TO: Joint Procedure Committee
FROM: Andy Forward
DATE: August 2, 2010
RE: Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation
The Chair has inquired whether Rule 707 would apply to juvenile matters, specifically, the delinquent offense of driving under the influence. Rule 707 seems applicable to delinquency proceedings.
In general, juvenile proceedings are civil in nature. In re R. Y., 189 N.W.2d 644, 650-51 (N.D. 1971); see also In re T.A.F., 2010 WL 2623785, ¶ 22 (Ohio App. 2010). Rule 707 applies in criminal trials .
Rule 707 allows a defendant to exercise his or her sixth amendment confrontation rights against the person who prepared an analytical report. The North Dakota Supreme Court has held that the sixth amendment does not apply to termination of parental rights and juvenile deprivation proceedings. In re B.B., 2007 ND 115, ¶ 14, 735 N.W.2d 855. In delinquency proceedings however, the sixth amendment probably does apply. The Court has held "that reasonable grounds to believe the child committed delinquent acts must be established by witnesses who are available for confrontation and cross-examination." Eastburn v. J.K.H., 392 N.W.2d 406, 408 (N.D. 1986). "This requirement usually precludes the use of hearsay evidence about the delinquent acts, such as testimony or written reports about interviews with participants." Id.
The United States Supreme Court has also established the constitutional requirements of a juvenile delinquency proceeding, including the right to confrontation:
Some of the constitutional requirements attendant
the state criminal trial have equal application to that part of the state juvenile
proceeding that is adjudicative in nature. Among these are the rights to
appropriate notice, to counsel, to confrontation and to cross-examination, and
the privilege against self-incrimination. Included, also, is the standard of proof
beyond a reasonable doubt.
McKeiver v. Pennsylvania, 403 U.S. 528, 533-34 (1971).
Section 27-20-27, N.D.C.C., governs other basic rights under the Uniform Juvenile Court Act, and states:
1. A party is entitled to the opportunity to introduce evidence and otherwise be heard in the party's own behalf and to cross-examine adverse witnesses.
2. A child charged with a delinquent act need not be a witness against or otherwise incriminate oneself. An extrajudicial statement, if obtained in the course of violation of this chapter or which would be constitutionally inadmissible in a criminal proceeding, may not be used against a child. Evidence illegally seized or obtained may not be received over objection to establish the allegations made against a child. A confession validly made by a child out of court is insufficient to support an adjudication of delinquency unless it is corroborated in whole or in part by other evidence.
Under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), an analytical report submitted into evidence without following the requirements of Rule 707 would be constitutionally inadmissible in a criminal proceeding. Therefore, the report would also be inadmissible in a delinquency proceeding under N.D.C.C. § 27-20-27(2). Consequently, Rule 707 would apply in a juvenile delinquency proceeding.
There may be a conflict between Rule 707 and N.D.R.Juv.P. 2, hearing time. Rule 707 requires the prosecution to notify the defendant or the defendant's attorney of its intent to introduce an analytical report at least 30 days before the trial. Under Rule 2(a)(3)(A), a hearing on the petition must be held within 30 days of filing the petition. This would require the prosecution to notify a juvenile of its intent to introduce an analytical report at the time of filing the petition, which would be difficult. Rule 2(c) however, allows a court to continue a hearing under N.D.R.Juv.P. 9.
The Committee may wish to consider whether it wants to address this issue in the Juvenile Procedure Rules or in Rule 707. It is also possible that nothing needs to be done to the rules, because N.D.R.Juv.P. 9 allows a court to continue a juvenile hearing.