‘Memorandum of Agreement Uniform Policy and Procedure Between Buncombe County Office of the District Attorney and Buncombe County Sheriff's Office 1. Background and Purpose ‘This Memorandum of Understanding [MOU] sets forth the terms of understanding between the Buncombe County Office of the District Attorney [DA] and the Buncombe County Sheriff's Office regarding their respective obligations in all cases involving allegations of criminal and/or non-criminal officer misconduct, including investigatory procedure and compliance with the DA's statutory and constitutional discovery obligations. Incidents involving allegations of officer misconduct are of heightened public interest. Investigations ofthese allegations are complex, and It is therefore critical thatthe partes ta this agreement pledge to ensure that 2 thorough, fai, and impartial inquiry into the facts and Circumstances of the alleged misconduct be obtained in every case to ensure maximum public ‘confidence in both law enforcement and our local system of justice. In addition, prosecutors have a constitutional obligation to disclose to @ defendant, in 2 criminal case, evidence favorable to that defendant. While the source ofthis obligation is the United States Constitution, the prosecutor's duty to disclose this information is defined and ‘explained in two seminal United States Supreme Court decisions: Brady and Giglio [hereinafter "Brady/Gielio|. This information specially includes conduct that affects the credibility of witnesses and could constitute impeachment material should the officer testify in a criminal case ‘This disclosure obligation is not limited to materials in the hands of the prosecuting ‘agency. It extends to information “known to the others acting on the government's behaf in the case, including the police.” Kvles v. Whitley, 514 US. at 437. Prosecutors are required to make 2 “reasonably diligent inquiry’ into the existence of Brady/Giglio material that may be in possession of law enforcement. This MOU ensures that prosecutors receive sufficient information to comply with the constitutional requirements of Brady and Giglio while protecting the legitimate privacy rights of law enforcement officers and other witnesses under NCGS §§ 1534-98, 160A-168, and 126-24,N._Brady/Giglio Material Defined ‘The DA is obligated to disclose to the defense in criminal cases any favorable evidence that is material to either guilt or punishment, irrespective of the good faith or bad faith ofthe prosecution "Favorable evidence" includes evidence that is exculpatory (Brady) as well as information ‘that could be used to impeach the testimony ofa prosecution witness (Galo) Materiality does not require a demonstration thatthe undisclosed evidence would have resulted in the defendant's acquittal. Rather, evidence is “material” when the undisclosed evidence would "undermine confidence in the outcome ofthe trial.” Kvls v. Whitley, 514 U.S at 434, Ml, Standard of Proof Triggering Disclosure ‘The standatd of proof fr disclosure of information by the law enforcement agency to the DA shall be the "substantial information” standard. “Substantial information,” for purposes of this agreement, is defined as credible Information that might reasonably be deemed to have undermined confidence in a later conviction in which the law enforcement employee isa witness, and isnot based on mere rumor, unverifiable hearsay, or 2 simple and iresolvable conflict in testimony about an event; n found ta be uneubstantisted after “cubetantial information” excludes allegation: that have b due investigation. ‘The DA considers substantial information to be @ lower evidentiary showing than what ‘would ordinarily sustain @ probable cause showing in a criminal prosecution. The DA further understands that preliminary investigations are often required to establish the existence of substantial information and agrees that the law enforcement agency should not make any «disclosure pursuant to this MOU until any such preliminary investigation is complete. ‘The following types of incidents involving a sworn officer or non-sworn employee ofa law ‘enforcement agency will always trigger disclosure requirements: 1. Substantial information that the officer employed deadly or excessive force as defined by the law enforcement agency's Use of Force policy, regardless of ‘whether the use of such deadly force resulted in injury or death to any person; 2. Substantial information that an officer or employee committed a felony or non- traffic misdemeanor criminal offense or was charged with such an offense while ‘employed with the agency; 3, sustained administrative finding of misconduct that comes within the definition cof Brady/Giglio material set forth in this policy, regardless of any discipline Imposed.IV, Procedure in Cases of Potential Criminal Misconduct [After preliminary inquiry, if substantial information listed in Section Il, subsections 1 or 2 above is found to exist, the law enforcement agency will not initiate an administrative Investigation and will refer to Addendum to this Memorandum of Understanding and follow all policies and procedures referenced therein. If the DA authorizes criminal charges resulting from the policy and procedures outlined in the Addendum, no further action is required under the terms of this MOU and any additional Internal investigation isin the discretion of the law enforcement agency. Ifthe DA declines criminal charges, the law enforcement agency shall then conduct an administrative review subject to the procedures described in this document and make any required disclosures upon completion. V. Procedure in Cases of Potential Non-Criminal Misconduct Upon receipt of substantial information listed in Section Il, subsection 3 above, the parties agree to the following procedure: 4, Disclosure Requirement ‘When there Ie no substantial information to believe that a eriminal offensa was committed, but other substantial information about a sworn officer or non-sworn employee exists as defined in Section Il above, and that sworn officer or non-sworn employee is @ potential witness in a prospective or pending criminal case in Buncombe County, that agency shall inform the DA ofthe matter. 2. Timing of Disclosure ‘The agency will disclose the matter to the DA within a reasonable time ofthis determination, but in no case may the officer or civllan employee testify in a criminal case after such determination unt the information is disclosed to the DA and a determination is made pursuant to the terms of this MOU. 3. Manner of Disclosure ‘The head of the law enforcement agency or their designee, shall prepare 2 summary memorandum of the facts and findings constituting the substantial information, In providing such a summary memorandum, the head of the law enforcement agency agrees, pursuant to N.C.GS. 1604-168, that the inspection of that summary memorandum by the DA is necessary and essential to the DA's legal obligations established by Brady and other law governing the disclosure of potentially exculpatory material. tis further understood that this information is not provided for the purpose of assisting ina criminal prosecution of the agency employee, andthat the DA will not use any information obtained from the summary memorandum for that purpose. If the DA determines that disclosure Is required, the summary memorandum will be turned over to the defense In all cases in which the sworn officer or non-swarn employee is @ witness ‘The summary memorandum shall be delivered directly to the confidential attention of ‘the DA without unnecessary delay. Vi. Annual Certification “The head of the law enforcement agency or their designee shall issue a certification to the DA by etter or e-mail that the agency I current and in compliance with the provisions of ths, MOU. This certification shall occur annually during the first quarter of each calendar year. VI. District Attorney's Office Upon receipt of the summary memorandum the DA shall, within a reasonable time, review the memorandum and contact the law enforcement agency if additional information Is. needed to determine whether disclosure to defendants is required. The DA will consider Brady. Information to be privileged and confidential and maintain the summary memorandum under lock and key. Upon receipt of the summary memorandum the DA shall make one of the following findings: 1. No further action is required based upon a conclusion that no Brady/Gislio material exists. 2. Disclosure ofthe summary memorandum to defendants must be provided in cases In which the law enforcement employee is @ witness, but the DA is willing to proceed with present and future cases, on a case by case basis, and call that person to testify, The DA will communicate with the officer or civilian employee ‘and prepare to address any such matters when the person testifies a trial 3. Disclosure is required, and, because ofthe nature of the information, the DA will ‘not cal that officer or ciillan employee as a witness in any pending or prospective criminal proceedings. ‘The DA or designee shall send written notification of this finding to the head of the ‘employing law enforcement agency and the agency’s attorney within a reasonable time of making the determination. If disclosure toa defendant in a criminal case is required, the DA will obtain a protective ‘order to ensure that privileged and confidential personnel information will not become public record, thatthe use of the information is limited tothe Iitgation ofthe matter before the court ‘and that release ofthe information Is limited tothe parties before the court, After obtaining the 4appropriate protective order, the DA will deliver a copy of the summary memorandum to the defendant and will do so within a reasonable time regardless ofthe procedural status ofthe case. However, ifthe disclosure is made at atime when the case is set for tral, the DA will not proceed to trial until the defendant has had sufficient opportunity to receive the summary memorandum and take any necessary and appropriate action, Ifthe defendant requests additional information from the DA they will be instructed to follow the appropriate judicial and statutory procedures {governing access to public employee personnel records. Duration This MOU may be modified and amended by mutual consent of the parties. This MOU shall become effective upon signature by the head of the law enforcement agency and the elected District Attorney for Buncombe County and will remain in effect until terminated by ‘mutual consent. Tekthe day zon, SSseccce Tod wan vent ier ous trey Shut 40" Prost Dt burcombe county Serf Banco County, Ne Auncombe County, NeADDENDUM to Memorandum of Understanding ‘Specific Procedure for Cases Involving Potential Criminal Misconduct Scope of Agreement This Addendum memoralizes the agreed procedure for handling the following: 1 All encounters where there Is substantial information that an officer used lethal force as defined in the law enforcement agency's Use of Force policy, regardless of whether the use of force resulted in injury or death to any person. ‘Any death of a person while that person isin the custody of an officer or employee. All instances in which substantial information exists that an officer or employee used excessive force in violation ofthe agency's Use of Force Policy. All instances in which substantial information exists that an officer or employee ‘committed any felony or non-traffi misdemeanor criminal offense or was charged with such an offense while employed with the agency. investigatory Procedure - Upon receipt of substantial information of any event listed in subsections 1 or 2 above, the head ofthe law enforcement agency, or his or her designee, will notify he DAas soon 2s possible in addition to requesting an SBI Investigation into the event according to established protocol. When practicable, the DA will join in the request \When a preliminary investigation finds that there Is substantial information of an event listed in subsection 3 or 4 above, and the event occurred within the jurisdiction of the law enforcement agency, the head of the law enforcement agency will notify the DA before Initiating any administrative or criminal investigation. Ifthe DA concludes that the alleged misconduct, iftrue, would constitute a prosecutable criminal offense, the parties willthen decide whether an independent SBI investigation of the matter is warranted. In cases Involving potential criminal conduct occurring outside the jurisdiction of the law enforcement agency, the head of the law enforcement agency will notify the DA, but no further consultation is required. Ifthe DA concludes that the alleged misconduct, true, ‘would not constitute a prosecutable criminal offense, the agency will conduct an appropriate administrative investigation3 Ian independent criminal investigation is determined to be appropriate, the head of the law enforcement agency or thelr designee, and the DA, shall promptly contact the NCBI to request investigative assistance pursuant to NCGS 1438-917. Whenever possible, both the agency and the DA will concurrently request NC $81 assistance. The NC SBI is presumed to be the appropriate agency to provide independent criminal investigative {assistance in all incidents involving lethal force or an in-custody death, Should it be appropriate for an investigative agency other than the NC SBI to investigate fan incident governed by this MOU, the undersigned parties shall meet, confer and ‘mutually agree whether to utllze the assistance of another agency and make the appropriate request of to have the law enforcement agency Investigate the matter Internally. Nothing in this MOU shall be interpreted to prevent the law enforcement agency from conducting a criminal investigation ofits own personnel when appropriate. "Nothing in this MOU or addendum is intended to prevent the law enforcement agency from using the arrest powers listed in N.C. Gen, Stat. 15A-401 when required by the ‘droumstances. In such an event, the arrest and charging of the involved party with all, ‘appropriate offenses should occur after consultation with the DA if permitted by the reumstances, The DA will make reasonable efforts to communicate and coordinate with tw enforcement agencies to ensure the integrity ofthe investigation and that any release of accurate information is done in compliance with ethical obligations and relevant North Carolina statutory and case law. Nothing in this section prevents the DA from independently initiating criminal Investigation by the NC State Bureau of Investigation. Should that occur, the DA shall notify the head of the employing law enforcement agency at or before the time of the official request unless the subject ofthe investigation isthe agency head. Review Procedure Upon receipt of the report of the SB or other Investigating agency, the DA shal, within @ reasonable time, review the memorandum and contact the agency with any additional questions ‘or requests for information. Oncein possession of sufficient information to make the determination the DA shal direct the investigating agency to take out appropriate criminal charges against the subject of the Investigation or find that no criminal charges are appropriate in the case. The DA wil notify the head ofthe law enforcement agency or designee of the decision as soon ass practicable. Absent unusual circumstances, the DA will provide the law enforcement agency access to anyinvestigative reports received from investigating agencies regarding law enforcement agency personnel IV, Brady/ Giglio Notification Procedure ‘After making the appropriate determination a to criminal charges, the DA wil follow the notification procedure outlined in Section Vl of the MOU.