IV. Discovery and Pretrial Motions

• Jurisdiction: North Carolina

IV. DISCOVERY AND PRETRIAL MOTIONS

As in state court, the constitutional baseline for the government's duty to provide information to the defendant is established by Brady v. Maryland, 373 U.S. 83 (1963), which requires the government to disclose to the defendant information that is material and helpful to the defense; and Kyles v. Whitley, 514 U.S. 419, 437 (1995), which imposes a duty on the prosecutor to learn of such favorable evidence that is known to law enforcement or others working on the prosecution's behalf.

Unlike in state superior court, where statutory open-file discovery governs, the federal rule governing discovery, Fed. R. Crim. P. 16, contains far more limited statutory discovery provisions. Rule 16 requires the government to disclose to the defendant, upon request, statements of the defendant; the defendant's criminal record; documents that are (1) material to the preparation of the defense, (2) intended to be used by the government in its case-in-chief or (3) were obtained from or belong to the defendant; and the results of any examinations or tests that (1) are within the government's control, (2) the existence of which the prosecutor knows or could know through due diligence and (3) are material to the defense or which the government intends to use in its casein-chief. The government must also give the defense a written summary of any expert witness the government intends to use in its case-in-chief. The summary must describe the expert's opinions, the reasons therefore and the witness' qualifications.

Once the government completes its obligations under Rule 16, the defendant must produce the same items regarding documents, examinations and tests and summaries of expert testimony and qualifications. See Fed. R. Crim. P. 16(b)(1). The defendant is never required to produce his or her own statements, and pursuant to the Jencks Act, discussed below, statements by prospective witnesses given to members of the defense team need not be produced unless and until the witness testifies at trial in the defense case. Generally, the parties must attempt to obtain items by consent prior to involving the court through motions to compel. Local Rule 43.04, EDNC; LCrR 16.1 MDNC.

In addition to Rule 16, the Jencks Act (18 U.S.C. § 3500) and Rule 26.2 require the government to disclose, upon request of the defendant, any statement of a government witness who has testified on direct examination that relates to the subject matter of the witness'...