What is a Motion to Compel Discovery?

What is “discovery”? Discovery is the process in either criminal or civil procedure of providing information to the other side. In criminal law, discovery is usually – although not always – provided by the State to the Defendant.

Discovery is all that information collected by the state and its agencies which the Defendant is entitled to have in order so that the Defendant can prepare his defense for trial.

North Carolina has an “open file” discovery statute, which requires the state to provide all information in the District Attorney’s files, as well as any investigative agencies – public or private – who participated in the investigation of the case.

Open file discovery only exists in Superior Court for Felony cases. It does not apply to felony cases still in District Court. And it does not apply to misdemeanor cases appealed to Superior Court.

Upon indictment – most felony cases are indicted by a grand jury in North Carolina – a defendant must first request that the District Attorney voluntarily comply with the State’s open file discovery statute at 15A-902.

If the State does not fully comply within 7 days, the Defendant or his attorney may file a motion requesting that a judge  order the District Attorney to comply.

In reality, most discovery is not received within this time frame. That’s because many cases are more complex, requiring more time to assemble the discovery and give it to the Defense.

The District Attorney also has an obligation to seek out discovery in the possession of police agencies, DSS, or private agencies employed by the state to conduct certain kinds of testing or investigation.

In addition to the statute, the Defendant has further discovery options under both State and Federal case law. On the Federal level, the major cases are Brady, Ritche, Kyles and so forth.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.