A BILL TO BE ENTITLED
AN ACT to increase the reliability of in‑custody informant statements through the use of pretrial hearings that establish facts sufficient to overcome a rebuttable presumption of inadmissibility.
The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 15A of the General Statutes is amended by adding a new article to read:
"Article 54.
"Reliability of In‑Custody Informant Statements.
"§ 15A‑981.  Pretrial hearing to corroborate in‑custody informant statement.
(a)	Definition. – As used in this section, the term "in‑custody informant" means a person, other than a codefendant, percipient witness, accomplice, or co‑conspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the in‑custody informant were held within a city or county jail, a State correctional institution, or otherwise in custody of law enforcement, where statements relate to offenses that occurred outside of the confinement.
(b)	Corroboration of In‑Custody Informant Testimony. – A defendant shall not be convicted of an offense or receive an aggravated sentence if the only supporting evidence presented to a judge or jury is the testimony of an in‑custody informant. The additional evidence must independently tend to connect the defendant with the offense committed and must include evidence other than the testimony of another in‑custody informant.
(c)	Notice to Victim of Leniency for In‑Custody Informant. – If an in‑custody informant receives leniency related to a pending charge, a conviction, or a sentence for a crime against a victim in connection with offering or providing testimony against a suspect or defendant, the prosecutor shall notify the victim. For purposes of this section, leniency means any plea bargain, reduced or dismissed charges, bail consideration, reduction, or modification of sentence.
(d)	No Disclosure of In‑Custody Informant's Identity. – Upon motion of the prosecution and on a showing that the disclosure of the in‑custody informant's identity would endanger the informant, that the informant's services to the State would be undermined, or for other reasons found compelling by the court, the identity of the in‑custody informant may be redacted and remain undisclosed to the defense until such time as the court deems disclosure appropriate or disclosure is required by law.
(e)	Pretrial Hearing to Determine Reliability. – The court shall conduct a pretrial hearing to determine whether the reliability of the testimony of the in‑custody informant is sufficient to overcome a rebuttable presumption of inadmissibility, unless the defendant waives such hearing.
(f)	Certification and Burden of Proof Regarding Reliability. – Where a pretrial hearing is held to determine the reliability and admissibility of the testimony of the in‑custody informant, the judge shall (i) require certification from the district attorney vouching for the trustworthiness of the in‑custody informant and (ii) determine whether the prosecution has proven by a preponderance of the evidence that the testimony of the in‑custody witness is reliable.
(g)	Rebuttable Presumption of Inadmissibility. – The rebuttable presumption of inadmissibility may be overcome by a determination of reliability by the trial judge after consideration of the following relevant factors:
(1)	The source of the information that the informant is providing.
(2)	The specifics of the statements, including date, time, place, names of others present, other circumstances surrounding the statement, and whether the statement contains details which could reasonably be accessed by the in‑custody informer, other than through inculpatory statements by the accused.
(3)	The time and place of the disclosure to law enforcement or other official.
(4)	Whether the person is a substance abuser or has a history of substance abuse.
(5)	Relevant medical or psychological reports.
(6)	The person's general character, which may be evidenced by the person's criminal history.
(7)	The person's relationship or history with the defendant.
(8)	Whether the witness requested, received, has been promised any inducement, or could have reasonably expected to receive an inducement, including pay, immunity from or leniency in prosecution, and personal advantage or assistance.
(9)	Any other criminal case in which the witness testified to alleged confessions or statements by others and any findings in relation to the accuracy and reliability of that evidence.
(10)	Whether the informant made some written or other record of the words allegedly spoken by the accused and, if so, whether the record was made contemporaneous to the alleged statements of the accused.
(11)	The amount of time between the alleged statement and the informant's revelation of the statement.
(12)	Prior recantations by the informant.
(13)	Verification of correctional records.
(14)	Whether the informant was intentionally placed by law enforcement or prosecution.
(15)	The ability of the informant to have committed the crime.
(16)	Conflicting statements or facts.
(17)	Any other evidence that may attest to or diminish the reliability of the witness.
(h)	Jury Instruction Regarding In‑Custody Informant Testimony. – In any case in which the judge finds the in‑custody informant's testimony admissible, the judge shall instruct the jury that the in‑custody informant's testimony must be scrutinized with regard to reliability and that, in considering the reliability of the in‑custody informant, the jury may consider any of the following:
(1)	Whether the witness has received, has been promised, or could have reasonably expected any inducement in exchange for testimony.
(2)	Whether the witness has ever recanted or otherwise changed the witness's testimony during the investigation or prosecution of the case.
(3)	The general character of the witness, including the witness's criminal history.
(4)	The nature of the relationship between the defendant and the witness.
(5)	Whether there is any evidence that tends to independently corroborate the witness's testimony.
(6)	Any other evidence that may attest to or diminish the reliability of the witness.
The judge may not inform the jury that the court held an admissibility hearing or that the court made any pretrial determinations regarding the reliability of the witness's testimony.
(i)	Policies and Procedures Governing the Recording and Use of Testimony. – Each district attorney shall establish policies and procedures governing the recording and use of in‑custody informant testimony, including maintenance of a central file preserving all records relating to contacts with in‑custody informants, whether they are used as witnesses or not.
(j)	Recording of In‑Custody Informant Interview. – All interviews of in‑custody informants shall be recorded using a visual recording device that provides an authentic, accurate, unaltered, and uninterrupted record of the interview that clearly shows both the interviewer and the in‑custody informant.
(k)	Destruction or Modification of Recording After Appeals Exhausted. – The State shall not destroy or alter any electronic recording of an in‑custody informant interview until one year after the completion of all State and federal appeals of the conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings. Every electronic recording shall be clearly identified and catalogued by law enforcement personnel."
SECTION 2.  This act becomes effective December 1, 2019, and applies to offenses committed on or after that date.