Bill Summary for H 704 (2023-2024)

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Summary date: 

Apr 19 2023

Bill Information:

View NCGA Bill Details2023-2024 Session
House Bill 704 (Public) Filed Tuesday, April 18, 2023
Intro. by Blackwell, John, Greene, Carson Smith.

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Bill summary

In a criminal prosecution, certain information that pertains to the credibility of an officer (Giglio information) must be disclosed to the defense. Current law requires that an officer be notified if they may not be called to testify based on Giglio information.  

Amends GS 17C-16 (Giglio obligations for individuals either certified by or employees of the NC Criminal Justice Education and Training Standards Commission [Commission]) and GS 17E-16 (Giglio obligation for justice officers in the office of the sheriff or certified by the North Carolina Sheriffs' Education and Training Standards Commission [Sheriffs’ Commission]) by amending that notification process as follows.

Defines Notification as a notification issued pursuant to GS 17C-16(b)/GS-17E-16(b)’s “Notification to be Reported” subsection to any person who is certified by the Commission/Sheriffs’ Commission or who has received a conditional offer of employment. Defines Notifying Authority as a superior court judge, district court judge, federal judge, district attorney, assistant district attorney, United States attorney, assistant United States attorney, or the person's agency head.

Requires preliminary notice to be issued to a person by a Notifying Authority if the Notifying Authority is considering sending a Notification at least 30 days before sending the Notification to that person, the Criminal Justice Division of the Department of Justice (Division), or the person’s agency head. Specifies that if the Notifying Authority cannot reasonably provide the written preliminary notice before making a disclosure at trial, in reference to the person’s bias, lack of credibility, or interest, the Notifying Authority cannot send the Notification to any party until the person has received written preliminary notice under GS 17C/17E-16 and the opportunity to be heard.  Lists four things that must be contained in preliminary notice, including what evidence the Notifying Authority is considering in anticipation of making the determination and the date, time, and location that a person may be heard and present material in their defense. Requires that opportunity to be heard at a meeting on the preliminary notice occur no sooner than 30 days after providing the person with preliminary notice. Prohibits the Notifying Authority from disallowing the person the opportunity to be accompanied by counsel at any meeting related to the preliminary notice or Notification. If the Notifying Authority determines that Notification is warranted, requires the Notifying Authority to, within 30 days of the meeting, notify the person in writing that they may not be called at trial due to bias, interest, or lack of credibility along with their right to file an appeal (a request for hearing) in superior court and the consequences if the person does not take an appeal. 

Sets forth an appeal process in superior court from a Notification as well as an appeal from a preliminary notice. Allows for a person who received a Notification to invoke both. Specifies that if a person chooses to take either appeal that they have no obligation to report the Notification to the Division or the person's agency head until completion of the appeals process. Bars the Notifying Authority from reporting the Notification to the Division or the person’s agency head until the conclusion of the appeals process. Prevents the Notifying Authority from reporting the Notification to the Division or Agency Head if it does not comply with GS 17C-16(b)/GS-17E-16(b), including the meeting discussed above.

Sets the evidentiary standard in an appeal of Notification as whether a preponderance of evidence establishes that if the person were called to testify in a criminal court case, applicable law would require that the person's bias, interest, or lack of credibility be disclosed to the defense. Allows for evidentiary hearings necessary to make that determination where both person and Notifying Authority have the right to be heard. Requires findings of fact and conclusions of law. Specifies process for notification if person loses on appeal and for revocation of the Notification if the Notifying Authority does not prevail. Requires a different superior court judge to conduct all appeal hearings if the Notifying Authority was a superior court judge.

Limits the considerations on appeal of a preliminary notice to whether the person received preliminary notice and whether notice conformed to the statutory requirements. Sets the evidentiary standard as preponderance of the evidence and requires findings of fact/conclusions of law. If the superior court finds that the contents of the notice complied with the statutory requirements requires that the meeting described above occur within a specified time. Provides for preliminary notice if the Notifying Authority does not prevail.

Expands notified person’s and Notifying Authority’s reporting duties to the notified person’s agency head.  Permits a Notifying Authority to reverse, rescind, or otherwise remove a Notification upon receipt of additional supporting or corroborating information, or a change in factual circumstances, or for any other reason, at any time. Requires notice to notified person, the Division, and the agency head in writing if that occurs.  Provides a process for notified person to request to be exempt from the Division's reporting requirements. Expands exemption from public records provision to exempt reports and notifications received by a person and the person’s agency head, in addition to the Division from State public records law.

Provides that GS 17C-16(b)/GS-17E-16(b) should not be construed to limit the constitutional obligations of prosecutors and judges related to Giglio information. Prohibits employers from using a disclosure notification as a sole reason for demotion, suspension, termination or any other disciplinary action. Permits employers to use the underlying facts that were the basis for the Notification to take disciplinary action against the law enforcement officer in line with the law enforcement agency’s adopted procedures and governing law.

Allows for retroactive review of Notifications under GS 17C-16(b)/GS-17E-16(b) as amended by the act. Amends reporting requirements by changing the report due date.

Makes conforming and organizational changes.