GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	1 

SENATE BILL 732

Short Title:  Fair Discovery Act.	(Public)
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Sponsors: Senator Ezzell.
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Referred to:  Judiciary I.
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April 3, 1989

A BILL TO BE ENTITLED
AN ACT TO REQUIRE DISCLOSURE OF ADDITIONAL EVIDENCE BY THE STATE IN CRIMINAL CASES AND TO REQUIRE A HEARING ON PRETRIAL MOTIONS AT LEAST SEVEN DAYS BEFORE TRIAL IN MOST JURISDICTIONS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15A-903 reads as rewritten:
"§ 15A-903. Disclosure of evidence by the State –Information subject to disclosure.
(a)	Statement of Defendant. – Upon motion of a defendant, the court must order the prosecutor:
(1)	To permit the defendant to inspect and copy or photograph any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the State the existence of which is known or by the exercise of due diligence may become known to the prosecutor; and
(2)	To divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody or control of the State, the existence of which is known to the prosecutor or becomes known to him prior to or during the course of trial; except that disclosure of such a statement is not required if it was made to an informant whose identity is a prosecution secret and who will not testify for the prosecution, and if the statement is not exculpatory. If the statement was made to a person other than a law-enforcement officer and if the statement is then known to the State, the State must divulge the substance of the statement no later than 12 o'clock noon, on Wednesday prior to the beginning of the week during which the case is calendared for trial. If disclosure of the substance of defendant's oral statement to an informant whose identity is or was a prosecution secret is withheld, the informant must not testify for the prosecution at trial.
(b)	Statement of a Codefendant. – Upon motion of a defendant, the court must order the prosecutor:
(1)	To permit the defendant to inspect and copy or photograph any written or recorded statement of a codefendant which the State intends to offer in evidence at their joint trial; and
(2)	To divulge, in written or recorded form, the substance of any oral statement made by a codefendant which the State intends to offer in evidence at their joint trial.
(c)	Defendant's Prior Record. – Upon motion of the defendant, the court must order the State to furnish to the defendant a copy of his prior criminal record, if any, as is available to the prosecutor.
(d)	Documents and Tangible Objects. – Upon motion of the defendant, the court must order the prosecutor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, buildings and places, or any other crime scene, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belong to the defendant.
(e)	Reports of Examinations and Tests. – Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the State intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.
								(f)	Statements of State's Witnesses.  Upon motion of a defendant, the court must order the prosecutor to provide to the defendant the names and addresses of all persons whom the prosecutor intends to call as witnesses at trial or at any evidentiary hearing, together with their relevant written or recorded statements; except that disclosure of these names, addresses, and statements may be restricted, denied, or deferred by the court as provided in G.S. 15A-908.
(g)	Statements of Persons with Knowledge.  Upon motion of a defendant, the court must order the prosecutor to provide to the defendant the names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged or to any defense to the offense charged, together with their relevant written or recorded statements; except that disclosure of a statement is not required if (i) the statement was made to an informant whose identity is a prosecution secret and who will not testify for the prosecution, and (ii) the statement is not exculpatory.
(h)	Exculpatory Information.  Upon motion of a defendant, the court must order the prosecutor to disclose to the defendant any material or information within the prosecutor's possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment for the offense charged.”
Sec. 2.  G.S. 15A-952 reads as rewritten:
"§ 15A-952. Pretrial motions; time for filing; sanction for failure to file; motion hearing date. 
(a)	Any defense, objection, or request which is capable of being determined without the trial of the general issue may be raised  before trial by motion.
(b)	Except as provided in subsection (d), when the following motions are made in superior court they must be made within the time limitations stated in subsection (c) unless the court permits filing at a later time:
(1)	Motions to continue.
(2)	Motions for a change of venue under G.S. 15A-957.
(3)	Motions for a special venire under G.S. 9-12 or G.S. 15A-958.
(4)	Motions to dismiss under G.S. 15A-955.
(5)	Motions to dismiss for improper venue.
(6)	Motions addressed to the pleadings, including:
a.	Motions to dismiss for failure to plead under G.S. 15A-924(e).
b.	Motions to strike under G.S. 15A-924(f).
c.	Motions for bills of particulars under G.S. 15A-924(b) or  G.S. 15A-925.
d.	Motions for severance of offenses, to the extent required  by G.S. 15A-927.
e.	Motions for joinder of related offenses under G.S. 15A-926(c).
(c)	Unless otherwise provided, the motions listed in subsection (b) must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at the session for which trial is calendared, the motions must be filed on or before five o'clock P.M. on the Wednesday prior to the session when trial of the case begins.
(d)	Motions concerning jurisdiction of the court or the failure of  the pleading to charge an offense may be made at any time.
(e)	Failure to file the motions in subsection (b) within the time required constitutes a waiver of the motion. The court may grant relief from any waiver except failure to move to dismiss for improper  venue.
	(f)	When a motion is timely made before trial, upon written request of either party, the motion shall be calendared and heard at any session of superior court at which criminal cases are heard prior to the session of court for which the trial is calendared.  If the venue of the defendant's case lies within a county where there are each year fewer than 20 regularly scheduled weeks of trial sessions of Superior Court at which criminal cases are heard, the motion may be calendared and heard during the same session for which the trial is calendared; however, in no event shall the motion be calendared and heard less than seven days before trial, in those counties where the motion is allowed to be calendared and heard during the same session of Superior Court."
Sec. 3.  G.S. 15A-902(c) reads as rewritten:
	"(c)	A motion for discovery under this Article must be heard before a superior court judge pursuant to G.S. 15A-952."
Sec. 4.  This act shall become effective October 1, 1989.