Pretrial Discovery

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University 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
• Pages: 193-220

193

CHAPTER 9

PRETRIAL DISCOVERY

PART A. INTRODUCTION

§ 9.01 The Nature of Discovery in Delinquency Cases;

Scope and Organization of the Chapter

The jurisdictions differ significantly with respect to the 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, court rules, and caselaw. Several

jurisdictions conduct discovery in delinquency cases in accordance with adult criminal

court procedures for discovery. This result is accomplished in some jurisdictions 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 proceedings (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 court rule, discovery procedures 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 nature 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) (notwithstanding 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 virtually equivalent to the liberal discovery rules employed in civil 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 limited than in other civil cases)). Finally, in some jurisdictions the

statutes and court rules are silent about the procedures for, and scope of, discovery in

delinquency cases, and the courts have not yet addressed these issues.

Since most jurisdictions that have addressed the issue treat delinquency proceed-

ings as subject to criminal 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 available 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)provide a quick route to obtaining this material. When the informal

devices fail because t he prosecutor refuses voluntarily 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 examines the informal methods for obtaining discovery. Part

C takes up the formal discovery methods, describing the devices that can be employed

and exploring constitutional doctrines 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 informal 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

criminal cases—both i nformal and formal—remain far more limited than those in civil

practice and are usually inadequate to advise the defense of everything 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 distinctly 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 particular cases there may be other adventitious

opportunities for discovery, such as the coroner’s inquest in homicide cases or a prior

trial resulting in a mistrial. And counsel’s pretrial discovery strategy 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 General Position of the Defense on Discovery

As explained in § 9.01 supra, in those jurisdictions that have addressed the scope of

discovery in delinquency proceedings, the statutes or court decisions usually regulate