GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	1 

SENATE BILL 978

Short Title:  Depose State's Criminal Witnesses.	(Public)
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Sponsors: Senator Ballance.
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Referred to:  Election Laws.
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April 19, 1989

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT WHEN A DEFENDANT IS INDICTED BY THE GRAND JURY BEFORE HE HAS BEEN AFFORDED OR WAIVED A PROBABLE CAUSE HEARING, THE DEFENDANT MAY DEPOSE THE STATE'S PRIMARY WITNESSES.
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.
(1)	Except as provided in subsection (g), in any criminal prosecution brought by the State, no statement or report in the possession of the State that was made by a State witness or prospective State witness, other than the defendant, shall be the subject of subpoena, discovery, or inspection until that witness has testified on direct examination in the trial of the case.
(2)	After a witness called by the State has testified on direct examination, the court shall, on motion of the defendant, order the State to produce any statement of the witness in the possession of the State that relates to the subject matter as to which the witness has testified.  If the entire contents of that statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
(3)	If the State claims that any statement ordered to be produced under this section contains matter that does not relate to the subject matter of the testimony of the witness, the court shall order the State to deliver that statement for the inspection of the court in camera.  Upon delivery the court shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness.  With that material excised, the court shall then direct delivery of the statement to the defendant for his use.  If, pursuant to this procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and if the trial results in the conviction of the defendant, the entire text of the statement shall be preserved by the State and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge.  Whenever any statement is delivered to a defendant pursuant to this subsection, the court, upon application of the defendant, may recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial.
(4)	If the State elects not to comply with an order of the court  under subdivision (2) or (3) to deliver a statement to the defendant, the court shall strike from the record the testimony of the witness, and direct the jury to disregard the testimony, and the trial shall proceed unless the court determines that the interests of justice require that a mistrial be declared.
(5)	The term ‘statement', as used in subdivision (2), (3), and (4) in relation to any witness called by the State means:
a.	A written statement made by the witness and signed or otherwise adopted or approved by him;
b.	A stenographic, mechanical, electrical, or other recording, or a transcription thereof, that is a substantially verbatim recital or an oral statement made by the witness and recorded contemporaneously with the making of the oral statements.
(g)	Upon motion by the defendant in any prosecution brought by the State in which the defendant is indicted before he has been afforded or waived a probable-cause hearing, the defendant may as a matter of right depose the State's primary witnesses for that case.  The defendant shall request to take the depositions of those witnesses in accordance with the provisions of G.S. 15A-902."
Sec. 2.  This act shall become effective October 1, 1989.