MEMO
TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: Dec. 29, 2010
RE: Rule 12, N.D.R.Juv.P., Discovery
Rule 12 came before the Committee at the September 2010 meeting. Assistant Cass County State's Attorney Kim Hegvik suggested that the rule be amended to add the language "to the extent not privileged or prohibited by statute, rule, or regulation" to subdivision (b) of the rule, which governs discovery in delinquency and unruly child proceedings. At the September meeting, the Committee asked staff to perform additional research on whether the recommended language should be added to the rule.
Rule 12, as originally drafted and as approved by the Juvenile Policy Board, was intended to be a fairly simple rule that would apply to all juvenile proceedings. It did not include a separate section covering discovery in delinquency and unruly child proceedings. The language "to the extent not privileged or prohibited by statute, rule, or regulation" was part of the original proposal's general provision governing discovery requests.
When this Committee reviewed the rule in May 2009 it identified problems with the rule and recommended that the Supreme Court not approve it. In particular, the Committee determined that the rule should have specific limits on discovery in delinquency and unruly child proceedings and that specific procedures for discovery should apply in these proceedings. The Supreme Court accepted the Committee's recommendations and assigned staff to draft additional language for the rule.
Staff drafted a new subdivision (b) for the rule based on N.D.R.Crim.P. 16 and Minn. R.Juv.Del.P. 10.04, 10.05 and 10.06. The final version of Rule 12 approved by the Court contained the new subdivision (b). Neither the Juvenile Policy Board nor the Joint Procedure Committee reviewed the final version of Rule 12 prior to its adoption.
The limitation "to the extent not privileged or prohibited by statute, rule, or regulation" applies to discovery under Rule 12(a). Rule 12(b), while it does not contain this specific language, contains numerous limitations on discovery:
- Rule 12(b)(1)(C) puts conditions on the disclosure of reports, examinations and tests by the prosecution;
- Rule 12(b)(1)(H) outlines the scope of the prosecution's disclosure obligations;
- Rule 12(b)(3) protects "opinions, theories or conclusions" and "reports, memoranda or internal documents" from disclosure by the prosecution;
- Rule 12(b)(4)(B) puts conditions on the disclosure of reports, examinations and tests by the child;
- Rule 12(b)(5) protects "opinions, theories or conclusions" and "reports, memoranda or internal documents" from disclosure by the child;
- Rule 12(b)(6)(D) allows the prosecution and the child to obtain protective orders.
Given the protections included in these provisions, the additional language proposed by Ms. Hegvik may not be needed. A proposal adding "to the extent not privileged or prohibited by statute, rule, or regulation" to Rule 12(b)(1) and 12(b)(4) as recommended by Ms. Hegvik is attached.