‘Memorandum of Agreement. Uniform Policy and Procedure Between Buncombe County Office the Distt Attomey and ‘Ashevile Police Department 1 Background and Purpose “This Memorandum of Understanding [MOU] sels forth the tems of understanding between the Buncombe County Offce of the District Atiomey [DA] and the Asheville Police Department [APD] regarding their respective obligation in all cases involving allegations of criminal andlor non-criminal officer misconduct, including investigatory procedure and compliance with the DA's statulory and constitutional discovery obligations. Incidents involving allegations of officer misconduct are of heightened public interest. Investigations ofthese allegations are complex, and itis therefore critical thatthe parties to this agreement pledge to ensure that a thorough, fat, 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 addon, prosecutors have a constitutional obligation to disclose to a defendant, in a ctiminal case, evidence favorable to that defendant. White the source of this obligation is the United States Constitution, the prosecutors duty to disclose this information is defined and explained in two seminal United States Supreme Court decisions: Brady and Giglio {hereinafter "BradyiGialio'|. This information specifically Includes conduct that affects the credibiity of witnesses and could constitute Impeachment material should the officer testy in a criminal case. “This disclosure obligation is nat limited to materials in the hands of the prosecuting agency. It extends to information "known to the others acting on the government's behalf in the case, Including the police.” Kyles v, Whitley, 514 U.S. at 437. Prosecutors are required to make a "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. 1IL Brady/Giglio Material Defined ‘The DA I obligated to disclose to the defense in criminal cases any favorable evidence that i material to either guit 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 (Giatio) Materiality does not require a demonstration that the undisclosed evidence would have resulted in the defendant's acquital. Rather, evidence is "material" when the undisclosed evidence would "undermine confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. at 434, Il, Standard of Proof Triggering Disclosure ‘The standard of proof for 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 is not based on mere: rumor, unverifiable hearsay, or a simple and irresolvable conflict in testimony about an event. The DA considers substantial information to be a lower evidentiary showing than what would ordinary sustain a 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 APD should not make any disclosure pursuant to this MOU until any such preliminary investigation is complete. “The following types of incidents involving a swom officer or non-sworn employee ‘of a law enforcement agency will always tigger disclosure requirements: 4. Substantial information thatthe 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 nhon-tratfic misdemeanor criminal offense or was charged with such an ‘offense while employed with the agency: 3. A sustained administrative finding of misconduct that comes within the dfinition of Brady/Gialio material set forth inthis policy, regardless of any iscipline imposed; and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 foliow all policies and procedures referenced therein. If the DA authorizes criminal charges resuiting from the policy and procedures coutined in the Addendum, no further action is required. Ifthe DA declines criminal charges, the law enforcement agency shallthen conduct ‘an administrative reviow subject to the procedures described in this document and make ‘any required disclosures upon completion. V. Procedure in Gases of Potential Non-Criminal Upon receipt of substantial Information listed in Section Ill, subsection 3 above, the parties agree to the following procedure: 41. Disclosure Requirement WV. Procedut isconduct When there is no substantial information to believe that a criminal offense was ‘committed, but other substantial information about a swom officer or ion-sworn employee exists as defined in Section Ill above, and that sworn officer or non-swom employee is a potential witness in a prospective or pending criminal case in Buncombe County, that ‘agency shall inform the LA of the matter. 2. Timing of Disclosure The agency will disclose the matter to the DA within a reasonable time of this determination, but in no case may the officer or civilian employee testify in a criminal case after such determination untl the information is disclosed to the DA and a determination s made pursuant to the terms of this MOU. 3. Manner of isclosure ‘The head of the law enforcement agency or their designee, shall prepare a 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.G.S, 160A-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 ‘ateral, It fs further understood that this information is not provided for the purpose of assieting in a 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 tumed over to the defense in all cases in which the sworn officer or non-sworn employee is a witness,