Juvenile Discovery Practice
**This is the basic Discovery Rule which states the requirements for what must be turned over as well
as setting the Time Frame for such disclosures.
**Under West Virginia Law, Counsel in a Juvenile case is typically entitled to all information
which is known, or should be known to the Prosecution, or could be known to the Prosecution with
reasonable investigation. I typically file a Standard Motion for Discovery and Brady Motion in every
Juvenile Delinquency case anyways just to make sure that the State and the Court are put on notice.
W. VA. R.Juv.P., Rule 21
RULE 21. Discovery
(a) Initial Disclosures. The prosecuting attorney shall advise the juvenile's counsel in writing of the
following:
(1) Evidence obtained against the juvenile as a result of any search, seizure or electronic forms of
recording voice, pictures or both;
(2) Statements made by the juvenile including the names of individuals present at the time of the
statement and the relationship, if any, to the juvenile;
(3) Evidence acquired or discovered as a result of the statements referenced in subparagraph (b); and
(4) A narrative of identification procedures involving the juvenile including live or photo lineups.
(b) Disclosures Prior to Adjudication. The prosecuting attorney shall make the following disclosures in
anticipation of adjudication:
(1) Witnesses. The name, address and telephone number of witnesses the state intends to call in its
case-in-chief, and any prior written or recorded statement of such witnesses.
(2) Statements of Accomplices. Summaries of oral statements and copies of transcribed recorded
statements made by accomplices of the juvenile.
(3) Documents and Tangible Objects. Permit the juvenile's counsel to inspect and copy relevant books,
papers, documents, photographs and tangible objects that the state intends to introduce at
adjudication.
(4) Reports of Examinations and Tests. Provide copies of reports of physical, mental, scientific tests or
examinations. A written summary of the anticipated testimony regarding such reports shall also be
provided.
(5) Juvenile's Record. Provide the juvenile's counsel with prior allegations of delinquency, prior
adjudications and improvement periods.
(6) Exculpatory Information. Disclose to the juvenile's attorney any material or information known to the
state that tends to disprove the allegations of the petition or be in mitigation at disposition.
(7) Prior Statements. Any prior written or recorded statements of the juvenile.
(c) Disclosure by the Juvenile. The juvenile's counsel shall make the following disclosures:
(1) Witnesses. The name, address and telephone number of witnesses the juvenile intends to call in the
juvenile's case-in-chief, and any prior written or recorded statement of such witnesses.
(2) Documents and Tangible Objects. Permit the prosecuting attorney to inspect and copy relevant
books, papers, documents, photographs and tangible objects that the juvenile intends to introduce at
adjudication.
(3) Reports of Examinations and Tests. Provide copies of reports of physical, mental, scientific tests or
examinations which the juvenile intends to introduce in the juvenile's case in chief at the adjudicatory
hearing. A written summary of the anticipated testimony regarding such reports shall also be provided.
(4) Notice of Specific Defenses. Inform the prosecuting attorney in writing of any of alibi, entrapment,
duress, insanity, self-defense and lack of jurisdiction defense.
(d) Time Limitations.
(1) Juvenile Detained. If the juvenile is detained in a facility operated by the Division of Juvenile Services:
(A) Initial disclosures by the state under paragraph (a) shall be made not less than five days prior to the
date set for the preliminary hearing.
(B) Disclosures by the state under paragraph (b) shall be made not less than ten days prior to the date
set for the adjudicatory hearing.
(C) Disclosures by the juvenile under paragraph (c) shall be made not less than ten days prior to the date
set for the adjudicatory hearing.
(2) Juvenile Not Detained. If the juvenile is not detained in a facility operated by the Division of Juvenile
Services or is released prior to the time limitations imposed by Rule 27(a), disclosures under paragraphs
(a), (b), and (c) shall be made not less than 30 days prior to the date set for the adjudicatory hearing.
(3) Upon motion and for good cause shown the court may alter the time limitations provided by this
rule.
(e) Further Disclosure by the State.
(1) Nothing in these rules shall prohibit the juvenile from filing a motion with three days prior notice to
the state and prior to adjudication requiring the state to disclose to the juvenile's counsel any additional
information relevant to the juvenile's innocence, guilt or culpability.
(2) If the court denies the motion, upon application of the juvenile's counsel the court shall inspect and
preserve such information, identified by the juvenile's counsel with some specificity.
(f) Further Disclosures by the Juvenile.
(1) Upon motion by the prosecuting attorney with three days prior notice to the juvenile's counsel and a
showing that the sought procedures listed below will be material in determining whether or not the
juvenile committed an alleged act or acts, the court at any time prior to adjudication may, subject to
constitutional limitations, order the juvenile to:
(A) appear in a line up;
(B) speak for a witness for the purpose of voice identification;
(C) be fingerprinted;
(D) permit measurements and weight of the juvenile's body;
(E) pose for non-reenactment photographs;
(F) permit the taking of blood, hair or saliva samples;
(G) provide handwriting specimens; and
(H) submit to reasonable physical or medical examination.
(g) Information Not Subject to Disclosure.
(1) Pertaining to the Juvenile. Unless otherwise provided by these rules, any legal research, records,
correspondence, reports or memoranda to the extent they contain opinions, theories, or conclusions of
the juvenile, the juvenile's counsel, members of counsel's staff or counsel's agents participating in the
representation of the juvenile are not subject to disclosure.
(2) Pertaining to the State. Unless otherwise provided by these rules, any legal research, records,
correspondence reports or memoranda to the extent they contain opinions, theories, or conclusions of
the prosecuting attorney, members of prosecuting attorney's staff, or police agencies participating in
the representation of the state are not subject to disclosure.
(h) Depositions. Depositions for adjudications shall be taken and used under the same conditions as
depositions pursuant to Rule 15 of the West Virginia Rules of Criminal Procedure.
(i) Continuing Duty to Disclose. If after compliance with any discovery rule or court order, the
prosecuting attorney or counsel for the juvenile discovers additional material information or witnesses
subject to disclosure, counsel shall promptly notify opposing counsel of the existence of the additional
information.
(j) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that
certain discovery or inspection be denied, restricted or deferred, or make such other order as is
appropriate. Upon motion by the state or juvenile, the court may permit the party to make such
showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If
the court enters an order granting relief following such an ex parte showing, the entire text of the
party's statement shall be sealed and preserved in the records of the court to be made available to the
appellate court in the event of an appeal.
** Section 49-5-2 is especially important for discovery purposes in cases where your Juvenile Client
has made a statement. Determining where the Statement was taken, who was present during the
taking of the Statement, and the age of the Juvenile are all important factors for Filing a Motion to
Suppress based on 49-5-2(l).
W. Va. Code, § 49-5-2
§ 49-5-2. Juvenile jurisdiction of circuit courts, magistrate courts and municipal courts; constitutional
guarantees; hearings; evidence and transcripts
(a) The circuit court has original jurisdiction of proceedings brought under this article.
(b) If during a criminal proceeding in any court it is ascertained or appears that the defendant is under
the age of nineteen years and was under the age of eighteen years at the time of the alleged offense,
the matter shall be immediately certified to the juvenile jurisdiction of the circuit court. The circuit court
shall assume jurisdiction of the case in the same manner as cases which are originally instituted in the
circuit court by petition.
(c) Notwithstanding any other provision of this article, magistrate courts have concurrent juvenile
jurisdiction with the circuit court for a violation of a traffic law of West Virginia, for a violation of section
nine, article six, chapter sixty, section three or section four, article nine-a, chapter sixteen, or section
nineteen, article sixteen, chapter eleven of this code, or for any violation of chapter twenty of this code.
Juveniles are liable for punishment for violations of these laws in the same manner as adults except that
magistrate courts have no jurisdiction to impose a sentence of incarceration for the violation of these
laws.
(d) Notwithstanding any other provision of this article, municipal courts have concurrent juvenile
jurisdiction with the circuit court for a violation of any municipal ordinance regulating traffic, for any
municipal curfew ordinance which is enforceable or for any municipal ordinance regulating or
prohibiting public intoxication, drinking or possessing alcoholic liquor or nonintoxicating beer in public
places, any other act prohibited by section nine, article six, chapter sixty or section nineteen, article
sixteen, chapter eleven of this code or underage possession or use of tobacco or tobacco products, as
provided in article nine-a, chapter sixteen of this code. Municipal courts may impose the same
punishment for these violations as a circuit court exercising its juvenile jurisdiction could properly
impose, except that municipal courts have no jurisdiction to impose a sentence of incarceration for the
violation of these laws.
(e) A juvenile may be brought before the circuit court for proceedings under this article only by the
following means:
(1) By a juvenile petition requesting that the juvenile be adjudicated as a status offender or a juvenile
delinquent; or
(2) By certification or transfer to the juvenile jurisdiction of the circuit court from the criminal
jurisdiction of the circuit court, from any foreign court, or from any magistrate court or municipal court
in West Virginia.
(f)(1) If a juvenile commits an act which would be a crime if committed by an adult, and the juvenile is
adjudicated delinquent for that act, the jurisdiction of the court which adjudged the juvenile delinquent
continues until the juvenile becomes twenty-one years of age. The court has the same power over that
person that it had before he or she became an adult, and has the further power to sentence that person
to a term of incarceration: Provided, That any such term of incarceration may not exceed six months.
This authority does not preclude the court from exercising criminal jurisdiction over that person if he or
she violates the law after becoming an adult or if the proceedings have been transferred to the court's
criminal jurisdiction pursuant to section ten of this article.
(2) If a juvenile is adjudicated as a status offender because he or she is habitually absent from school
without good cause, the jurisdiction of the court which adjudged the juvenile a status offender
continues until either the juvenile becomes twenty-one years of age, completes high school, completes
a high school equivalent or other education plan approved by the court, or the court otherwise
voluntarily relinquishes jurisdiction, whichever occurs first. If the jurisdiction of the court is extended
pursuant to this subdivision, the court has the same power over that person that it had before he or she
became an adult: Provided, That no person so adjudicated who has attained the age of nineteen may be
ordered to attend school in a regular, nonalternative setting.
(g) A juvenile is entitled to be admitted to bail or recognizance in the same manner as an adult and shall
be afforded the protection guaranteed by Article III of the West Virginia Constitution.
(h) A juvenile has the right to be effectively represented by counsel at all stages of proceedings under
the provisions of this article. If the juvenile or the juvenile's parent or custodian executes an affidavit
showing that the juvenile cannot afford an attorney, the court shall appoint an attorney, who shall be
paid in accordance with article twenty-one, chapter twenty-nine of this code.
(i) In all proceedings under this article, the juvenile shall be afforded a meaningful opportunity to be
heard. This includes the opportunity to testify and to present and cross-examine witnesses. The general
public shall be excluded from all proceedings under this article except that persons whose presence is
requested by the parties and other persons whom the circuit court determines have a legitimate
interest in the proceedings may attend: Provided, That in cases in which a juvenile is accused of
committing what would be a felony if the juvenile were an adult, an alleged victim or his or her
representative may attend any related juvenile proceedings, at the discretion of the presiding judicial
officer: Provided, however, That in any case in which the alleged victim is a juvenile, he or she may be
accompanied by his or her parents or representative, at the discretion of the presiding judicial officer.
(j) At all adjudicatory hearings held under this article, all procedural rights afforded to adults in criminal
proceedings shall be afforded the juvenile unless specifically provided otherwise in this chapter.
(k) At all adjudicatory hearings held under this article, the rules of evidence applicable in criminal cases
apply, including the rule against written reports based upon hearsay.
(l) Except for res gestae, extrajudicial statements made by a juvenile who has not attained fourteen
years of age to law-enforcement officials or while in custody are not admissible unless those
statements were made in the presence of the juvenile's counsel. Except for res gestae, extrajudicial
statements made by a juvenile who has not attained sixteen years of age but who is at least fourteen
years of age to law-enforcement officers or while in custody, are not admissible unless made in the
presence of the juvenile's counsel or made in the presence of, and with the consent of, the juvenile's
parent or custodian, and the parent or custodian has been fully informed regarding the juvenile's right
to a prompt detention hearing, the juvenile's right to counsel, including appointed counsel if the
juvenile cannot afford counsel, and the juvenile's privilege against self-incrimination.
(m) A transcript or recording shall be made of all transfer, adjudicatory and dispositional hearings held in
circuit court. At the conclusion of each of these hearings, the circuit court shall make findings of fact and
conclusions of law, both of which shall appear on the record. The court reporter shall furnish a transcript
of the proceedings at no charge to any indigent juvenile who seeks review of any proceeding under this
article if an affidavit is filed stating that neither the juvenile nor the juvenile's parents or custodian have
the ability to pay for the transcript
*As the Rules of Criminal Procedure apply equally in Juvenile Proceedings as in Adult Proceedings, the
sanctions that can be imposed upon the Prosecution for failure to comply with the Discovery Rules
and Discovery Requests are varied, and within the sole discretion of the court to determine as per
Subsection (d) of Rule 16 points out.
*On numerous occasions I have filed Motions to Dismiss based on a failure of the Prosecution
to turn over information which I was entitled to under the Discovery Rules. I have yet to have one of
those motions granted. Typically the Judge will grant a continuance of the Adjudicatory Hearing to
allow Discovery to be turned over and examined.
W. Va. R.Crim.P., Rule 16
RULE 16. Discovery and Inspection
(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon request of a defendant the state must disclose to the defendant and
make available for inspection, copying, or photographing: any relevant written or recorded statements
made by the defendant, or copies thereof, within the possession, custody or control of the state, the
existence of which is known, or by the exercise of due diligence may become known, to the attorney for
the state; that portion of any written record containing the substance of any relevant oral statement
made by the defendant, whether before or after arrest in response to interrogation by any person then
known to the defendant to be an agent of the state; and recorded testimony of the defendant before a
grand jury which relates to the offense charged. The state must also disclose to the defendant the
substance of any other relevant oral statement made by the defendant whether before or after arrest in
response to interrogation by any person then known by the defendant to be an agent of the state if the
state intends to use that statement at trial. Upon request of a defendant which is an organization such
as a corporation, partnership, association or labor union, the state must disclose to the defendant any of
the foregoing statements made by a person who the state contends:
(i) Was, at the time of making the statement, so situated as a director, officer, employee, or agent as to
have been able legally to bind the defendant in respect to the subject of the statement; or
(ii) Was, at the time of the offense, personally involved in the alleged conduct constituting the offense
and so situated as a director, officer, employee or agent as to have been able legally to bind the
defendant in respect to that alleged conduct in which the person was involved.
(B) Defendant's Prior Record. Upon request of the defendant, the state shall furnish to the defendant
such copy of his or her prior criminal record, if any, as is within the possession, custody or control of the
state, the existence of which is known, or by the exercise of due diligence may become known, to the
attorney for the state.
(C) Documents and Tangible Objects. Upon request of the defendant, the state shall permit the
defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects,
buildings or places, or copies or portions thereof, which are within the possession, custody and control
of the state, and which are material to the preparation of the defense or are intended for use by the
state as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon request of the defendant the state shall permit the
defendant to inspect and copy or photograph any results or reports of physical or mental examinations,
and of scientific tests or experiments, or copies thereof, which are within the possession, custody or
control of the state, the existence of which is known, or by the exercise of due diligence may become
known, to the attorney for the state, and which are material to the preparation of the defense or are
intended for use by the state as evidence in chief at the trial.
(E) Expert Witnesses. Upon request of the defendant, the state shall disclose to the defendant a written
summary of testimony the state intends to use under
Rule 702, 703, or 705 of the Rules
of Evidence during its case in chief at trial. The summary must describe the witnesses' opinions, the
bases and reasons therefor, and the witnesses' qualifications.
(F) State Witnesses. Upon request of the defendant, the state shall furnish to the defendant a written
list of names and addresses of all state witnesses whom the attorney for the state intends to call in the
presentation of the case in chief, together with any record of prior convictions of any such witnesses
which is within the knowledge of the state. When a request for discovery of the names and addresses of
witnesses has been made by a defendant, the state may be allowed to perpetuate the testimony of such
witnesses in accordance with the provisions of Rule 15.
(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), (D) and (E) of
subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda or
other internal official documents made by the attorney for the state or other state officials in
connection with the investigation or prosecution of the case, or of statements made by state witnesses
or prospective state witnesses except as provided in Rule 26.2.
(3) Grand Jury Transcripts. Except as provided in Rules 6, 12(i) and 26.2, and subdivision (a)(1)(A) of this
rule, these rules do not relate to discovery or inspection of recorded proceedings of a grand jury.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or
(D) of this rule, upon compliance with such request by the state, the defendant, on request of the state,
shall permit the state to inspect and copy or photograph books, papers, documents, photographs,
tangible objects or copies or portions thereof, which are within the possession, custody or control of the
defendant and which the defendant intends to introduce as evidence in chief at the trial.
(B) Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(C)
or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the
state, shall permit the state to inspect and copy or photograph any results or reports of physical or
mental examinations and of scientific tests or experiments made in connection with the particular case,
or copies thereof, within the possession or control of the defendant, which the defendant intends to
introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant
intends to call at the trial when the results or reports relate to that witness' testimony.
(C) Expert Witnesses. If the defendant requests disclosure under subdivision (a)(1)(E) of this rule and the
state complies, the defendant, at the state's request, must disclose to the state a written summary of
testimony the defendant intends to use under Rules 702, 703, and 705 of the Rules of Evidence as
evidence at trial. The summary must describe the opinions of the witnesses, the bases and reasons
therefor, and the witnesses' qualifications.
(D) Defense Witnesses. If the defendant requests disclosure under subdivision (a)(1)(F) of this rule, upon
compliance with such request by the state, the defendant, on the request of the state, shall furnish the
state with a list of the names and addresses of the witnesses the defendant intends to call in the
presentation of the case in chief.
When a request for discovery of the names and
addresses of witnesses has been made by the state, the defendant may be allowed to perpetuate the
testimony of such witnesses in accordance with the provisions of Rule 15.
(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does
not authorize the discovery or inspection of reports, memoranda, or other internal defense documents
made by the defendant, or the defendant's attorneys or agents, in connection with the investigation or
defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by
prospective state or defense witnesses, to the defendant, the defendant's agents or attorneys, except as
provided in Rule 26.2.
(c) Continuing Duty to Disclose. If, prior to or during trial, a party discovers additional evidence or
material previously requested or ordered, which is subject to discovery or inspection under this rule,
such party shall promptly notify the other party or that other party's attorney or the court of the
existence of the additional evidence or material.
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that
the discovery or inspection be denied, restricted or deferred, or make such other order as is
appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole
or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an
order granting relief following such an ex parte showing, the entire text of the party's statement shall
be sealed and preserved in the records of the court to be made available to the appellate court in the
event of an appeal.
(2) Failure to Comply With a Request. If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with this rule, the court may order such
party to permit the discovery or inspection, grant a continuance, or prohibit the party from
introducing evidence not disclosed, or it may enter such other order as it deems just under the
circumstances. The court may specify the time, place and manner of making the discovery and
inspection and may prescribe such terms and conditions as are just.
(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.