (1976).
32
See Addendum 1, Memorandum of Understanding Between the District Attorney and Law Enforcement.
33
This screening function will help the Office to ensure that entries in the database meet the standard of proof
discussed above, and that we do not create a public record of matters that would otherwise be statutorily
protected personnel records or unsubstantiated rumors that may adversely affect an officer’s career. See, e.g.,
https://www.usatoday.com/in-depth/news/investigations/2019/04/24/usa-today-revealing-misconduct-records-
police-cops/3223984002/ (media obtained and publicized information from prosecutors’ offices and other sources
about officers’ records, some of which came from protected personnel records).

8
that the database was searched. If the officer or expert is named in the database, the prosecutor shall
review the internal Giglio file for that individual, which will be maintained by Brenda Ford Harding in a
secure location. Note: this internal file is not the official personnel or Internal Affairs file for the officer,
which shall be kept only at the law enforcement agency. Rather, the internal file shall contain
information such as news articles, records of criminal convictions, summaries that prosecutors have
prepared regarding instances of misconduct or dishonesty, and responses by agencies to our request for
Giglio information pursuant to the Memorandum of Understanding.34

The information in the Giglio files shall be accessed only for case related purposes. After reviewing the
file, the prosecutor will make a determination about whether Giglio/Brady material exists.35 The
prosecutor may also consult this policy, and scholarly materials such as the blog posts referenced in FN 7
above. If the ADA is uncertain as to whether disclosure is required, inquiry may be made to the Giglio
committee. In some instances, a member of the Giglio committee may seek a judge’s order to go to the
law enforcement agency to review the personnel or Internal Affairs file for the officer. The ADA should
check the database again prior to making a plea offer or arraigning the case, in case additional
investigative reports have come in revealing that additional officers played a role in the case, or in case
new information has been received regarding misconduct by an officer or expert involved in the case.

• A note on timing of disclosures: Brady/Giglio violation occurs where the failure to disclose
evidence to the defense deprives the defendant of a fair trial or sentencing hearing. Our policy is
conservative in that it requires disclosure prior to trial. As a matter of fundamental fairness, we
believe the defense should be aware of information that may affect the State’s ability to prove
the case during the plea negotiation stage and at preliminary hearings.

VI. Disclosure to the Defense

If Brady/Giglio materials exist, the ADA shall provide notice to the defense. The notice might read:
The prosecution has a duty to present all material, exculpatory evidence to the defense. See
Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Pursuant to

34
See Addendum 1, Memorandum of Understanding between the District Attorney and Law Enforcement.
35
See Addendum 2, Worksheet for Determining the Duty to Disclose Unrelated Case Material. Note that the same
officer misconduct may trigger disclosure in one case but not in another. For example, the officer’s investigation
may be peripheral in one case and central in another.

9
 this duty, I’m informing you of potential Brady/Giglio evidence in this case related to Durham
Police Officer Jane Jones.

If the materials are not statutorily protected personnel records,36 the ADA may include them with the
notice. For example, the ADA might include a public record such as a criminal conviction, a newspaper
article, or a memo in the internal file about a time when the officer was found to have testified
untruthfully. The ADA should also provide notice at this time if the officer is one who will no longer be
called to testify in any cases in District 16 pursuant to a decision by the Giglio committee. This
information will be included in the database in the common drive.

Following this disclosure, the defense attorney may file a motion requesting additional details. In light of
statutory protections for personnel records, defense requests for more information shall be referred to
the judge assigned to preside over the case at trial for the judge to decide whether to issue an order
granting the defense access to the law enforcement officer’s personnel file. Should the judge grant the
defense access to any personnel file, the ADA will request that access be in the form of an in camera
review by the judge and that any information released to the defense and prosecution be accompanied
by a protective order. In addition, the ADA will request that the personnel file be held in the court file
under seal.37 The ADA will also request a look-back period of ten years for personnel files, except when
the ADA is aware of Giglio evidence that took place longer ago.38

The materials reviewed and memoranda of conclusions shall be maintained by Brenda Ford Harding
within the Office in a secure location for purposes of complying with disclosure obligations in future
cases. The information in these files shall be accessed only for case related purposes, and only the
materials relevant to the particular case will be disclosed. These internal files are different from the
official personnel or Internal Affairs file for the officer, which shall be maintained only at the law
enforcement agency.

36
. Law enforcement personnel files are confidential under N.C.G.S. § 160A-168, N.C.G.S. § 126-24, and N.C.G.S. §
153A-98.
37
See Addendum 3, State’s Motion and Order for Production of Documents, In Camera Review, and Protective
Order.
38
This ten year “look back” period is consistent with North Carolina statutes regarding impeachment of a criminal
defendant. See N.C.G.S. § 8C-1, Rule 609.

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VII. Communication about Brady/Giglio Evidence with Outside Entities

In the event that an officer’s integrity has been compromised so much by his or her actions that a
decision is made that the officer will no longer be called to testify in District 16, the Giglio Committee
will convey this information to the officer and the head of the law enforcement agency. In some cases,
the Committee will also have an obligation to provide this information to the appropriate Standards
representative: the Sheriff’s Training and Standards representative or the Criminal Justice Training and
Standards representative, depending on the agency employing the law enforcement officer.39 However,
the Giglio Committee at the District Attorney’s Office will provide the officer an opportunity to be heard
prior to placing him or her on the “no call” roster and notifying the Sheriff’s Training and Standards
representative or the Criminal Justice Training and Standards representative.

Under N.C.G.S. § 160A-168, N.C.G.S. § 126-24, and N.C.G.S. § 153A-98, law enforcement personnel files
are confidential. Thus, individual ADAs and staff members should not communicate with the press or
outside organizations about personnel matters involving law enforcement officers, except for making
the disclosures required by law and this policy to the defense attorney in the case.

VIII. Admissibility of Brady/Giglio Evidence

Disclosure of Brady/Giglio evidence is not contingent upon the information being admissible at trial.
The District Attorney’s Office may, in some instances, concede that the State is required to disclose
information to the defense, but contest the admissibility of that information at trial. The ADA should
consider filing a motion in limine to exclude Brady/Giglio evidence where there is an argument that it is
not relevant, is unfairly prejudicial, constitutes inadmissible hearsay, or is otherwise barred. Further, if
the State has chosen not to call the officer to testify and there is no evidence that the officer’s
misconduct compromised the investigation, the State should seek to prohibit the defense from asking
questions about the officer. For example, the ADA should object if the defense tries to paint law
enforcement officers as corrupt generally by asking questions about the misconduct of the non-
testifying officer that was unrelated to the case.

39
See Addendum 4, Sample Letter to Training and Standards.

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 Addendum 1

Memorandum of Understanding between the District Attorney and Law Enforcement

This Memorandum of Understanding [MOU] sets forth the terms of understanding between the District
Attorney and the below signed law enforcement agency regarding their respective obligations to ensure
that the defendant is afforded a fair trial by disclosing to the prosecution any law enforcement
misconduct that may have bearing on the outcome of a case so that this information can be turned over
to the defense as required by law.

Background and Purpose

The District Attorney’s Office, in its continued effort to promote the highest ethical standards and public
confidence in the judicial system, has instituted a policy to ensure that obligations under the U.S.
Constitution and the North Carolina Rules of Professional Conduct are followed. The policy formalizes
the process of information sharing so that prosecutors receive sufficient information to comply with
their constitutional and ethical requirements while protecting the legitimate privacy rights of law
enforcement witnesses.

Scope of Agreement

This MOU memorializes the agreed procedure for handling a substantiated finding of the following
information or events:

1) A sustained administrative finding of misconduct that reflects upon the truthfulness or possible
bias of the officer, including a finding of lack of candor during a criminal, civil, or administrative
inquiry or proceeding;
2) A conviction or pending charges for a Felony or Class A1, Class 1 or Class 2 misdemeanor
including driving while intoxicated but excluding all other traffic offenses.
3) Information that an officer has a racial, religious or personal bias against the defendant that has
a bearing on his or her truthfulness or ability to do his or her job.
4) An officer’s conduct that tends to negate the guilt of an accused person or lessen the
seriousness of an accused’s offense.
5) A sustained misconduct finding or pending misconduct investigation that either casts a
substantial doubt upon the accuracy of any information—including witness testimony—that the

12
 prosecutor intends to rely on to prove an element of any crime charged, or that might have a
significant bearing on the admissibility of prosecution evidence.
6) This list is not exclusive nor determinative. The decision to turn over unrelated case material is
multi-factorial and requires a case-by-case analysis.

Investigatory and Notification Procedures

The law enforcement agency hereby agrees that should it have substantial information relating to items
1 through 6 above regarding any law enforcement officer, the head of the law enforcement agency, or
his or her designee, shall immediately notify District Attorney Satana Deberry and her designee for
Giglio matters, Brenda Ford Harding in writing, including a brief statement about the nature of the
conduct and the basis and outcome of any investigation, especially including any dishonesty that may
have occurred during or prior to any investigation. Substantial information is defined as facially credible
information that might reasonably be deemed to undermine confidence in a guilty conviction in which
the law enforcement officer is a witness. Substantial information is not based on mere rumor,
unverifiable hearsay, or irresolvable conflicts in testimony resulting from differing memories of the
event. Substantial information is a slightly lower evidentiary standard than would be sufficient to
sustain a finding of probable cause in a criminal prosecution.

The law enforcement agency also recognizes that the duty to disclose substantial information about
items 1 through 6 above is ongoing and does not abate after an initial report. Further, specific inquiry
by the prosecution about individual officers does not ease the ongoing obligation to report Brady/Giglio
material generally. In addition to the rolling notification requirement described above, the head of law
enforcement or his or her designee shall conduct an annual review and provide a written report
regarding substantial information related to items 1 through 6 above for all officers in the agency.

The District Attorney’s Office agrees that information given to it pursuant to this MOU will remain
confidential, will be withheld from public inspection, and will be used only to ensure that the defendant
is afforded his or her due process rights. In addition the District Attorney’s Office will endeavor to insure
that the governance of the information will be in strictest accordance with the protections afforded by
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) N.C.G.S. § 160A-168, N.C.G.S. § 126-24, and N.C.G.S. § 153A-
98.

13
Both the law enforcement agency and the District Attorney’s office are aware that should either party
decide that an officer’s integrity has been compromised so much by his or her actions that a decision is
made that the officer will no longer be called to testify, the parties may be obligated to convey this
information in writing to the Sheriff’s Training and Standards representative or the Criminal Justice
Training and Standards representative depending on the agency employing the law enforcement officer.
The Giglio Committee at the District Attorney’s Office will provide the officer an opportunity to be heard
prior to placing him or her on the “no call” roster and notifying the Standards representative. This
agreement will be renewed at the end of each calendar year and any time a new District Attorney is
sworn into office. It may also be renewed when circumstances dictate that a renewal is in order.

This MOU may be modified and amended by mutual consent of the parties. This MOU shall become
effective upon signature by the Law Enforcement Agency and the elected District Attorney and will
remain in effect until terminated by mutual consent.

_____________________________ _____________________________
The Elected District Attorney Law Enforcement Designee

____________________________ ____________________________
Date Date

Witnessed by the Chief Superior Court Judge:

_____________________________ ____________
Date

14
 Addendum 2

Worksheet for Determining the Duty to Disclose Unrelated Case Material

Defendant Name and File Number ___________________ Officer Name __________________

Date ________________
Reviewing prosecutor(s) ____________________________________
Alleged Officer Misconduct___________________________________________________________
Duty to Disclose _____ Yes ______ No

How serious was the officer’s dishonesty or misconduct? The more serious it was, the more likely
that it is material.

Very Serious Serious Not Very Serious

When was the misconduct? The closer in time it was to the officer’s investigation in the present
case, the more likely that it is material. Within:

One Year Five Years Ten Years

How conclusively was the officer’s misconduct established? The more certain it is that the officer
engaged in misconduct, the more likely that the information is material. For example, a complaint
that has been thoroughly investigated and substantiated by Internal Affairs that an officer planted
evidence is more likely to be material than a complaint that could not be confirmed.

Conclusive Proof Substantial Proof Inconclusive Proof

Did the officer’s dishonesty or misconduct arise in a fact pattern that is also present in the instant
case? For example, if the officer falsified a search warrant application in a prior case, and also
obtained a search warrant in the instant case, the information is more likely to be material.

Same Facts Similar Facts Different Facts

Is the officer’s role in the current case central or peripheral? The more critical his or her role, the
more likely that impeachment evidence concerning his or her prior misconduct is material.

Central Role Important Role Peripheral Role

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Is the evidence of the misconduct contained within personnel records vs. within less-private
sources? Personnel records are subject to privacy protections that other sources of information are
not and therefore should be less readily disclosed.

Personnel Files Less Private Source

How does the officer’s misconduct relate to the defense? For example, if the defense that evidence
was planted and this officer was found to have planted evidence, the relationship is close.

Closely Related Not Closely Related Unknown

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 Addendum 3

STATE OF NORTH CAROLINA ) THE GENERAL COURT OF JUSTICE

COUNTY OF________________ ) SUPERIOR COURT DIVISION
)
)
STATE OF NORTH CAROLINA )
) STATE’S MOTION FOR
) PRODUCTION OF DOCUMENTS,
) IN CAMERA REVIEW AND
) PROTECTIVE ORDER

NOW COMES THE STATE OF NORTH CAROLINA, by and through the undersigned Assistant District
Attorney and pursuant to Pennsylvania v. Ritchie, 480 U.S. 39 (1987), N.C.G.S. 160A-168, N.C.G.S. § 126-
24 and N.C.G.S. § 153A-98 and moves this Honorable Court to Order the disclosure of records in the
possession of the [name law enforcement agency], to be disclosed to the Senior Resident Superior Court
Judge for in camera review.

In Support of this Motion the undersigned shows the following:

1. The undersigned prosecutor has been given the responsibility for complying with the
requirements under Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S.
150 (1972) for the Durham County District Attorney’s Office.

2. The below-listed names were provided to the Durham County District Attorney’s Office by
________ of the [law enforcement agency’s] Criminal Investigations Division, as individuals who
have been the subject of an internal investigation involving misconduct that may rise to the level
of Giglio or Brady material. That letter is attached to this motion.

3. The Durham County District Attorney’s Office does not know at this time whether any of the
misconduct would rise to the level of Giglio or Brady material. If any such conduct is Giglio or
Brady material and the person is to be a material witness, the District Attorney must disclose such
to the defendant’s attorney.

17
4. The undersigned, in deference to the rights of the named individuals, in the interests of justice,
and in order to comply with Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405
U.S. 150 (1972); North Carolina Rules of Professional Conduct Rule 3.8(d), and other legal and
ethical obligations, makes this request of the Court for disclosure of each of the named
individuals’ personnel and Internal Affairs files for the time period including the past ten years to
the Senior Resident Superior Court Judge for in camera review to determine if any Giglio or Brady
material exists.

5. If the Senior Resident Superior Court Judge deems any of the named individual files contains any
Giglio/Brady material, the undersigned requests that said material be turned over as SEALED to
the District 16 District Attorney’s Office for further review.

6. The undersigned hereby moves this honorable Court to order this motion and any Order and
additional motions pertaining to these matters be SEALED and remain SEALED except for any
necessary disclosure to the Giglio Committee of the District 16 District Attorney’s Office, and
specifically to Brenda Ford Harding, the Committee head.

7. The names of [law enforcement agency] employees disclosed to the District Attorney’s Office are:

LIST OFFICER’S NAMES

This the __________ day of _______, 20__.

_____________________________________
Assistant District Attorney

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STATE OF NORTH CAROLINA
COUNTY OF________________
STATE OF NORTH CAROLINA
v.
) THE GENERAL COURT OF JUSTICE
) SUPERIOR COURT DIVISION
)
)
) ORDER FOR PRODUCTION OF DOCUMENTS,
) IN CAMERA REVIEW AND PROTECTIVE ORDER
)

UPON CONSIDERATION of the State of North Carolina’s Motion for Production and In camera Inspection
of certain personnel and Internal Affairs files and for a Protective Order the Court, in the interests of
justice, the undersigned Senior Resident Superior Court Judge hereby issues the following ORDER OF THE
COURT:

1. The State’s Motion is hereby GRANTED as to each individual named: LIST OFFICER’S NAMES.

2. The [law enforcement agency] employee responsible for maintaining personnel and Internal
Affairs records shall submit to the Resident Superior Court the entire personnel and Internal
Affairs files for the time period including the past ten years of the following employees in a sealed
envelope no later than five days from the date of this ORDER.

3. The State’s Motion and all accompanying documents, any subsequent motions and pleadings
directly related to this matter shall be SEALED by the Durham County Clerk of Court from public
disclosure unless the Senior Resident Superior Court Judge deems any items of the personnel or
Internal Affairs files rise to the level of Brady/Giglio requiring disclosure. If disclosure is required
the materials shall be copied and disclosed to the District 16 District Attorney’s Office Giglio
Committee head, Brenda Ford Harding, in a sealed envelope. All records in the District 16 Clerk
of Court’s possession shall remain sealed until ordered unsealed.

Ordered this the ___________ day of _______________________, 20__.

___________________________
Superior Court Judge

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 Addendum 4
Sample Letter to Training and Standards40

Director
NC Sheriffs Training and Standards
P.O. Box 629
Raleigh, NC 27602
Telephone: (919) 779-8213

OR

Director
Criminal Justice Training and Standards
Post Office Drawer 149
Raleigh, NC 27602
Telephone: (919) 661-5980

RE: Deputy John Smith

Dear Director,

Recently this office initiated a review of the conduct of John Smith, a deputy sheriff with the _________
County Sheriff’s Office. Included in the review of Deputy Smith’s conduct was information from the
confidential personnel files of Deputy Smith.

As a result of our review, the _____ District Attorney’s Office will no longer be calling on Deputy Smith
to give sworn testimony. Deputy Smith has been informed of our decision and has been given a right to
be heard regarding it.

I do not have a court order authorizing my office to release the personnel files of Deputy Smith,
however because you are the credentialing agency responsible for maintaining the high standards for
law enforcement in North Carolina, I am submitting the District Attorney’s office decision to no longer
call Deputy Smith to the stand to you for your review.

Sincerely,

Brenda Ford Harding

Head of Giglio Committee for Judicial District 16

40
The Giglio Committee will send this letter rather than the prosecutor handling the case.

20