7.3Discovery and Disclosures

A.As of Right (No Discovery Request Required)

“The following materials are discoverable as of right in all proceedings and shall be produced no less than 21 days before trial, even without a discovery request:

(a) all written or recorded statements and notes of statements made by the juvenile or respondent that are in possession or control of petitioner or a law enforcement agency, including oral statements if they have been reduced to writing;

(b) all written or recorded statements made by any person with knowledge of the events in possession or control of petitioner or a law enforcement agency, including, but not limited to, police reports, allegations of neglect and/or abuse included on a complaint submitted to Child Protective Services, and Child Protective Services investigation reports, except that the identity of the reporting person shall be protected in accordance with MCL 722.625;

(c) the names of all prospective witnesses;

(d) a list of all prospective exhibits;

(e) a list of all physical or tangible objects that are prospective evidence that are in the possession or control of petitioner or a law enforcement agency;

(f) the results of all scientific, medical, psychiatric, psychological, or other expert tests, experiments, or evaluations, including the reports or findings of all experts, that are relevant to the subject matter of the petition;

(g) the results of any lineups or showups, including written reports or lineup sheets;

(h) all search warrants issued in connection with the matter, including applications for such warrants, affidavits, and returns or inventories;

(i) any written, video, or recorded statement that pertains to the case and made by a witness whom the party may call at trial;

(j) the curriculum vitae of an expert the party may call at trial and either a report prepared by the expert containing, or a written description of, the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying bases of that opinion; and

(k) any criminal record that the party may use at trial to impeach a witness.” MCR 3.922(A)(1).

“[I]n addition to disclosures required by provisions of law and as required or allowed by [MCR 3.922(A)(1)-(3)], a party shall provide all other parties the following, which are discoverable as of right and, even without a discovery request, shall be produced no less than 21 days before trial:

(a) a description or list of criminal convictions, known to the respondent’s attorney or prosecuting attorney, of any witness whom the party may call at trial;

(b) any exculpatory information or evidence known to the prosecuting attorney;

(c) any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case even if that person is not a prospective witness at trial; and

(d) any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.” MCR 3.922(B)(1).

Notwithstanding any provisions of MCR 3.922, “there is no right to have disclosed or to discover information or evidence that is protected by constitution, statute, or privilege, including information or evidence protected by a respondent’s right against self-incrimination, except as provided in [MCR 3.922(B)(3)].” MCR 3.922(B)(2). See Section 7.3(D) for more information on discovering protected and privileged information.

Hearings regarding disposition, review, designation, violation of order or probation, and detention. “At delinquency dispositions, reviews, designation hearings, hearings on alleged violation of court orders or probation, and detention hearings, the following must be provided to the respondent, respondent’s counsel, and the prosecuting attorney no less than 7 days before the hearing:

(a) detention screening results, risks and needs assessments results, other assessments, and evaluations to be considered by the court during the hearing;

(b) documents including but not limited to police reports, witnesses statements, reports prepared by probation officers, reports prepared by intake officers, and reports prepared by placement/detention staff to be considered by the court during the hearing; and

(c) predisposition reports and documentation regarding recommendations in the report including but not limited to documents regarding restitution.” MCR 3.922(B)(4).

B.By Motion

“On motion of a party, the court may permit discovery of any other materials and evidence, including untimely requested materials and evidence that would have been discoverable of right under [MCR 3.922](A)(1) if timely requested. Absent manifest injustice, no motion for discovery will be granted unless the moving party has requested and has not been provided the materials or evidence sought through an order of discovery.”¹ MCR 3.922(A)(2).

C.Depositions

“Depositions may only be taken as authorized by the court.” MCR 3.922(A)(3).

D.Protected and Privileged Information

“[N]otwithstanding any other provision of [MCR 3.922], there is no right to have disclosed or to discover information or evidence that is protected by constitution, statute, or privilege, including information or evidence protected by respondent’s right against self-incrimination, except as provided in [MCR 3.922(B)(3)].” MCR 3.922(B)(2).

Under MCR 3.922(B)(3), “if respondent demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the court shall conduct an in camera inspection of the records.” MCR 3.922(B)(3). If the court is satisfied that the records reveal evidence necessary to the defense, “the court shall direct that such evidence . . . be made available to respondent’s counsel.” MCR 3.922(B)(3)(b). “If the privilege is absolute, and the privilege holder refuses to waive the privilege” to permit an in camera inspection, or disclosure if so ordered, “the court shall suppress or strike the privilege holder’s testimony.” MCR 3.922(B)(3)(a)-(b). Notwithstanding its determination, the court must make findings sufficient to facilitate meaningful appellate review. MCR 3.922(B)(3)(c).

1.Excision

“When some parts of material or information are discoverable and other parts are not discoverable, the party must disclose the discoverable parts and may excise the remainder. The party must inform the other party that nondiscoverable information has been excised and withheld. On motion, the court must conduct a hearing in camera to determine whether the reasons for excision are justifiable. If the court upholds the excision, it must seal and preserve the record of the hearing for review in the event of an appeal.” MCR 3.922(B)(3)(f).

2.Sealing the Record

“The court shall seal and preserve the records for review in the event of an appeal:

(i) by the respondent, on an interlocutory basis or following conviction, if the court determines the records should not be made available to the defense or

(ii) by the prosecution, on an interlocutory basis, if the court determines that the records should be made available to the defense.” MCR 3.922(B)(3)(d).

E.Custody of Records

“Records disclosed under this subrule shall remain in the exclusive custody of counsel for the parties, shall be used only for the limited purpose approved by the court, and shall be subject to such other terms and conditions as the court may provide.” MCR 3.922(B)(3)(e).

F.Sanctions

Failure to comply with MCR 3.922(A)(1), MCR 3.922(A)(2), MCR 3.922(B)(1), or MCR 3.922(B)(4) may result in sanctions keeping with those assessable under MCR 2.313. MCR 3.922(A)(4); MCR 3.922(B)(5).