RULE 12. DISCOVERY
(a) Discovery in Deprivation and Termination of Parental Rights Proceedings
(1) Request for Discovery. On written request, each party of whom discovery is requested must, to the extent not privileged or prohibited by statute, rule, or regulation, produce promptly for inspection, copying, or photographing the following information, documents, and material in that party's custody, control, or possession:
(A) the names and last known addresses of each witness to the occurrence that forms the basis of the allegation or defense;
(B) copies of any written statements made by any party or witness;
(C) transcriptions, recordings, and summaries of any oral statements of any party or witness, except the work product of counsel;
(D) any scientific or other reports that a party intends to introduce at the hearing or that pertain to physical evidence that a party intends to introduce;
(E) photographs and any physical evidence which a party intends to introduce at the hearing; and
(F) other evidence favorable to the requesting party and relevant to the subject matter involved in the pending action.
(2) Continuing Duty to Disclose. A party who discovers additional evidence or material must promptly disclose it to the other party or the court if:
(A) the evidence or material is subject to discovery or inspection under this rule; and
(B) the other party previously requested, or the court ordered, its production.
(3) Order Granting Discovery; Limitations; Sanctions.
(A) Motion to Compel. If a request for discovery is refused, application may be made to the court for a written order granting the discovery. Motions for discovery must certify that a request for discovery has been made and refused.
(B) Reciprocal Discovery. An order granting discovery may make such discovery reciprocal for all parties to the proceeding, including the party requesting discovery.
(C) Limitations on Discovery. On its own or on a party’s motion, the court may deny, limit, or set conditions on discovery if granting discovery may:
(i) jeopardize the safety of a party, witness, or confidential informant;
(ii) result in the production of perjured testimony or evidence;
(iii) endanger the existence of physical evidence; or
(iv) violate a privileged communication.
(D) Failure to Comply. If at any time during the course of the proceedings, a party brings to the attention of the court that a person has failed to comply with an order issued under this rule, the court may grant a continuance, prohibit the person from introducing in evidence the material not disclosed, or enter an order appropriate under the circumstances.
(b) Discovery in Delinquency and Unruly Child Proceedings
(1) Disclosure by Prosecution Without Order of Court. Upon a written request of the child’s counsel, the prosecution must, to the extent not privileged or prohibited by statute, rule, or regulation, promptly disclose the following:
(A) Hearing Witnesses. The names and addresses of the persons the prosecution intends to call as witnesses at the hearing. The prosecution must permit the child's counsel to inspect and copy the witnesses' relevant written or recorded statements and any written summaries of the substance of relevant oral statements made by the witnesses to the prosecution or agents of the prosecution within the knowledge of the prosecution.
(B) Statements of Child and Accomplices. The prosecution must disclose and permit the child's counsel to inspect and copy any relevant written or recorded statements made by the child and accomplices within the possession or control of the prosecution, the existence of which is known by the prosecution, and must provide the child's counsel with the substance of any oral statements made by the child and accomplices that the prosecution intends to offer in evidence at the hearing.
(C) Documents and Tangible Objects. The prosecution must disclose and permit the child's counsel to inspect and copy books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies or portions of any of these items, if the item is within the prosecution's possession, custody, or control, and:
(i) the item is material to preparing the child’s defense;
(ii) the prosecution intends to use the item in its case-in-chief at the hearing; or
(iii) the item was obtained from or belongs to the child.
(D) Reports of Examinations and Tests. The prosecution must disclose and permit the child's counsel to inspect and copy any results or reports of physical or mental examinations, scientific tests, experiments or comparisons made that are relevant to the case.
(E) Record of the Child. The prosecution must inform the child’s counsel of any prior allegations of delinquency which have been proved and of prior adjudications of delinquency of the child within the possession or control of the prosecution.
(F) Special Education and School Disciplinary Records. The prosecution must disclose and permit the child's counsel to inspect and copy all special education and school disciplinary records of the child, which were transmitted by the agency reporting the crime for consideration in charging.
(G) Exculpatory Information. The prosecution must disclose to the child’s counsel all evidence, known or that may become known to the prosecution, favorable to the child and material either to adjudication or disposition.
(H) Scope of the Prosecution's Obligations. The prosecution’s obligations under this rule extend to material and information in the possession or control of members of the prosecuting attorney’s staff and of any others who have participated in the investigation or evaluation of the matter and who report to the prosecuting attorney’s office.
(2) Disclosure by Prosecution on Order of Court. Upon motion of the child's counsel, the court at any time before the hearing may require the prosecution to disclose to the child's counsel any information requested that is relevant to guilt, innocence or culpability of the child. If the motion is denied, the court on application of the child must inspect and preserve any relevant information.
(3) Information Not Subject to Disclosure by Prosecution.
(A) Opinions, Theories or Conclusions. Unless otherwise provided by these rules, any legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecution or members of the prosecution's staff or officials or agents of the prosecution participating in the matter are not subject to disclosure.
(B) Reports. Except as provided in subparagraphs (b)(1)(C) and (D), reports, memoranda or internal documents made by the prosecution or members of the prosecution's staff or by agents of the prosecution in connection with the matter are not subject to disclosure.
(4) Disclosure by Child Without Order of Court. Upon the prosecution’s written request, the child's counsel must, to the extent not privileged or prohibited by statute, rule, or regulation, promptly disclose the following:
(A) Documents and Tangible Objects. The child's counsel must disclose and permit the prosecution to inspect and copy books, papers, documents, photographs and tangible objects that the child intends to introduce in evidence at the hearing.
(B) Reports of Examinations and Tests. The child's counsel must disclose and permit the prosecution to inspect and copy any results or reports of physical or mental examinations, scientific tests, experiments and comparisons made in connection with the particular matter if:
(i) the item is within the child's possession, custody, or control; and
(ii) the child intends to use the item in the child's case-in-chief at the hearing or intends to call the witness who prepared the report and the report relates to the witness's testimony.
(5) Information Not Subject to Disclosure by Child.
(A) Opinions, Theories or Conclusions. Unless otherwise provided by these rules, any legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories, or conclusions of the child, the child's counsel, members of counsel's staff or counsel's agents participating in the representation of the child are not subject to disclosure.
(B) Reports. Except as provided by (4)(A) and (4)(B), reports, memoranda or internal documents made by the child's counsel or members of counsel's staff, or counsel's agents in connection with the defense of the matter against the child are not subject to disclosure.
(6) Regulation of Discovery.
(A) Continuing Duty to Disclose. If, after compliance with any discovery rule or order, the prosecution or the child's counsel discovers additional material, information or witnesses subject to disclosure, counsel must promptly notify the opposing side of the existence of the additional material or information and the identity of the witnesses. The prosecution and the child's counsel have a continuing duty at all times before and during the hearing to supply the materials and information required by these rules.
(B) Time, Place and Manner of Discovery and Inspection. An order of the court permitting discovery must specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
(C) Custody of Materials. Any materials furnished to the prosecution or the child's counsel under discovery rules or court orders must remain in the custody of the prosecution or the child's counsel and must be used only for the pending case and must be subject to such other terms and conditions as the court may prescribe.
(D) Protective Orders. Upon a showing of reasonable cause, the court may at any time order that specified disclosures be restricted or deferred or make such other order as is appropriate. However, all materials and information to which the prosecution or the child's counsel is entitled must be disclosed in time to afford the opportunity to make beneficial use of it.
(E) Excision. If only a portion of materials are discoverable under these rules, that portion must be disclosed. If material is excised pursuant to judicial order, it must be sealed and preserved in the records of the court to be made available to the reviewing court in the event of an appeal or habeas corpus proceeding.
(i) Continuance or Order. If at any time it is brought to the attention of the court that the prosecution, the child or child's counsel has failed to comply with an applicable discovery rule or order, the court may upon motion, order discovery or inspection, grant a continuance, or enter such order as it deems just in the circumstances.
(ii) Contempt. Any person who willfully disobeys a court order under these discovery rules may be held in contempt.
Rule 12 was adopted effective March 1, 2010.
Juvenile court files and records are not discoverable under this rule. Statutory procedure must be followed to gain access to a juvenile court record.
References in this rule to “child’s counsel” include the child who is self-represented.
Sources: Juvenile Policy Board Minutes of February 20, 2009; December 5, 2008; August 8, 2008; May 9, 2008; February 29, 2008; September 21, 2007; April 20, 2007. Ohio R. Juv. P. 24; Minn. R. Juv. Del. P. 10.04, 10.05, 10.06; N.D.R.Crim.P. 16.
Considered: N.D.C.C. §§ 27-21-12; 27-20-51
Cross Reference: N.D. Sup. Ct. Admin. R. 19 (Court Records Management Program).