Pretrial Discovery

AuthorAnthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
ProfessionUniversity Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
Pages193-220
193
CHAPTER 9
PRETR I AL DISCOVERY
PART A . INT RODUCTION
§ 9.01 The Nature of Discovery in Delinquency Cases;
Scope and Organization of the Chapter
The jurisdictions differ significantly with respect to t he nature of the discovery
procedures employed in juvenile court and the specificity with which those procedures
are spelled out in the applicable juvenile court statute, cour t rules, and caselaw. Several
jurisdictions conduct discovery in delinquency cases in accordance with adult criminal
court procedures for discover y. This result is accomplished in some jurisdict ions by
juvenile court statutes or cour t rules mirroring the adult standards (see, e.g., D.C . S .
C. J. R 16 (2012) (based on D.C. S. C. C. R 16); F. R J.
P. 8.060 (2012) (based on F. R. C. P. 3.220); N.Y. F. C. A §§ 330.1,
331.1–331.7 (2012) (der ived from N.Y. C. P. L § 200.9 and article 240)); in other
jurisdictions, by juvenile statutes or court rules declaring that the adult discovery rules
shall be applicable to delinquency proceeding s (see, e.g., I. C A. § 31-32-10 -1
(2012); W. R. C A. § 13.40.14 0(7) (2012)); and in still other jurisdictions, by
caselaw holding that in the absence of a statute or cour t rule, discovery procedu res in
delinquency cases should approximate t hose followed in adult criminal cases, see, e.g., Joe
Z . v. Su pe r io r C ou rt , 3 Cal. 3d 797, 801, 478 P.2d 26, 28, 91 Cal. Rptr. 594, 596 (1970). Some
jurisdictions have reacted to the civil natu re of delinquency proceedings by providing
for d iscover y that i s more lib eral t han cri mina l discov ery (see, e.g., People ex rel. Hanrahan
v. Felt, 48 Ill. 2d 171, 175, 269 N.E.2d 1, 4 (1971) (notwithst anding a state statute that
applies criminal discovery rules to delinquency proceedings, court holds that juvenile
court has discret ion to “allow a broader discovery than is allowed in criminal cases”)) or
that is virt ually equivalent to the libera l discovery rules employed in civ il proceedings
(see T.P.S. v. State, 590 S.W.2d 946 , 954 (Tex. Civ. App. 1979) (acknowledging that Texas
Family Code calls for application of civ il discovery rules to delinquency proceedi ngs, but
construi ng the statute in a restrictive man ner and holding that discovery i n delinquency
cases can be more lim ited than in other civil cases)). Finally, in some jurisdictions the
statutes and court r ules are silent about the procedures for, and scope of, discovery in
delinquency cases, and t he courts have not yet addressed these issues.
Since most jurisdictions that have addressed the issue treat delinquency proceed-
ings as subject to crim inal discovery procedures, this chapter will focus on the devices
194 | Tria l Manual for Defense Attor neys in Juvenile Delinquenc y Cases
available for criminal discovery and the arguments that can be made for broadening its
scope in delinquency cases. At torneys who practice in those few jurisd ictions that autho-
rize civil d iscovery in delinquency cases should consult local statute s and caselaw, as well
as the numerous treatises avai lable on the subject of civil discovery.
As a matter of practice, criminal discovery involves two processes or phases: “infor-
mal” and “formal” discovery. Most prosecutors are willing to hand over to the defense
upon request certain categories of materials wh ich it is clear that a court would order the
prosecutor to divulge if t he defense made a motion to discover them. Informal discovery
devices (such as the “discovery letter,” see § 9.05 infra, and the “discovery conference,”
see § 9. 06 infra) prov ide a quick route to obtaining th is material. When the informal
devices fail because t he prosecutor refuses voluntar ily to divulge information requested
by the defense, counsel must turn to “formal discovery devices, such as motions to
compel the prosecutor to disclose the information.
Part B of this chapter exam ines the informal met hods for obtaining discover y. Part
C takes up the formal d iscovery methods, describing the devices that can be employed
and exploring constitutional doctri nes that can be invoked in support of motions for
court-ordered discovery going beyond that provided by statutes and local common law.
Finally, Part D discusses t he prosecutor’s right to discovery from the defense.
While employing i nformal and formal discovery devices, defense counsel should
not lose sight of opportunities to use other pretrial proceedings to acquire informa-
tion about the prosecution’s case. The recognized mechanisms for overt discovery in
crimina l cases—both i nformal and formal—remain far more limited than those i n civil
practice and are usua lly inadequate to advise the defense of ever ything it needs to k now
to prepare fully for t rial. In this current state of t he practice, defense counsel’s ingenuity
in devising self-help techniques is dist inctly at a premium.
Several motions that counsel can file will lead to the prosecutor’s disclosing facts
not previously known to the defense. (See Chapter 7.) Evidentiary hearings, such as
the probable-cause hearing (see §§ 4.28 –4.37 supra) and suppression hearings (see Chap-
ter 22), present invaluable opportunities to uncover additional information. Police and
court records and transcripts of prior judicial proceedings are also important sources to
delve into. See §§ 8.16, 8.19 supra. In par ticular cases there may be other adventitious
opportunit ies for discovery, such as the coroner’s inquest in homicide cases or a prior
trial resulting in a mistrial. And counsel’s pretrial discovery st rategy must, of course,
be coordinated with a complementary strategy of defense investigation. See Chapter 8.
Counsel should be aware that there are additional discovery processes that are acti-
vated at trial. Section 27.12 infra describes those processes and suggests techniques for
invoking their benef its at a sidebar conference immediately prior to the commencement
of the trial.
§ 9.02 The Genera l Position of the Defense on Discovery
As explained in § 9.01 supra, in those ju risdictions that have addressed the scope of
discovery in delinquency proceedings, the statutes or court decisions usually reg ulate

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