RULE 12. DISCOVERY
1 (a) Discovery in Deprivation and Termination of Parental Rights
3 (1) Request for Discovery. On written request, each party of whom
4 discovery is requested must, to the extent not privileged or prohibited by statute,
5 rule, or regulation, produce promptly for inspection, copying, or photographing the
6 following information, documents, and material in that party's custody, control, or
8 (A) the names and last known addresses of each witness to the occurrence
9 that forms the basis of the allegation or defense;
10 (B) copies of any written statements made by any party or witness;
11 (C) transcriptions, recordings, and summaries of any oral statements of any
12 party or witness, except the work product of counsel;
13 (D) any scientific or other reports that a party intends to introduce at the
14 hearing or that pertain to physical evidence that a party intends to introduce;
15 (E) photographs and any physical evidence which a party intends to
16 introduce at the hearing; and
17 (F) other evidence favorable to the requesting party and relevant to the
18 subject matter involved in the pending action, including any evidence relevant to
19 the issue of whether a child is deprived.
20 (2) Continuing Duty to Disclose. A party who discovers additional evidence or
21 material must promptly disclose it to the other party or the court if:
22 (A) the evidence or material is subject to discovery or inspection under this
23 rule; and
24 (B) the other party previously requested, or the court ordered, its
26 (3) Order Granting Discovery; Limitations; Sanctions.
27 (A) Motion to Compel. If a request for discovery is refused, application
28 may be made to the court for a written order granting the discovery. Motions for
29 discovery must certify that a request for discovery has been made and refused.
30 (B) Reciprocal Discovery. An order granting discovery may make such
31 discovery reciprocal for all parties to the proceeding, including the party
32 requesting discovery.
33 (C) Limitations on Discovery. On its own or on a party's motion, the court
34 may deny, limit, or set conditions on discovery if granting discovery may:
35 (i) jeopardize the safety of a party, witness, or confidential informant;
36 (ii) result in the production of perjured testimony or evidence;
37 (iii) endanger the existence of physical evidence; or
38 (iv) violate a privileged communication.
39 (D) Failure to Comply. If at any time during the course of the proceedings, a
40 party brings to the attention of the court that a person has failed to comply with an
41 order issued under this rule, the court may grant a continuance, prohibit the person
42 from introducing in evidence the material not disclosed, or enter an order
43 appropriate under the circumstances.
44 (b) Discovery in Delinquency and Unruly Child Proceedings
45 (1) Disclosure by Prosecution Without Order of Court. Upon a written
46 request of the child's counsel, the prosecution must promptly disclose the
48 (A) Hearing Witnesses. The names and addresses of the persons the
49 prosecution intends to call as witnesses at the hearing. The prosecution must
50 permit the child's counsel to inspect and copy the witnesses' relevant written or
51 recorded statements and any written summaries of the substance of relevant oral
52 statements made by the witnesses to the prosecution or agents of the prosecution
53 within the knowledge of the prosecution.
54 (B) Statements of Child and Accomplices. The prosecution must disclose
55 and permit the child's counsel to inspect and copy any relevant written or recorded
56 statements made by the child and accomplices within the possession or control of
57 the prosecution, the existence of which is known by the prosecution, and must
58 provide the child's counsel with the substance of any oral statements made by the
59 child and accomplices that the prosecution intends to offer in evidence at the
61 (C) Documents and Tangible Objects. The prosecution must disclose and
62 permit the child's counsel to inspect and copy books, papers, documents, data,
63 photographs, tangible objects, buildings, or places, or copies or portions of any of
64 these items, if the item is within the prosecution's possession, custody, or control,
66 (i) the item is material to preparing the child's defense;
67 (ii) the prosecution intends to use the item in its case-in-chief at the hearing;
69 (iii) the item was obtained from or belongs to the child.
70 (D) Reports of Examinations and Tests. The prosecution must disclose and
71 permit the child's counsel to inspect and copy any results or reports of physical or
72 mental examinations, scientific tests, experiments or comparisons made that are
73 relevant to the case.
74 (E) Record of the Child. The prosecution must inform the child's counsel of
75 any prior allegations of delinquency which have been proved and of prior
76 adjudications of delinquency of the child within the possession or control of the
78 (F) Special Education and School Disciplinary Records. The prosecution
79 must disclose and permit the child's counsel to inspect and copy all special
80 education and school disciplinary records of the child, which were transmitted by
81 the agency reporting the crime for consideration in charging.
82 (G) Exculpatory Information. The prosecution must disclose to the child's
83 counsel all evidence, known or that may become known to the prosecution,
84 favorable to the child and material either to adjudication or disposition.
85 (H) Scope of the Prosecution's Obligations. The prosecution's obligations
86 under this rule extend to material and information in the possession or control of
87 members of the prosecuting attorney's staff and of any others who have
88 participated in the investigation or evaluation of the matter and who report to the
89 prosecuting attorney's office.
90 (2) Disclosure by Prosecution on Order of Court. Upon motion of the child's
91 counsel, the court at any time before the hearing may require the prosecution to
92 disclose to the child's counsel any information requested that is relevant to guilt,
93 innocence or culpability of the child. If the motion is denied, the court on
94 application of the child must inspect and preserve any relevant information.
95 (3) Information Not Subject to Disclosure by Prosecution.
96 (A) Opinions, Theories or Conclusions. Unless otherwise provided by these
97 rules, any legal research, records, correspondence, reports or memoranda to the
98 extent that they contain the opinions, theories or conclusions of the prosecution or
99 members of the prosecution's staff or officials or agents of the prosecution
100 participating in the matter are not subject to disclosure.
101 (B) Reports. Except as provided in subparagraphs (b)(1)(C) and (D),
102 reports, memoranda or internal documents made by the prosecution or members of
103 the prosecution's staff or by agents of the prosecution in connection with the matter
104 are not subject to disclosure.
105 (4) Disclosure by Child Without Order of Court. Upon the prosecution's
106 written request, the child's counsel must promptly disclose the following:
107 (A) Documents and Tangible Objects. The child's counsel must disclose and
108 permit the prosecution to inspect and copy books, papers, documents, photographs
109 and tangible objects that the child intends to introduce in evidence at the hearing.
110 (B) Reports of Examinations and Tests. The child's counsel must disclose
111 and permit the prosecution to inspect and copy any results or reports of physical or
112 mental examinations, scientific tests, experiments and comparisons made in
113 connection with the particular matter if:
114 (i) the item is within the child's possession, custody, or control; and
115 (ii) the child intends to use the item in the child's case-in-chief at the
116 hearing or intends to call the witness who prepared the report and the report relates
117 to the witness's testimony.
118 (5) Information Not Subject to Disclosure by Child.
119 (A) Opinions, Theories or Conclusions. Unless otherwise provided by these
120 rules, any legal research, records, correspondence, reports or memoranda to the
121 extent that they contain the opinions, theories, or conclusions of the child, the
122 child's counsel, members of counsel's staff or counsel's agents participating in the
123 representation of the child are not subject to disclosure.
124 (B) Reports. Except as provided by (4)(A) and (4)(B), reports, memoranda
125 or internal documents made by the child's counsel or members of counsel's staff, or
126 counsel's agents in connection with the defense of the matter against the child are
127 not subject to disclosure.
128 (6) Regulation of Discovery.
129 (A) Continuing Duty to Disclose. If, after compliance with any discovery
130 rule or order, the prosecution or the child's counsel discovers additional material,
131 information or witnesses subject to disclosure, counsel must promptly notify the
132 opposing side of the existence of the additional material or information and the
133 identity of the witnesses. The prosecution and the child's counsel have a continuing
134 duty at all times before and during the hearing to supply the materials and
135 information required by these rules.
136 (B) Time, Place and Manner of Discovery and Inspection. An order of the
137 court permitting discovery must specify the time, place and manner of making the
138 discovery and inspection permitted and may prescribe such terms and conditions as
139 are just.
140 (C) Custody of Materials. Any materials furnished to the prosecution or the
141 child's counsel under discovery rules or court orders must remain in the custody of
142 the prosecution or the child's counsel and must be used only for the pending case
143 and must be subject to such other terms and conditions as the court may prescribe.
144 (D) Protective Orders. Upon a showing of reasonable cause, the court may
145 at any time order that specified disclosures be restricted or deferred or make such
146 other order as is appropriate. However, all materials and information to which the
147 prosecution or the child's counsel is entitled must be disclosed in time to afford the
148 opportunity to make beneficial use of it.
149 (E) Excision. If only a portion of materials are discoverable under these
150 rules, that portion must be disclosed. If material is excised pursuant to judicial
151 order, it must be sealed and preserved in the records of the court to be made
152 available to the reviewing court in the event of an appeal or habeas corpus
154 (F) Sanctions.
155 (i) Continuance or Order. If at any time it is brought to the attention of the
156 court that the prosecution, the child or child's counsel has failed to comply with an
157 applicable discovery rule or order, the court may upon motion, order discovery or
158 inspection, grant a continuance, or enter such order as it deems just in the
160 (ii) Contempt. Any person who willfully disobeys a court order under these
161 discovery rules may be held in contempt.
162 EXPLANATORY NOTE
163 Rule 12 was adopted effective March 1, 2010. Rule 12 was amended,
165 Juvenile court files and records are not discoverable under this rule.
166 Statutory procedure must be followed to gain access to a juvenile court record.
167 References in this rule to "child's counsel" include the child who is
169 Paragraph (a)(1) was amended, effective___________, to clarify that any
170 evidence relevant to the issue of whether a child is deprived is discoverable under
171 this rule.
172 SOURCES: Joint Procedure Committee minutes of _____________.
173 Juvenile Policy Board Minutes of February 20, 2009; December 5, 2008; August 8,
174 2008; May 9, 2008; February 29, 2008; September 21, 2007; April 20, 2007.
175 STATUTES AFFECTED:
176 CONSIDERED: N.D.C.C. § 27-21-12; 27-20-51
177 CROSS REFERENCE: N.D.Sup.Ct.Admin.R. 19 (Court Records
178 Management Program).