MEMO
TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 13, 2011
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.
Ms. Hegvik contacted staff to explain why the "to the extent not privileged or prohibited by statute, rule, or regulation" limitation should be added to Rule 12(b). She said the rule mandates disclosure of some information that the state is barred by law from disclosing. She said a recent case involved a student facing expulsion from school. An expulsion hearing was held and witnesses were called. The hearing was confidential under the federal Family Educational Rights and Privacy Act. Yet, Rule 12(b)(1)(A) seems to mandate disclosure of witness information from the hearing in the subsequent juvenile proceeding. Likewise, Rule 12(b)(1)(D) requires the disclosure of reports of examinations and tests, while the Health Insurance Portability and Accountability Act may bar the disclosure of this information in some cases.
While Rule 12(b) does not contain the "to the extent not privileged or prohibited by statute, rule, or regulation" language, it does contain some limitations on discovery:
- Rule 12(b)(1)(c) puts conditions on the disclosure of documents and tangible objects 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.
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.