North Carolina 

Overview

North Carolina’s criminal justice system reflects a growing awareness of Brady and Giglio obligations—but lacks the infrastructure and legal mandates necessary to enforce consistent disclosure of officer misconduct statewide. While prosecutors are constitutionally bound to turn over impeachment and exculpatory evidence, the state does not require them to maintain Brady or Giglio lists. Nor are law enforcement agencies required to report credibility-impairing misconduct to prosecutors or courts. A few urban jurisdictions—such as Durham and Mecklenburg Counties—have developed internal tracking systems, but most of the state’s 100 counties rely on informal, discretionary practices. Additionally, North Carolina’s public records laws severely limit access to police disciplinary records, reinforcing opacity and undermining defense efforts to uncover credibility concerns. The result is a system in which truth is structurally fragile and often inaccessible.

Brief Description of Legal Landscape

Criminal prosecutions in North Carolina are overseen by elected District Attorneys for each of the state’s 43 prosecutorial districts, under the supervision of the North Carolina Conference of District Attorneys. The North Carolina Attorney General represents the state in appellate litigation and may step in for conflicts, but does not directly manage routine prosecutions.

Disclosure obligations are governed by:

• Brady v. Maryland (1963) and Giglio v. United States (1972) via the Fourteenth Amendment.

• North Carolina Rules of Professional Conduct Rule 3.8(d): Requires prosecutors to disclose evidence that tends to negate guilt or mitigate punishment.

• North Carolina General Statute § 15A-903: Requires pretrial disclosure of “exculpatory evidence” but does not mention impeachment material explicitly.

Law enforcement officers are certified by the North Carolina Criminal Justice Education and Training Standards Commission and the Sheriffs’ Education and Training Standards Commission. These bodies have the power to revoke certification for certain misconduct—but there is no statutory requirement that sustained findings be reported to prosecutors or made public. Internal affairs investigations are considered confidential personnel records under N.C.G.S. § 160A-168 and § 153A-98, severely limiting access for defense attorneys and the public.

Historical Context

North Carolina’s legal culture has long resisted expansive transparency in both prosecutorial and police accountability. The state’s personnel privacy statutes are among the most restrictive in the country, routinely shielding even sustained findings of dishonesty or rights violations from disclosure.

High-profile wrongful convictions have nonetheless forced reforms. The exonerations of individuals like Gregory Taylor, Henry McCollum, and Leon Brown exposed deep failures in evidence disclosure, forensic reliability, and prosecutorial candor. In response, the North Carolina Innocence Inquiry Commission—the only agency of its kind in the U.S.—was created in 2006 to investigate post-conviction innocence claims.

Still, the Innocence Commission is reactive, not preventive. No law or state policy requires prosecutors to track officer credibility or proactively disclose internal affairs records to the defense. And without public access to sustained misconduct findings, Giglio material often remains hidden—sometimes even from the state.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

North Carolina’s Constitution provides due process under Article I, Section 19 and confrontation rights under Section 23, paralleling federal guarantees.

Key statutes and rules include:

• N.C.G.S. § 15A-903(a)(1): Requires the prosecution to disclose “any material or evidence favorable to the defendant.”

• Rule 3.8(d) of the North Carolina Rules of Professional Conduct: Requires timely disclosure of evidence that tends to negate guilt or mitigate punishment.

• N.C.G.S. §§ 160A-168 & 153A-98: Classify police personnel records—including disciplinary actions—as confidential, with limited exceptions.

• N.C.G.S. § 132-1.4A (2016): Requires disclosure of police body-worn camera footage only with a court order.

Importantly, there is no statute requiring prosecutors to maintain Giglio lists, and no mandate for law enforcement agencies to report sustained misconduct to prosecutors or the courts.

Relevant Case Law and Judicial Interpretations

• State v. Canady, 355 N.C. 242 (2002): Affirmed that the prosecution must disclose favorable evidence, but emphasized a materiality standard that limits the scope of review.

• State v. Taylor, 362 N.C. 514 (2008): North Carolina Supreme Court ruled that failure to disclose impeachment evidence can be grounds for reversal if material.

• State v. Strickland, 375 N.C. 179 (2020): Addressed the prosecution’s obligations under Giglio but found no violation due to lack of defense request—reflecting continued reliance on adversarial triggering rather than affirmative disclosure.

Despite these cases, the courts have not required structural tracking or reporting mechanisms for officer misconduct, leaving disclosure to the discretion of individual prosecutors.

Implementation and Enforcement

Law Enforcement Policies and Training

The two certification commissions—the Criminal Justice Standards Commission and the Sheriffs' Standards Commission—may decertify officers for felony convictions, dishonesty, or egregious misconduct. However, these decisions are not routinely shared with prosecutors or the public.

Police departments and sheriff’s offices manage internal discipline locally. Many lack written policies on when and how to inform district attorneys of credibility-impairing findings. Even when an officer is terminated for dishonesty or excessive force, there is no requirement that the district attorney be notified.

Few departments, if any, provide Brady/Giglio training as part of officer onboarding or annual education. Similarly, prosecutors are not required to verify an officer’s disciplinary history before calling them as a witness—nor are they required to inform other jurisdictions when an officer moves or testifies elsewhere.

Some DA offices—such as those in Durham County and Mecklenburg County—have created informal “Do Not Call” or Giglio lists. But these lists are not standardized, not public, and not uniformly disclosed to defense counsel unless the officer is testifying.

Oversight Mechanisms and Accountability Structures

North Carolina lacks any independent agency responsible for overseeing prosecutorial compliance with Brady and Giglio. Ethical violations are reviewed by the North Carolina State Bar, but disciplinary action for failure to disclose is rare. Even when misconduct is substantiated, public sanctions are the exception.

There is no centralized database linking police misconduct to prosecutorial offices. The State Bureau of Investigation (SBI) may investigate police misconduct or criminal complaints, but does not automatically notify local prosecutors of disciplinary findings unless criminal charges are filed.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Gregory Taylor (1991–2010)
   Convicted of murder and exonerated after nearly 17 years, Taylor’s case involved the suppression of forensic lab notes and failure to disclose weaknesses in police testimony. No Giglio review was conducted for the testifying officers after Taylor’s exoneration.

2. State v. Marcus Reymond Robinson (2007–2012)
   In a capital case, Robinson’s attorneys uncovered racial bias in jury selection and sought officer disciplinary records. The state resisted disclosure, citing personnel privacy laws. The case led to a ruling under the Racial Justice Act—but failed to reform underlying disclosure rules.

3. Andrew Brown Jr. Shooting (2021)
   In the aftermath of Brown’s death at the hands of Pasquotank County deputies, media outlets and legal advocates attempted to obtain officer disciplinary records. The sheriff's office and courts invoked privacy laws to shield the records, despite widespread public interest and ongoing litigation involving the officers.

Outcomes and Implications

These cases underscore the dangers of unchecked discretion and the structural barriers to disclosure. Officers with known histories of misconduct continue to testify without defense awareness. The lack of a tracking system means even prosecutors may not know whether their own witnesses have Giglio impairments—much less those testifying across counties.

Challenges and Gaps

Identified Issues within the State’s System

• No Brady/Giglio Lists: Prosecutors are not required to maintain records of officer credibility impairments.

• No Mandatory Notification by Law Enforcement: Agencies are not required to notify prosecutors of sustained findings of dishonesty or excessive force.

• Confidential Personnel Laws: N.C.’s privacy statutes broadly shield internal affairs records—even after misconduct is sustained.

• No Training or Disclosure Infrastructure: Neither prosecutors nor police are systematically trained or audited for compliance with disclosure obligations.

Legislative and Institutional Barriers

Efforts to reform personnel privacy laws or mandate disclosure of officer misconduct have faced fierce opposition from law enforcement associations and local officials. North Carolina’s longstanding culture of local control—coupled with a lack of prosecutorial oversight—has discouraged centralized reforms. Legislative proposals to increase access to police records or create Giglio infrastructure have repeatedly stalled.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Enact a Statewide Giglio Tracking Requirement
   Require every District Attorney to track and maintain a list of officers with sustained misconduct affecting credibility, and share these lists among districts.

2. Mandate Law Enforcement Notification
   Require police departments and sheriff’s offices to notify prosecutors of any sustained disciplinary findings involving dishonesty, bias, or excessive force within 30 days.

3. Reform G.S. §§ 160A-168 and 153A-98
   Amend personnel privacy laws to allow access to sustained misconduct records, especially those involving potential Giglio material.

4. Create Prosecutorial Giglio Units
   Require each DA’s office to designate an individual responsible for maintaining Giglio records and ensuring compliance in all cases.

Recommendations for Enhanced Transparency and Accountability

1. Establish a Statewide Officer Misconduct Database
   Publish a redacted database of officers who have been found to commit Giglio-impairing misconduct, accessible to defense attorneys and courts.

2. Create an Independent Disclosure Oversight Board
   Empower a nonpartisan board to audit Brady/Giglio compliance and issue public reports on disclosure practices statewide.

3. Integrate Giglio Compliance into Certification Process
   Require the Criminal Justice Standards Commissions to flag officers with sustained misconduct findings and share this with prosecutors.

4. Provide Mandatory Giglio Training
   Implement training programs for prosecutors and law enforcement officers on disclosure duties and testimonial ethics.

Conclusion

North Carolina’s courtroom candor remains hobbled by systemic gaps, opaque laws, and a culture of discretionary silence. While the legal duty to disclose is well established, the tools to enforce it are missing. Without mandatory tracking, interagency communication, and public transparency, truth is too often left to chance. To protect due process and rebuild public trust, North Carolina must move from discretion to design. Candor must be built into the system—not left to its mercy.