Mecklenburg County District Attorney’s Office

PROCEDURE FOR DISCLOSURE OF BRADY / GIGLIO MATERIAL

ISSUED: 11/15/2011 (Revised 01/01/19)

Contents
INTRODUCTION: ......................................................................................................................... 1
BRADY / GIGLIO COMMITTEE: ................................................................................................ 2
BRADY/ GIGLIO MATERIAL DEFINED:.................................................................................. 2
BRADY / GIGLIO MATERIAL IN INTERNAL AFFAIRS FILES:............................................ 4
BRADY / GIGLIO MATERIAL IN CIVILIAN PERSONNEL FILES: ......................................... 5
BRADY / GIGLIO MATERIAL POSSESSED BY THIS OFFICE: ............................................. 5
IN CAMERA REVIEW / PROTECTIVE ORDERS: .................................................................... 8
TIMING OF DISCLOSURE .......................................................................................................... 9
COMPLIANCE PROCEDURE: ..................................................................................................... 9
TRIAL STRATEGY AND WITNESS PREPARATION: ........................................................... 12
Addendum I – Example of Protective Order ................................................................................ 13

INTRODUCTION:
We, as prosecutors, have a constitutional obligation to disclose to a defendant, in a
criminal case, evidence favorable to that defendant. Brady v. Maryland, 373 U.S. 83 (1963).
“Favorable evidence” includes evidence that is exculpatory as well as information that could be
used to impeach the testimony of a prosecution witness. Giglio v. U.S., 405 U.S. 150 (1972).
Disclosure is not contingent upon the information being admissible at trial. Impeachment
evidence is not limited to questions of veracity and can include issues such as prejudice or bias.
The Mecklenburg County District Attorney’s Office, in our continued effort to promote the
highest ethical standards and public confidence in the court system, has made the policy decision
to begin a heightened Giglio screening process. This policy will more closely reflect the
Department of Justice Giglio screening procedures. The purpose of this policy is to ensure that
prosecutors and the defense receive sufficient information to comply with the constitutional
requirements of Brady and Giglio while protecting the legitimate privacy rights of law
enforcement witnesses. This policy is not intended to create or confer any rights, privileges, or
benefits to defendants or prospective or actual witnesses. This is not a discovery policy. The
materials we are required to provide under Brady / Giglio are not part of “the investigation of the
crimes committed” as described in N.C.G.S. §15A-903. Rather, they are investigations of officer
conduct and often the information is contained in files protected by employee privacy laws.

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 BRADY / GIGLIO COMMITTEE:
To ensure compliance with this Brady / Giglio policy, and to protect the privacy of
witnesses called by the State, the District Attorney’s Office shall have a Brady / Giglio
Committee. This ad hoc Committee shall be comprised of at least three Team Supervisors.
When considering whether to disclose potential Brady / Giglio material, the Team Supervisor or
their designee who reviewed the potential Brady / Giglio material must be one of the three. A
decision to disclose Brady / Giglio material must be made by a majority of the Committee
members. A decision not to disclose potential Brady / Giglio material must be unanimous. If the
Committee cannot reach a decision, the District Attorney will decide the issue. The Committee
shall be chaired by the Drug Team Supervisor or another ADA designated by the District
Attorney. The Chairperson shall designate a substitute chairperson to preside when s/he is
unavailable to preside. The materials reviewed and memoranda of conclusions reached shall be
maintained by the Chair in a secure location in the District Attorney’s Office. In those cases
where the Committee determines that sustained misconduct allegations are subject to disclosure,
the materials providing the basis for that decision shall be maintained for purposes of complying
with Brady / Giglio obligations in future cases.

The information contained in these administrative files shall only be accessed for case-
related purposes. Only the materials relevant to the particular case will be disclosed.

The conclusions of the Committee, based upon the delegation of that authority by the
District Attorney, represent the official position of the Mecklenburg County District Attorney’s
Office on the issue of whether or not the information in question is Brady / Giglio material. The
assigned ADA must treat the information accordingly. If the assigned ADA disagrees with a
decision made by the Brady / Giglio Committee, the ADA shall raise the issue within the
confines of his/her chain of command.

Subject to review and approval by the District Attorney, the Committee shall be
responsible for any changes to this policy.

BRADY/ GIGLIO MATERIAL DEFINED:

The District Attorney is obligated to provide the defense in criminal cases with
exculpatory evidence that is material to either guilt or punishment, irrespective of the good faith

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or bad faith of the prosecution. (Brady v. Maryland, supra, 373 U.S. 83, 87.) Reviewing courts
define “material” as follows: “The evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. King, 628 F.3d 693, 702 (2011). Materiality, however, does
not require a demonstration that the undisclosed evidence would have resulted in the defendant’s
acquittal. Kyles, 514 U.S. at 434. Rather, defendant must show that the undisclosed evidence
would “undermine confidence in the outcome of the trial.” Id. This constitutionally imposed
disclosure obligation is not limited to materials in the hands of the prosecuting agency. It
extends to information “known to the others acting on the government’s behalf in the case,
including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Consistent with the North
Carolina statutes regarding impeachment of a criminal defendant, we will “look back” for a
period of ten years when requesting and reviewing material that may be subject to disclosure.
However, if the decision is made to disclose information regarding a witness, we will always
disclose from that disclosure forward and continue even after ten years elapses.

Brady / Giglio disclosure obligations apply to substantial material evidence bearing on

the credibility of a key prosecution witness. See State v. Williams, 362 N.C. 628 (2008) (Union
County conviction reversed in part because prosecutors destroyed impeachment evidence).
However, such impeachment evidence likely must disclose more than “minor inaccuracies.”
(People v. Padilla 11 Cal.4th 891, 929 (1995), overruled on other grounds, People v. Hill 17
Cal.4th 800, 823, fn. 1. (1998).

The government has no Brady obligation to “communicate preliminary, challenged, or

speculative information.” (United States v. Agurs (1976) 427 U.S. 97, 109 fn. 16.) However,
“the prudent prosecutor will resolve doubtful questions in favor of disclosure.” (Id. at p. 108.)
See also Kyles v. Whitley (1995) 514 U.S. 419, 439, which warns prosecutors against “tacking
too close to the wind” in withholding evidence.

Below is a non-exhaustive list with examples of evidence that may constitute "Brady
material:"

1. The character of the witness for honesty or veracity or their opposites.

2. A bias, interest, or other motive.

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 3. A prior statement by the law enforcement witness that is inconsistent with the
witness’s testimony.

4. Any conviction that could be used for impeachment purposes pursuant to

N.C.G.S. § 8C-1, Rule 609.

5. False reports by a prosecution witness.

6. Parole or probation status of a witness.

7. Evidence undermining an expert witness’s expertise.

8. Evidence that a witness has a racial, religious or personal bias against the
defendant individually or as a member of a group.

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, and is not based on mere rumor, unverifiable hearsay, or a
simple and irresolvable conflict in testimony about an event.

BRADY / GIGLIO MATERIAL IN INTERNAL AFFAIRS FILES:

The District Attorney’s Office will request Brady / Giglio from participating law
enforcement agencies asking to be notified of all potential Brady / Giglio information known to
the agency to include any of the following:

1. A sustained finding of misconduct that comes within the definition of Brady

material set forth in this policy. If the agency has notified the District Attorney’s Office of
Brady / Giglio information and the officer later successfully appeals the finding of misconduct
to a court or other body with dispositive authority, the agency should provide the District
Attorney’s Office with a copy of the decision and the District Attorney’s Office will reevaluate
the matter.

2. Any arrest or conviction of the officer or pending criminal charges against the
officer known to the law enforcement agency.

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 BRADY / GIGLIO MATERIAL IN CIVILIAN FILES:

The CMPD and the District Attorney’s Office have adopted a procedure by which the
CMPD informs the District Attorney's Office of the identity of officers and civilian employees
who may testify as a witness in a prospective or pending case, that have sustained Internal
Affairs violations which may require disclosure under Brady. The Giglio Committee should
make requests to other agencies in a similar manner.

BRADY / GIGLIO MATERIAL POSSESSED BY THIS OFFICE:

Upon learning of a credible allegation involving a law enforcement employee or expert

witness misconduct or credibility that may be subject to disclosure under Brady, ADAs shall
timely report this information to their immediate supervisor. For example, evidence of
untruthfulness may come to light during a criminal trial, or from credible reports of other law
enforcement employees based on non-confidential sources other than personnel records. Such
allegations must be substantial and not a simple conflict in testimony about an event. The
notification itself ultimately might be examined in camera and/or be disclosed to the defense, so
carelessness in wording or premature conclusions are to be avoided. If and when such
information is obtained, the District Attorney’s Office will conduct a thorough analysis pursuant
to the procedures outlined herein to determine if it is required to disclose the information
pursuant to Brady.

ADAs shall advise their supervisors if they become aware of any of the following
information regarding a law enforcement employee or expert witness:

1. Criminal convictions of law enforcement employees.

2. Prosecutions initiated against law enforcement employees.

3. District Attorney’s Office rejections of requests for initiation of prosecution against

law enforcement employees.

4. Any administrative discipline imposed against a law enforcement employee that may
have a bearing on credibility.

A. Following receipt of such a report, the supervisor of the ADA shall obtain all available

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 information concerning the alleged misconduct, including the transcript of any testimony
provided, and shall forward the materials to the Brady/ Giglio Committee.

B. The Committee shall review and analyze the materials in light of applicable law. In some
cases, it may be necessary and appropriate for the District Attorney’s Office to obtain copies
of additional court documents or police reports, or interview witnesses. However, absent
extraordinary circumstances, the District Attorney’s Office will not seek to interview the
officer in question or other employees of the employing law enforcement agency.

C. Following the initial review and analysis described above, the Committee shall decide which
of the following conclusions is appropriate: (1) the materials do not constitute Brady / Giglio
material; or (2) it appears that disclosure may be required under Brady / Giglio. When the
Committee cannot conclude that either 1 or 2 is appropriate, then further investigation,
including interview of the officer in question or other employees of the employing law
enforcement agency, should be undertaken by the employing law enforcement agency.

a. If the Committee concludes that based on the initial review it is clear that the materials do
not constitute Brady material, the matter shall be closed.

b. If it appears after the initial review that information regarding an officer may be Brady /
Giglio material, the officer and the head of the employing law enforcement agency may
be invited to provide written comments, or additional information that may bear on the
decision of what information, if any, shall be provided. Given the need to provide
prompt disclosure to the defense in criminal cases, the opportunity to comment, or
provide information may out of necessity be brief or non-existent. If the information
regarding an officer is Brady / Giglio material and resulted in a sustained Internal Affairs
violation criminal charges being filed against the officer and/or the officer’s employment
being terminated, neither the officer nor the employing agency will be invited to provide
written comments, or additional information in connection with the officer’s name being
added to the Brady / Giglio list.

1. The Committee shall evaluate all information received and make determinations or
conclusions about what disclosure, if any, is appropriate. The Committee’s decision
may include but is not limited to the following actions:

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 a. No further action based upon a conclusion that no Brady/ Giglio material
exists.

b. Disclosure is required in a specific case only.

c. Disclosure must be provided in additional cases in which the law

enforcement employee is or was a witness.

d. In some cases, presenting the material to a judge for in camera review may
be an appropriate manner of resolving the disclosure issue.

e. In some cases, blanket notification to the defense bar may be appropriate as a

back-up form of notification in situations in which we cannot be confident
that we have identified all of the affected parties.

2. If the Committee determines that disclosure is appropriate, it shall send written

notification to the officer and to counsel of the employing law enforcement agency
describing the nature of the conduct. (There might be instances where providing notice
is not immediately practicable or possible, and that decision will be made by the
Committee or the District Attorney.).

In some cases, after the initial review, the Brady / Giglio Committee may conclude that
the District Attorney’s Office is not in possession of sufficient information to conclude that
conduct coming within Brady / Giglio has occurred, but that further investigation is appropriate.

1. As previously stated, absent extraordinary circumstances, the District Attorney’s

Office will not seek to interview the officer or other employees of the officer’s
agency. In such cases, the matter shall be referred to the employing law enforcement
agency to request an investigation.

2. If, after investigation, the employing law enforcement agency concludes that the
complaint is unfounded or the witness is exonerated, then disclosure may not be
warranted because the information is “preliminary, challenged, or speculative.” (U.S.
v. Agurs, supra.)

3. If the employing law enforcement agency sustains the complaint, the District
Attorney’s Office shall treat the information according to the Brady / Giglio policy

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 IN CAMERA REVIEW / PROTECTIVE ORDERS:

The District Attorney’s Office may submit a memorandum approved by the Brady /
Giglio Committee detailing potential Brady / Giglio evidence to a judge for in camera review to
determine whether disclosure to the defense is required. (U.S. v. Agurs, supra, 427 U.S. at p.
106; U.S. v. Dupuy (9th Cir. 1985) 760 F2d 1492, 1502.) Please note that we are turning over a
memo, not the file. The file does not belong to this office and is not discoverable as it was not
part of “the investigation of the crimes committed” as described in N.C.G.S. §15A-903). The
option of submitting the Brady material for in camera review should be considered in all cases,
in consultation with the Brady / Giglio Committee. In cases where the memorialized conduct
would only be Brady / Giglio material under a narrow fact pattern, the ADA should consider
requesting a protective order, limiting or prohibiting the disclosure of the material in other cases.

If a memorandum approved by the Brady / Giglio Committee detailing material regarding

the credibility of a law enforcement employee is disclosed to the defendant pursuant to this
policy, the assigned ADA shall provide the Committee with a copy of the material ordered by the
judge to be disclosed. The Committee chair shall then include this material in the administrative
file maintained for that law enforcement employee, unless the court has made a limiting order
regarding disclosure of the material. In addition, a copy of the material ordered disclosed would
also become part of the case file for the particular case in which disclosure was ordered.

There will be times when the court or counsel are not satisfied with the memo we
provide. In those cases the defendant may demand the officer’s I/A file to ensure we have
complied with Brady / Giglio. The District Attorney’s Office is not in possession of those files,
nor are those files part of the investigative file. Therefore, the correct course of action would be
for defense counsel to file a motion with the Court requesting access to those files. The police
agency in possession of the files should be notified by the defense and a hearing scheduled. The
ADA will likely need to inform the Court and counsel that a subpoena is legally insufficient and
the moving party must have a legally sufficient basis. “[A]t a minimum, an ex parte petition
submitted pursuant to section 160A-168(c)(4) should be accompanied by sworn affidavit(s) or
similar evidence, including specific factual allegations detailing reasons justifying disclosure.
The petition should further state the statutory grounds which allow disclosure.” In the Matter of
Brooks, 548 S.E. 2d 748, 755 (2001).

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 TIMING OF DISCLOSURE

Information subject to disclosure under the Brady / Giglio policy shall be disclosed prior
to trial. It is not contemplated within this policy that impeachment material must be turned over
prior to a guilty plea. The rights created under Brady / Giglio are “fair trial” rights. “Brady
requires a prosecutor to disclose exculpatory evidence for purposes of ensuring a fair trial, a
concern that is absent when a defendant waives trial and pleads guilty." U.S. v. Zacarias
Moussaoui, 591 F.3d 263, 285, 2010 U.S. App. LEXIS 43 (2010).
The United States Supreme Court addressed this issue, holding “We must decide whether
the Constitution requires that preguilty plea disclosure of impeachment information. We
conclude that it does not.” United States v. Ruiz, 536 U.S. 622, 629 (2002). Therefore,
information subject to disclosure under this policy shall be give to the defendant after the Pre-
Trial Readiness Conference but before trial. ADAs should make every effort to disclose the
information sufficiently in advance of trial to avoid unfair prejudice to the defendant.

COMPLIANCE PROCEDURE:

A. For every trial scheduled in Superior Court and District Juvenile Court, the
assigned ADA will prepare a list of law enforcement and civilian witnesses
employed by law enforcement agencies who are expected to be called during the
trial. The ADA is to provide that list to the Team Supervisor immediately
following the Pre-Trial Readiness Conference. For Teams that do not have Pre-
Trial Readiness Conferences, the Team Supervisor will designate when the list is
to be provided.

B. The Team Supervisor will send the list of witnesses to the Giglio Committee
Chair who will contact the involved law enforcement agencies and request each
agency to search their Internal Affairs (I/A) files of each officer or employee on
the list for SUSTAINED VIOLATIONS within ten years of the request. The
agency will be requested to provide the Chair with a list of officers or
employees with sustained Internal Affairs violations within the past ten years.
The participating agency may, instead of allowing access to the relevant I/A

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 files, certify to the District Attorney’s Office the absence or presence of Brady /
Giglio material.

C. The Chair will review the list and determine whether any of the violations could
be considered as material falling under this policy. The Chair will request access
to the complete I/A file on a case-by case basis to review the underlying factual
allegations and evidence when necessary.

D. For sustained I/A violations that potentially require disclosure, the Chair will
summarize the facts and allegations from the I/A file in memo form and present
the information to the Brady / Giglio Committee for guidance. The summary
will not contain the name of the involved witness.

E. If the Committee decides the material should be disclosed pursuant to this

policy, then the information contained in the memo summarizing the I/A
violations shall be turned over to the defense. (Please note that we are turning
over a memo, not the file). The file does not belong to this office and is not
discoverable as it was not part of “the investigation of the crimes committed” as
described in N.C.G.S. §15A-903.

F. There will be instances in which material would be turned over in one type of
case and not another. For example, a sustained complaint for use of force that
showed a potential bias against Native Americans would not be Brady / Giglio
material in cases not involving excessive force or Native Americans. However,
a sustained violation involving honesty less than ten years old would be
disclosed. In the instance involving conduct that might only be disclosed in rare
cases, the ADA should consider seeking a protective order.

G. Upon a decision that the conduct of a particular officer will be disclosed as

Brady / Giglio material, the Chair will notify the officer that s/he is being placed
on our Brady / Giglio list. The Chair or the appropriate Team Supervisor will
be available to meet with the affected witness to discuss the procedure that will

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 be followed. There may be instances in which the material that must be
disclosed is so damaging to the witnesses credibility that the District Attorney,
in his sole discretion, may choose not to call the impacted witness as a witness
in the case at hand or any future cases. In those rare instances, the District
Attorney will allow the witness the opportunity to meet with the District
Attorney before any final action is taken.

H. For misdemeanor cases pending in District Court, it is the position of this office
that a matter is “for trial” when it is scheduled in a trial courtroom on the fourth
floor of the Mecklenburg County Courthouse. The Misdemeanor Team
Supervisor will track the assigned court dates for law enforcement officers for
which the Giglio Committee has previously determined that a Brady/Giglio
disclosure is required.

I. The Misdemeanor Team Supervisor will attend all court dates for these officers
and review the cases, with the assigned courtroom ADAs, to determine if the
officer is necessary to proving the elements of the case(s) for which the officer
was subpoenaed. If the officer is NOT a necessary witness, the officer will be
excused and removed from the witness list.

J. Where an officer previously determined to have a Brady/Giglio disclosure is a

necessary witness in a pending case in criminal district court, whether or not the
matter is marked for trial, the Misdemeanor Team Supervisor will make the
appropriate disclosure, by hand delivery, to the defense attorney immediately.
SEE ADDENDUM 2.

K. If the District Attorney determines that the material in question is so damaging

to the witness’ credibility that the witness will not be called in the case at hand
and in any future case, and the witness is employed as a sworn law enforcement
officer, the District Attorney will: 1) notify the law enforcement agency that
employs said witness of the decision; 2) notify the North Carolina Criminal
Justice Education and Training Standards Commission of the decision; 3)
undertake a review of all adjudicated cases in which said officer was a material

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 witness, which resulted in a conviction, and in which a case file or other similar
material exists, to ensure that no actions or testimony by said officer tainted the
conviction. If any actions or testimony by said witness are found which may
have tainted an adjudicated case which resulted in a conviction, the District
Attorney shall notify the defendant and/or the attorney who represented the
defendant in said case of the District Attorney’s findings and take appropriate
next steps as justice should require.

TRIAL STRATEGY AND WITNESS PREPARATION:

ADAs with knowledge of material provided to the defense who believe that the
witness can be called as a witness in spite of a required disclosure should take extra care in
preparation of the Brady / Giglio impaired witness. The ADA should consider asking the
witness about the Brady / Giglio information during direct examination so that the officer
has the opportunity to explain the conduct and how long ago it occurred. ADAs are
expected to discuss strategy with their Team Supervisor on how to address any Brady /
Giglio issues with the jury.

Our disclosure requirement under this policy does not automatically mean the
information is admissible as evidence in trial. The assigned ADA shall decide if s/he should
challenge the admissibility of matters disclosed under this policy.

Conclusion:

Compliance with this policy is necessary to maintain trust and confidence in the integrity
of the judicial system in general and this Office in particular. This policy should be read and
interpreted to require ADAs to protect every defendant’s right to a fair trial while also protecting
the legitimate privacy rights of our law enforcement partners.

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 Addendum I – Example of Protective Order

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF MECKLENBURG SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA )

)
v. )
) PROTECTIVE ORDER
) LIMITING USE OF
, ) PERSONNEL INFORMATION
)
Defendant. )

The above captioned matter having come before this Honorable Court and the Court having
reviewed the memorandum prepared based on information from the District Attorney’s
Office’s review of Protected Personnel Information under G.S. 160A-168 for Officer
___________, and the District Attorney’s office believing the information should be released
as part of its obligation under Giglio, the Court enters the following protective order:

IT IS HEREBY ORDERED that any information and Affidavit related to Officer _________
personnel file pursuant to G.S. 160A-168 shall not become public record but shall be used
only for the limited purpose of the litigation of the underlying matter and shall not be
released to anyone but the parties to this action and the judge hearing the criminal matter.

This the _______ day of ________ 201_.

___________________________________
The Honorable Superior Judge Presiding

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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
COUNTY OF MECKLENBURG DISTRICT COURT DIVISION

ADMINISTRATIVE ORDER
DISCLOSURE OF PERSONNEL FILE MATERIAL
It is hereby ORDERED that the personnel material and/or information related to an Internal
Affairs Investigation that is disclosed (below) by the Mecklenburg County District Attorney’s Office to
the defendant captioned below and his or her attorney shall be used only for the limited purpose of this
captioned case and shall not be released to anyone but the counsel to this action. This information is
otherwise protected by N.C.G.S. 160A-168.
It is further ORDERED that because the Mecklenburg County District Attorney’s Office has
disclosed potential impeachment material as set out below and that information is subject to cross-
examination, further requests by the defendant or his/her counsel to review the witness’s personnel file is
unnecessary and duplicative of the State’s responsibilities under Giglio v. United States, 405 U.S. 150
(1972). Requests to review the witness’s personnel file or complete file related to this disclosure will be
quashed unless the defendant can provide specific factual allegations and statutory grounds, in writing,
demonstrating that the interests of justice require additional disclosure of confidential employment
information.
This the __10th___ day of __March______, 2015.

________________________________
The Honorable Regan A. Miller
Chief District Court Judge

Case No. ____CR________ Defendant: __________________________

Def. Counsel: _________________________
ADA: _______________________________

Re: XXXXXXXX

Pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. U.S., 405 U.S. 150 (1972), the
Mecklenburg County District Attorney’s Office hereby makes the following disclosure:

This material has been provided to defense counsel, this the ____ day of ___________, ______.

______________________________________

Misdemeanor Team Supervisor

Mecklenburg County District Attorney’s Office

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