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Hey, Where’s My Discovery?


What’s the Issue?

Recently our office has been made aware that not every jurisdiction handles the distribution of discovery the same way.  Traditionally, the assistant district attorney will receive discovery from law enforcement and share with defense counsel. Some jurisdictions practice “open file discovery,” where the prosecution delinquency file is made available to defense counsel to inspect and copy. Yet in other jurisdictions, the juvenile court counselor receives the discovery from law enforcement, and places it in their file, separate from the court file.

What’s the Law?

Under NCGS 7B-2300, the petitioner must disclose, on motion of the juvenile:

  1. statements of the juvenile

  2. names of witnesses

  3. documents and tangible objects and

  4. reports of examinations and tests


Presumably, the U.S. and North Carolina criminal rights to discovery would also apply (see NCGS 7B-2405).   The confusion arises because the term “petitioner” is defined as “[t]he individual who initiates court action by the filing of a petition . . . alleging the matter for adjudication.”  It’s unclear if this refers to the court counselor, who procedurally initiates the court action by determining whether to file a complaint as a petition, the prosecutor, who has the authority to file the petition and overrule a decision not to file, or someone else.

Because the court counselor generally makes the determination of whether or not to file the complaint, she might receive discoverable information, such as described in 7B-2300, to make the decision.  Note that whatever information is in the court counselor’s possession, either in document or electronic form, is immediately accessible to the attorney via NCGS 7B-3001, and doesn’t need a discovery motion.  There doesn’t appear to be any law or rule which provides that, after the decision is made to file the petition, the discovery is turned over to the assistant district attorney.  So it would seem this is why the information may remain with the court counselor, instead of with the assistant district attorney.

Best Practice?

Receiving discovery is essential to juvenile defense practice.  It’s impossible to consider the strengths and weaknesses of the state’s case without law enforcement field reports, statements, evidence logs, examination reports, etc.  And remember that the number one piece of evidence against youth is their own words!  So should juvenile defenders rely on court counselors or prosecutors to receive this critical information?

While some may say it depends on the relationships you have with these individuals, it seems that the best practice would be to receive discovery from the assistant district attorney.  First, prosecutors are used to this process, and may even have a defender-friendly open file policy.  Second, prosecutors, as trained attorneys, are better equipped to make the legal decisions of what is and is not discoverable.  And on that note, if you have trouble receiving what you ought to be receiving and have to file motions to compel, the court counselors aren’t in a position to argue to the court the legal validity of their position.  Additionally, it may be better practice to have a set, established plan to receive this information in a routine manner.  Individuals may come and go, and you don’t want to be reinventing this process every time there’s turnover.

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