A BILL TO BE ENTITLED
AN ACT to provide for open discovery in felonies and to make certain other amendments to the laws regarding discovery in criminal cases and to appropriate funds to implement this act.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 15A‑902 reads as rewritten:
"§ 15A‑902.  Discovery procedure.
(a)	A party seeking discovery under this Article must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request. A written request is not required if the opposing party agrees in writing to waive that requirement. Upon receiving a negative or unsatisfactory response, or upon the passage of seven days following the receipt of the request without response, the party requesting discovery may file a motion for discovery under the provisions of this Article concerning any matter as to which voluntary discovery was not made pursuant to request.
(b)	To the extent that discovery authorized in this Article is voluntarily made in response to a request, or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article.
(c)	A motion for discovery under this Article must be heard before a superior court judge.
(d)	If a defendant is represented by counsel, he may as a matter of right request voluntary discovery from the State under subsection (a) above not later than the tenth working day after either the probable‑cause hearing or the date he waives the hearing. If a defendant is not represented by counsel, or is indicted or consents to the filing of a bill of information before he has been afforded or waived a probable‑cause hearing, he may as a matter of right request voluntary discovery from the State under subsection (a) above not later than the tenth working day after
(1)	The defendant's consent to be tried upon a bill of information, or the service of notice upon him that a true bill of indictment has been found by the grand jury, or
(2)	The appointment of counsel – whichever is later.
For the purposes of this subsection a defendant is represented by counsel only if counsel was retained by or appointed for him prior to or during a probable‑cause hearing or prior to execution by him of a waiver of a probable‑cause hearing.
(e)	The State may as a matter of right request voluntary discovery from the defendant, when authorized under this Article, at any time not later than the tenth working day after disclosure by the State with respect to the category of discovery in question.
(f)	A motion for discovery made at any time prior to trial may be entertained if the parties so stipulate or if the judge for good cause shown determines that the motion should be allowed in whole or in part."
SECTION 2.  G.S. 15A‑903 reads as rewritten:
"§ 15A‑903.  Disclosure of evidence by the State – Information subject to disclosure.
																		
(a)	Upon motion of the defendant, the court must order the prosecutor to do the following:
(1)	To make available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term "file" includes, but is not limited to:  the defendant's statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant. The defendant shall have the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein.
(2)	To provide the discovery required in G.S. 15A‑903.
(3)	If the State may call an expert witness at trial, the State shall furnish to the defendant notice of the same. Each such expert shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert's curriculum vitae. The State shall give the notice and furnish the materials required by subdivision (1) of this subsection 20 working days prior to trial.
(4)	To give the defendant, at the beginning of jury selection, a written list of the names of all other witnesses whom the State may call during the trial. Names of witnesses shall not be subject to disclosure if the State certifies to the court that to do so may subject the witnesses or others to physical or substantial economic harm or coercion, or that there is other particularized, compelling need not to disclose. The certification to the court shall be in writing and placed under seal.
(5)	The term "statement," as used in subdivisions (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."
SECTION 3.  G.S. 15A‑904 reads as rewritten:
"§ 15A‑904.  Disclosure  by the State – Certain information not subject to disclosure.
		
(a)	The State is not required to disclose written materials drafted by the prosecuting attorney or the prosecuting attorney's legal staff for their own use at trial, including witness examinations, voir dire questions, opening statements, and closing arguments. Disclosure is also not required of legal research or of records, correspondence, reports, memoranda, or trial preparation interview notes prepared by the prosecuting attorney or by members of the prosecuting attorney's legal staff.
(b)	This section shall have no effect on a prosecutor's duty to comply with federal or State constitutional disclosure requirements."
SECTION 4.  G.S. 15A‑905 reads as rewritten:
"§ 15A‑905.  Disclosure of evidence by the defendant – Information subject to disclosure.
(a)	Documents and Tangible Objects. – If the court grants any relief sought by the defendant under G.S. 15A‑903(d), the court must, upon motion of the State, order the defendant to permit the State to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the defendant and which the defendant may introduce in evidence at the trial.
(b)	Reports of Examinations and Tests. – If the court grants any relief sought by the defendant under G.S. 15A‑903(e), the court must, upon motion of the State, order the defendant to permit the State 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 and control of the defendant which the defendant may introduce in evidence at the trial or which were prepared by a witness whom the defendant may call at the trial, when the results or reports relate to his testimony. In addition, upon motion of a prosecutor, the court must order the defendant to permit the prosecutor to inspect, examine, and test, subject to appropriate safeguards, any physical evidence or a sample of it available to the defendant if the defendant may offer such evidence, or tests or experiments made in connection with such evidence, as an exhibit or evidence in the case.
(c)	Disclosure by the defendant of alibi defense pursuant to State's request. – 
(1)	State's Request for notice and Defendant's Response. – The State may request in writing that the defendant notify the State of any intended alibi defense. The request must state the time, date, and place of the alleged offense. Within 10 days after the request, or at some other time the court sets, the defendant must serve written notice on the State of any intended alibi defense. The defendant's notice must state each specific place where the defendant claims to have been at the time of the alleged offense and the name of each alibi witness on whom the defendant intends to rely.
(2)	Disclosing State's witnesses. – If the defendant serves a notice under subdivision (c)(1) of this subsection, the State must disclose in writing to the defendant or the defendant's attorney the name of each witness the State intends to rely on to establish the defendant's presence at the scene of the alleged offense and each State's rebuttal witness to the defendant's alibi defense. Unless the court directs otherwise, the State must give its notice of disclosure under subdivision (c)(2) of this section within 10 days after the defendant serves notice of an intended alibi defense under subdivision (c)(1) of this subsection, but no later than 10 days before trial.
(3)	Continuing Duty to disclose. – Both the State and the defendant must promptly disclose in writing to the other party the name of each additional witness if the disclosing party learns of the witness before or during trial, and the witness should have been disclosed under subdivisions (1) and (2) of this section if the disclosing party had known of the witness earlier.
(4)	Exceptions. – For good cause, the court may grant an exception to any requirement of subdivisions (1) through (3).
(5)	Failure to Comply. – If a party fails to comply with this section, the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. This section does not limit the defendant's right to testify.
(6)	Inadmissibility of Withdrawn intention. – Evidence of an intention to rely on an alibi defense, later withdrawn, or of a statement made in connection with that intention is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.
(b)	If the court grants any relief sought by the defendant under G.S. 15A‑903, the court must, upon motion of the State, order the defendant to do the following:
(1)	To provide the discovery required by G.S. 15A‑905.
(2)	To give notice to the prosecutor of the intent to offer at trial a defense of duress, entrapment, insanity, mental infirmity, diminished capacity, self defense, accident, automatism, involuntary intoxication, or voluntary intoxication. As to only the defenses of duress, entrapment, insanity, automatism, or involuntary intoxication, such notice by the defendant shall contain specific information as to the nature and extent of the defense. Such notice of defense as described in this paragraph is inadmissible against the defendant. Such notice of defense must be given within 20 working days of when the case is initially set for trial pursuant to G.S. 7A‑49.4, or such other later time as set by the court.
(3)	If the defendant may call an expert witness at trial, the defendant shall furnish to the State notice of the same. Each such expert shall prepare, and the defendant shall furnish to the prosecutor, a report of the results of the examinations or tests conducted by the expert. The defendant shall also furnish to the prosecutor the expert's curriculum vitae. The defendant shall give the notice and furnish the materials required by this subsection within 20 working days prior to trial.
(4)	To give the State, at the beginning of jury selection, a written list of the names of all other witnesses whom the defendant may call during the trial. Names of witnesses shall not be subject to disclosure if the defendant certifies to the court that to do so may subject the witnesses or others to physical or substantial economic harm or coercion, or that there is other particularized, compelling need not to disclose. The certification to the court shall be in writing and placed under seal."
SECTION 5.  G.S. 15A‑908(a) reads as rewritten:
"(a)	Upon written motion of a party and a finding of good cause, which may include, but is not limited to a finding that there is a substantial risk to any person or physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, the court may at any time order that discovery or inspection be denied, restricted, or deferred, or may make other appropriate orders. A party may apply ex parte for a protective order and, if an ex parte order is granted, the opposing party shall receive notice that the order was entered, but without disclosure of the nature or content of the order."
SECTION 6.  G.S. 15A‑910 reads as rewritten:
"§ 15A‑910.  Regulation of discovery – Failure to comply.
(a)	If at any time during the course of the proceedings the court determines that a party has failed to comply with this Article or with an order issued pursuant to this Article, the court in addition to exercising its contempt powers may
(1)	Order the party to permit the discovery or inspection, or
(2)	Grant a continuance or recess, or
(3)	Prohibit the party from introducing evidence not disclosed, or
(3a)	Declare a mistrial, or
(3b)	Dismiss the charge, with or without prejudice, or
(4)	Enter other appropriate orders.
(b)	Prior to finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article or an order issued pursuant to this Article."
SECTION 7.  G.S. 15A‑959 reads as rewritten:
"§ 15A‑959.  Notice of defense of insanity; pretrial determination of insanity.
(a)	If a defendant intends to raise the defense of insanity, he must within the time provided for the filing of pretrial motions under G.S. 15A‑952 file a notice of his intention to rely on the defense of  insanity as provided in G.S. 15A‑905(c) and, if the case is not subject to that section, within a reasonable time prior to trial. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make other appropriate orders.
(b)	In cases not subject to the requirements of G.S. 15A‑905(c), if a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he must within a reasonable time prior to trial of the time provided for the filing of pretrial motions under G.S. 15A‑952(b) file a notice of that intention. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make other appropriate orders.
(c)	Upon motion of the defendant and with the consent of the State  the court may conduct a hearing prior to the trial with regard to the  defense of insanity at the time of the offense. If the court determines that the defendant has a valid defense of insanity with regard to any criminal charge, it may dismiss that charge, with prejudice, upon making a finding to that effect. The court's denial of relief under this subsection is without prejudice to the defendant's right to rely on the defense at trial. If the motion is denied, no reference to the hearing may be made at the trial, and recorded testimony or evidence taken at the hearing is not admissible as evidence at the trial."
SECTION 8.  G.S. 15A‑501 is amended by adding a new subdivision to read:
"(6)	Must make available to the prosecutor on a timely basis all materials and information acquired in the course of all felony investigations. This responsibility is a continuing affirmative duty."
SECTION 9.  There is appropriated from the General Fund to the Administrative Office of the Courts the sum of fifty thousand dollars ($50,000) for the 2004-2005 fiscal year to implement this act.
SECTION 10.  This act becomes effective October 1, 2004.