What is Discovery and Why Don’t I Have It Yet? Disclosure of Evidence Laws in NC


What is Discovery?

When someone is arrested, one of the first things they will often ask is “where is the evidence?” Evidence gathered by the prosecution when someone is charged with a crime is commonly referred to as discovery. Often incorrectly called a “motion of discovery,” since in some jurisdictions attorneys must file a motion to obtain it, discovery consists of all the evidence the state has in its possession that it intends to use at trial.

Discovery will include paper evidence such as:

  • police narratives
  • witness statements
  • lab reports
  • investigative documents
  • social media posts
  • text or social media messages
  • criminal records
  • medical records
  • phone records
  • police property control records
  • restitution information
  • business records
  • or any other relevant documents

It also includes any digital media such as:

  • police body worn camera video
  • police dashcam video
  • surveillance video
  • video recordings collected from the parties
  • social media video
  • doorbell camera video
  • phone dumps from seized phones
  • 911 calls
  • pictures of a scene or evidence collected
  • recorded interviews
  • or any other relevant media

Not all of this material may be present in every case. The prosecutor will gather the evidence from law enforcement and turn it over to your attorney to review with you. Often your attorney will notice that certain evidence that should be discoverable (which means evidence that should be turned over as discovery) is missing or has not been provided yet. Reviewing discovery is a crucial and time-consuming part of every single criminal case. Hidden amongst hours of videos and interviews might be a thread that unravels an entire case. An experienced lawyer, like the ones here at Jetton and Meredith, will spend hours reviewing all of the material in your case to determine how strong the state’s case is against you.

Will I Get All the Evidence?

Under the discovery statutes, you are entitled to have what the prosecutor has. That means if the prosecutor has evidence that they intend to use at trial, North Carolina law states that they must turn it over to your attorney so that you can review it. The only exceptions to that rule are the notes or work product that the prosecutor has generated. The duty to disclose evidence is also continuing, so if new evidence comes up in your case during an interview or while reviewing the file, the prosecutor must disclose that evidence. Failure to disclose such evidence by the DA can result in sanctions that vary from milder punishments like a continuance or a recess to examine the new evidence, to more severe penalties like exclusion of the evidence or even a dismissal of the charges in rare cases.

There are long-established constitutional rulings that force the prosecutor to disclose any evidence that tends to show that a person is not guilty. This material is called “Brady Material.” If there are any interviews, lab results, or videos that would show someone did not commit a crime, the state cannot hide them. Additionally, if a law enforcement officer has a history of discipline, has been suspended from duty, or testified untruthfully, the prosecutor is supposed to provide that information in discovery as well. That material is known as “Giglio Material.” Failure to provide that material will result in your case being dismissed or overturned on appeal if you are convicted.

Be warned that discovery means you only get what the prosecutor has, not what you wished they had. In many cases, you may want certain pieces of evidence like surveillance video or DNA results. However, if law enforcement did not gather this evidence during the investigation and the prosecution does not have it, then it cannot be discoverable material. If your lawyer believes that the state can get the evidence, they can either talk the state into collecting it or use the refusal to provide that evidence as a talking point at trial.

Finally, certain lawyers may tell you that you are not entitled to an actual copy of your discovery. While technically true under ethics rulings, that is a very poor practice. An experienced lawyer will give you copies of all the paper evidence and let you watch the digital media as many times as you need before you make decisions about your case. Lawyers will not give copies of your discovery to loved ones or family members; discovery includes sensitive material about your case and in the wrong hands it could be devastating. If you need to discuss what is in your discovery with other parties, ask your lawyer about how to best accomplish that.

When Do I Get My Discovery

There is no hard and fast rule for when a person accused of a crime receives their discovery. The discovery process does not need to begin until a case is moved to Superior Court. That means that for misdemeanor charges, which stay in the District Court until appealed, discovery is only provided if the state agrees to do so. There is no legal right to discovery in a misdemeanor matter. However, the state may agree to provide evidence in misdemeanors since the alternative creates crowded dockets and inefficiency.

Once a felony case is in Superior Court, the prosecution must start gathering discovery to release to the defendant. That process can take months. Unless you are in a jurisdiction with strict time limits, most counties are flexible and allow the DA to give evidence all the way through arraignment. That means that the evidence the prosecutor has must be revealed to you for review before you decide whether to accept any plea offer in your case. It is not unheard of that even after a case goes forward to trial, prosecutors are still dumping evidence the week before or sometimes the day of trial. Courts are not helpful on this issue; judges have lots of discretion and can allow even last minute evidence to be admissible in court.

Unfortunately, there is no concrete rule which states if you don’t get your discovery in 60 days, 90 days, or 180 days that your case is automatically thrown out. The process of waiting for discovery can be the most tedious and time consuming part of the case. Your lawyer should keep you updated throughout the wait and make sure you are kept updated of any changes to your case. But a long wait for discovery is normal, and does not automatically mean that the state is having issues with your case. Once the discovery arrives, the final review process of the case can begin in earnest with your lawyer.

If you or anyone you know is waiting to receive or has recently received discovery in a criminal case, call the experienced attorneys at Jetton and Meredith at (704) 931-5535 today! We can help you make sense of the evidence, and your options. Our attorneys will gather all the available discovery in your case and fight hard for you.