SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey in the Interest of N.H. (A-4-15) (076316)
Argued April 11, 2016 -- Decided August 10, 2016
RABNER, C.J., writing for a unanimous Court.
The issue in this appeal is whether a juvenile is entitled to full discovery when the State seeks to waive
jurisdiction and transfer a case from juvenile to adult court.
This case arises out of a fistfight among high school students outside of a school on June 10, 2014. What
began as a fight between two students, C.W. and D.W., ended in the death of one of them. N.H., who was seventeen
years old at the time, attended the fight to support his friend, D.W. N.H. allegedly grabbed a handgun from another
individual and shot C.W. four times, including once in the back of the head. A video captured parts of the incident,
and several witnesses made statements to the police that implicated N.H. N.H. also spoke to the police and said that
he had shot only at the ground.
On June 11, 2014, N.H. was charged with acts of delinquency which, if committed by an adult, would
constitute murder, unlawful possession of a weapon, and possession of a firearm for an unlawful purpose. On June
20, 2014, the State filed a motion to transfer jurisdiction from the Family Part to adult criminal court and submitted
a statement of reasons in support of its waiver application. On July 11, 2014, the State provided the following
discovery to counsel for N.H.: an incident report dated June 10, 2014; a DVD of N.H.’s recorded statement; DVDs
of recorded statements by D.W. and another juvenile present at the fight; a detective’s “continuation report” dated
June 11, 2014; video surveillance footage from the high school where the fight took place; an autopsy report; and
N.H.’s birth certificate. On August 8, 2014, the State disclosed additional items it intended to use at the waiver
hearing: DVDs of two recorded statements by A.H., another witness to the event. The State also represented that it
did not possess any exculpatory evidence.
At oral argument before this Court, the State explained that it has not disclosed certain other items in its
possession which it does not intend to rely on at the waiver hearing. Those materials include additional witness
statements, other police reports, and other videos of the event taken from different angles.
N.H. moved for full discovery before the waiver hearing, and the trial court granted the request. The court
analogized the filing of a juvenile complaint to the filing of a criminal indictment, which would trigger full
discovery under Rule 3:13-3(b). The trial court stayed its order pending the outcome of the State’s motion for leave
to appeal.
The Appellate Division granted the motion and affirmed the trial court’s order. 441 N.J. Super. 347 (App.
Div. 2015). The panel observed that neither the New Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, nor
the court rules “explicitly address[] discovery in juvenile cases.” Id. at 349. The panel thus looked to the rules that
govern adult criminal proceedings for guidance. The panel confirmed that, because of “the critical and significant
consequences” that “flow from the [juvenile] complaint alone,” juveniles have the “right to full discovery . . . upon
the filing of the juvenile complaint.” Id. at 351-52.
The Supreme Court granted the State’s motions for leave to appeal and for a stay. 223 N.J. 160 (2015).
HELD: The State is required to disclose all discovery in its possession when it seeks to waive jurisdiction and
transfer a case from juvenile to adult court.
1. The Juvenile Code allows prosecutors to seek to proceed in adult court against juveniles who have committed
certain serious offenses. At the time the State moved for waiver in this case, N.J.S.A. 2A:4A-26 governed juvenile
waiver hearings. That statute has since been repealed and replaced by N.J.S.A. 2A:4A-26.1. There are no material
differences between the relevant parts of the newly enacted and prior statutes. As a seventeen-year-old charged with
very serious acts, N.H. is covered under both versions of the law. The new waiver law codifies the factors that
prosecutors must consider and requires them to submit a written statement of reasons that is reviewed for abuse of
discretion. The statement of reasons should apply the factors to the individual juvenile and not simply mirror the
statutory language in a cursory fashion. At the waiver hearing, the court must “review whether the State
considered” all eleven factors set forth in the statute, N.J.S.A. 2A:4A-26.1(b), and determine whether “the
prosecutor abused his discretion in considering [those] factors in deciding whether to seek a waiver,” N.J.S.A.
2A:4A-26.1(c)(3). The court may deny a waiver motion “if it is clearly convinced that the prosecutor abused his
discretion.” N.J.S.A. 2A:4A-26.1(c)(3). (pp. 7-13)
2. The waiver of a juvenile to adult court “is the single most serious act that the juvenile court can perform.” See
State v. R.G.D., 108 N.J. 1, 4-5 (1987) (quoting P. Hahn, The Juvenile Offender and the Law 180 (3d ed. 1984)).
Once waiver occurs, the child loses the protections and opportunities for rehabilitation which the Family Part
affords. Ibid. The child also faces the real possibility of a stiffer adult sentence. Id. at 11-12. Because waiver of
jurisdiction is a “critically important action” that determines “vitally important statutory rights of the juvenile,” due
process requires that juveniles receive a hearing, effective assistance of counsel who have access to relevant
information, and a statement of reasons for the court’s decision. Kent v. United States, 383 U.S. 541, 557 (1966).
Because of the “heightened importance” of juvenile waiver hearings, juveniles are afforded greater rights than those
of adults at comparable probable cause hearings. (pp. 13-14)
3. Neither the Juvenile Code nor the Court Rules discuss discovery in juvenile cases. Courts have looked to the
rules that govern adult criminal proceedings (Part III of the Court Rules) for guidance when, as here, the Family Part
rules are silent. Three decades ago, this Court took note of the State’s custom to “open its file” in juvenile cases and
provide discovery to juveniles even though no court rule addressed the topic. See State in Interest of K.A.W., 104
N.J. 112, 121 (1986). The filing of a juvenile complaint in the Family Part triggers the State’s discovery obligation.
If there is no waiver motion and a delinquency matter remains in the Family Part, the juvenile is entitled to full
discovery prior to a hearing on the merits. If there is a waiver motion, the State should disclose all discovery in its
possession soon after it seeks waiver to adult court. Also, the State is required to turn over materials within its
“possession, custody or control” prior to the hearing. See R. 3:13-3(b)(1)(C), (E), (G), (H); see also State in Interest
of A.B., 219 N.J. 542, 556 (2014). Other relevant items that later come into the State’s possession will be disclosed
as part of the State’s continuing discovery obligation. See R. 3:13-3(f). Full discovery will foster a fair hearing, but
it is not meant to turn a waiver hearing into a full-blown trial, and should not do so. (pp. 14-20)
4. The State may apply for a protective order to redact, delay, or withhold the disclosure of materials that would
expose witnesses and others to harm, hinder or jeopardize ongoing investigations or prosecutions, undermine the
secrecy of informants and confidential information which the law recognizes, or compromise some other legitimate
interest. See R. 3:13-3(a)(1), (e)(1). (p. 19)
5. The statutes and Court Rules do not expressly address discovery in juvenile cases. To clarify this area of law, the
Family Practice and Criminal Practice Committees are being asked to develop a proposed rule to regulate timely
discovery in juvenile proceedings, consistent with the relevant statutes and this decision. (p. 20)
The judgment of the Appellate Division is AFFIRMED. The State is required to provide N.H. full
discovery of relevant materials in its possession before his waiver hearing.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON and
JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-4 September Term 2015
076316
STATE OF NEW JERSEY
IN THE INTEREST OF N.H.,
A Juvenile.
Argued April 11, 2016 – Decided August 10, 2016
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 441
N.J. Super. 347 (App. Div. 2015).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant State of New Jersey
(Carolyn A. Murray, Acting Essex County
Prosecutor, attorney).
Matthew Astore, Assistant Deputy Public
Defender, argued the cause for respondent
N.H. (Joseph E. Krakora, Public Defender,
attorney).
Laura A. Cohen argued the cause for amici
curiae American Civil Liberties Union of New
Jersey Foundation, Advocates for Children of
New Jersey, Campaign for Youth Justice,
National Juvenile Defender Center, New
Jersey Institute for Social Justice,
Northeast Juvenile Defender Center and
Rutgers Law School Children’s Justice Clinic
(Rutgers Criminal and Youth Justice Clinic
and Rutgers Constitutional Litigation
Clinic, attorneys; Ms. Cohen, Ronald K.
Chen, Alexander R. Shalom, and Rebecca J.
Livengood, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
1
Thirty years ago, this Court took note of the State’s
custom to “open its file” in juvenile cases and provide
discovery to juveniles even though no court rule addressed the
topic. See State in Interest of K.A.W., 104 N.J. 112, 121
(1986). In this case, the State seeks to proceed against a
juvenile as an adult but has provided only partial discovery of
the materials in its possession before the waiver hearing. We
therefore face a legal question of first impression: whether a
juvenile is entitled to full discovery when the State seeks to
waive jurisdiction and transfer a case from juvenile to adult
court.
On a number of prior occasions, we have recognized how
important waiver hearings are. They mark a critical stage in
juvenile proceedings and have significant, long-lasting
consequences.
At the hearing, the trial court must not only find probable
cause that the juvenile committed an act covered by the waiver
statute; it must also be satisfied that the prosecutor did not
abuse his discretion when considering a series of statutory
factors to decide whether to seek a waiver. N.J.S.A. 2A:4A-
26.1(c)(2)–(3). Full discovery at this critical stage would
enable the juvenile and counsel to prepare for all facets of the
hearing.
2
We rely on our supervisory authority under the State
Constitution to require the State to disclose all discovery in
its possession before the waiver hearing. When necessary, the
State may apply for a protective order to delay disclosure. We
therefore affirm the judgment of the Appellate Division, which
upheld the trial court’s order granting complete discovery.
I.
The prosecutor’s statement of reasons in support of waiver
sets forth the relevant background facts. This case arises out
of a fistfight among high school students outside of a school on
June 10, 2014. What began as a fight between two students, C.W.
and D.W., ended in the death of one of them.
N.H., who was seventeen years old at the time, attended the
fight to support his friend, D.W. N.H. allegedly grabbed a
handgun from another individual and shot C.W. four times,
including once in the back of the head. A video captured parts
of the incident, and several witnesses made statements to the
police that implicated N.H. N.H. also spoke to the police and
said that he had shot only at the ground.
On June 11, 2014, N.H. was charged with acts of delinquency
which, if committed by an adult, would constitute murder,
N.J.S.A. 2C:11-3(a), unlawful possession of a weapon, N.J.S.A.
2C:39-5(b), and possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a). The following week, on June 20, 2014, the
3
State filed a motion to transfer jurisdiction from the Family
Part to adult criminal court. The State submitted a statement
of reasons in support of its waiver application.
The State provided the following discovery to counsel for
N.H. on July 11, 2014: an incident report dated June 10, 2014;
a DVD of N.H.’s recorded statement; DVDs of recorded statements
by D.W. and another juvenile present at the fight; a detective’s
“continuation report” dated June 11, 2014; video surveillance
footage from the high school where the fight took place; an
autopsy report; and N.H.’s birth certificate. On August 8,
2014, the State disclosed additional items it intended to use at
the waiver hearing: DVDs of two recorded statements by A.H.,
another witness to the event. The State also represented that
it did not possess any exculpatory evidence.
At oral argument before this Court, the State explained
that it has not disclosed certain other items in its possession
which it does not intend to rely on at the waiver hearing.
Those materials include additional witness statements, other
police reports, and other videos of the event taken from
different angles.
N.H. moved for full discovery before the waiver hearing,
and the trial court granted the request. The court analogized
the filing of a juvenile complaint to the filing of a criminal
indictment, which would trigger full discovery under Rule 3:13-
4
3(b). The trial court stayed its order pending the outcome of
the State’s motion for leave to appeal.
The Appellate Division granted the motion and affirmed the
trial court’s order. State in Interest of N.H., 441 N.J. Super.
347 (App. Div. 2015). The panel observed that neither the New
Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, nor
the court rules “explicitly address[] discovery in juvenile
cases.” Id. at 349. The panel thus looked to the rules that
govern adult criminal proceedings for guidance. Id. at 350.
The panel confirmed that, because of “the critical and
significant consequences” that “flow from the [juvenile]
complaint alone,” juveniles have the “right to full discovery .
. . upon the filing of the juvenile complaint.” Id. at 351-52.
We granted the State’s motions for leave to appeal and for
a stay. 223 N.J. 160 (2015).
II.
The State argues that a juvenile’s rights are protected at
a waiver hearing when the State discloses “everything it will
introduce to establish probable cause, as well as any
exculpatory evidence in its possession.” To require full
discovery “so early in the case,” the State maintains, “will
cause substantial delay in holding waiver hearings and risk
jeopardizing the State’s ongoing investigation, while at the
same time, provide the juvenile with no tangible benefits.”
5
According to the State, full discovery is called for only after
a Family Part judge decides whether to waive a case to adult
court. The State also notes that recent changes to the juvenile
waiver statute do not expand the scope of the waiver hearing or
alter the State’s position.
N.H. counters that, because the filing of a juvenile
complaint is the equivalent of an indictment, the right to full
discovery “certainly” begins “before the waiver hearing.” He
contends that, just as adults are entitled to complete discovery
seven days after indictment under Rule 3:13-3(b)(1), juveniles
should receive full discovery seven days after the filing of a
juvenile complaint. To hold otherwise, N.H. claims, would
undervalue the critical importance of the waiver hearing and
allow the State to decide unilaterally what evidence a juvenile
will receive before the hearing.
We granted leave to appear as amicus curiae to the
following groups, which submitted a joint brief: the American
Civil Liberties Union of New Jersey, Advocates for Children of
New Jersey, the Campaign for Youth Justice, the National
Juvenile Defender Center, the New Jersey Institute for Social
Justice, the Northeast Juvenile Defender Center, and the Rutgers
Law School Children’s Justice Clinic.
Amici argue that waiver is a critical stage and that “an
adverse determination results in heightened and profound harms.”
6
They stress, among other things, the “serious direct and
collateral consequences for youth” that adult convictions carry.
Amici contend that waiver proceedings demand robust due process
protections, and that full discovery is necessary to ensure
effective assistance of counsel. In addition, amici request
that the Court exercise its rule-making authority and promulgate
a pre-trial discovery rule specific to juvenile delinquency
matters.
III.
A.
The Juvenile Code allows prosecutors to seek to proceed in
adult court against juveniles who have committed certain serious
offenses. In this case, the State moved to waive jurisdiction
by the Family Part in June 2014. At the time, N.J.S.A. 2A:4A-26
governed juvenile waiver hearings. That statute has since been
repealed and replaced by N.J.S.A. 2A:4A-26.1, which went into
effect on March 1, 2016. L. 2015, c. 89, § 1.
As discussed below, there are no material differences
between the parts of the newly enacted and prior statutes which
are relevant to this appeal. As a seventeen-year-old charged
with very serious acts, N.H. is covered under both versions of
the law. Compare N.J.S.A. 2A:4A-26(a)(1), (a)(2)(a), (e)
(repealed), with N.J.S.A. 2A:4A-26.1(c)(1), (c)(2)(a).
Statutory revisions about the process for the waiver decision do
7
not alter existing law in a material way either. They are
largely procedural in nature and encompass prior practice. As a
result, a hearing in this case, after this appeal, would be
controlled by the revised waiver statute. See N.J.S.A. 1:1-15.
To be clear, because of the similarity of the parts of the
statutes relevant to this appeal, we need not conduct a full-
blown retroactivity analysis in this case. See State in the
Interest of J.F., ___ N.J. Super. ___ (App. Div. 2016) (slip op.
at 20-31) (conducting retroactivity analysis and focusing, in
particular, on statute’s change in minimum age for juvenile
waiver from fourteen to fifteen).
Over the years, the Legislature has revised the waiver
statute on a number of occasions. See L. 1982, c. 77, § 7; L.
1987, c. 106, § 23; L. 1991, c. 30, § 1; L. 1991, c. 83, § 3; L.
1991, c. 91, § 6; L. 1999, c. 373, § 1; L. 2003, c. 39, § 8; L.
2007, c. 341, § 3; L. 2015, c. 89, § 1. Under the current and
prior versions of the law, the prosecutor has discretion to
decide whether to seek waiver. See N.J.S.A. 2A:4A-26.1(c)(3);
State in the Interest of V.A., 212 N.J. 1, 8 (2012)
(interpreting N.J.S.A. 2A:4A-26)).
Recent iterations of the law, as well as the current
statute, focus on the prosecutor’s exercise of discretion. In
1999, the Legislature called upon the Attorney General to
develop guidelines for county prosecutors “to ensure the uniform
8
application” of waiver decisions. L. 1999, c. 373, § 1
(codified as N.J.S.A. 2A:4A-26(f)), repealed by L. 2015, c. 89,
§ 6, eff. Mar. 1, 2016. The Legislature acted “to eliminate
arbitrariness or abuse of discretionary power.” State v. J.M.,
182 N.J. 402, 419 (2005) (citation omitted). In response, the
Attorney General published guidelines that instructed
prosecutors to consider the following factors in deciding
whether to seek waiver: (1) the nature of the offense; (2) the
need for deterrence; (3) the effect of waiver on the prosecution
of any co-defendants; (4) the maximum sentence and length of
time served; (5) the juvenile’s prior record; (6) the likelihood
of conviction and the potential need for a grand jury
investigation; and (7) the victim’s input. Attorney General’s
Juvenile Waiver Guidelines 5-6 (Mar. 14, 2000) (Guidelines).
The Guidelines also directed assistant prosecutors who made
initial waiver decisions to “prepare a written statement of
reasons for waiver” that accounted for the above factors. Id.
at 7. In J.M., supra, the Court required prosecutors to include
the statement of reasons as part of the waiver motion so that
judges could review the State’s reasons and “determine that the
reasons for seeking waiver [were] not arbitrary.” 182 N.J. at
419. Courts reviewed the prosecutor’s decision for abuse of
discretion. V.A., supra, 212 N.J. at 8.
9
The new waiver law appears to have adopted parts of the
Guidelines and case law. The statute codifies the factors that
prosecutors must consider and requires them to submit a written
statement of reasons that is reviewed for abuse of discretion.
See N.J.S.A. 2A:4A-26.1(a), (b), (c)(3).
Under the current law, the prosecutor has sixty days after
receipt of a juvenile complaint to file a motion for waiver of
jurisdiction by the “Family Part to an appropriate court.”
N.J.S.A. 2A:4A-26.1(a). (The prior law allotted thirty days.
N.J.S.A. 2A:4A-26(d).) That period of time can be extended for
good cause. N.J.S.A. 2A:4A-26.1(a). The motion must include a
statement of reasons that sets forth the facts used to assess
certain factors listed in the statute, together with an
explanation about how those facts support waiver. Ibid. The
statement of reasons should apply the factors to the individual
juvenile and not simply mirror the statutory language in a
cursory fashion. See V.A., supra, 212 N.J. at 26-27 (discussing
Attorney General guidelines).
The current law also outlines different facets of the
waiver hearing. To begin with, the prosecution must offer proof
of two things: (1) that the juvenile was fifteen years or older
at the time of the alleged delinquent act, N.J.S.A. 2A:4A-
26.1(c)(1), (as compared to fourteen years or older under the
prior law, N.J.S.A. 2A:4A-26(a)(1)); and (2) that there is
10
probable cause to believe that the act, if committed by an
adult, would constitute one of a number of listed offenses,
N.J.S.A. 2A:4A-26.1(c)(2); see also State in the Interest of
A.D., 212 N.J. 200, 204 (2012) (discussing probable cause
standard under N.J.S.A. 2A:4A-26(a)(2)). The list includes
criminal homicide, first-degree robbery, carjacking, sexual
assault, kidnapping, aggravated arson, and certain firearms
violations, among other offenses. N.J.S.A. 2A:4A-26.1(c)(2).
The prior statute contains a similar list. N.J.S.A. 2A:4A-
26(a)(2). As is evident from both lists, waiver hearings
typically involve the most serious offenses.
The waiver hearing also has another component. The court
must “review whether the State considered” eleven factors set
forth in the statute, N.J.S.A. 2A:4A-26.1(b), and determine
whether “the prosecutor abused his discretion in considering
[those] factors in deciding whether to seek a waiver,” N.J.S.A.
2A:4A-26.1(c)(3).1 Those requirements are consistent with J.M.,
supra, 182 N.J. at 419. The court may deny a waiver motion “if
it is clearly convinced that the prosecutor abused his
discretion.” N.J.S.A. 2A:4A-26.1(c)(3).
1 Based on the language of the statute, it appears that the
State has an affirmative obligation to show that it assessed all
the factors, N.J.S.A. 2A:4A-26.1(a), which the court “shall
review,” N.J.S.A. 2A:4A-26.1(b). If the defense then challenges
the prosecutor’s exercise of discretion under section (c)(3),
the court must resolve that issue as well.
11
The eleven factors prosecutors must consider under the
statute are as follows:
(a) The nature and circumstances of the
offense charged;
(b) Whether the offense was against a person
or property, allocating more weight for crimes
against the person;
(c) Degree of the juvenile’s culpability;
(d) Age and maturity of the juvenile;
(e) Any classification that the juvenile is
eligible for special education to the extent
this information is provided to the
prosecution by the juvenile or by the court;
(f) Degree of criminal sophistication
exhibited by the juvenile;
(g) Nature and extent of any prior history of
delinquency of the juvenile and dispositions
imposed for those adjudications;
(h) If the juvenile previously served a
custodial disposition in a State juvenile
facility operated by the Juvenile Justice
Commission, and the response of the juvenile
to the programs provided at the facility to
the extent this information is provided to the
prosecution by the Juvenile Justice
Commission;
(i) Current or prior involvement of the
juvenile with child welfare agencies;
(j) Evidence of mental health concerns,
substance abuse, or emotional instability of
the juvenile to the extent this information is
provided to the prosecution by the juvenile or
by the court; and
(k) If there is an identifiable victim, the
input of the victim or victim’s family.
12
[N.J.S.A. 2A:4A-26.1(c)(3).]
Those factors encompass and expand upon the factors listed in
the Guidelines.2
B.
Existing case law highlights how important the juvenile
waiver decision is. As this Court observed decades ago, the
waiver of a juvenile to adult court “is the single most serious
act that the juvenile court can perform.” See State v. R.G.D.,
108 N.J. 1, 4-5 (1987) (quoting P. Hahn, The Juvenile Offender
and the Law 180 (3d ed. 1984)). The Court explained that, once
waiver occurs, the child loses the protections and opportunities
for rehabilitation which the Family Part affords. Ibid. The
child also faces the real possibility of a stiffer adult
sentence. Id. at 11-12.
Because waiver of jurisdiction is a “critically important
action” that determines “vitally important statutory rights of
the juvenile,” due process requires that juveniles receive a
hearing, effective assistance of counsel who have access to
relevant information, and a statement of reasons for the court’s
decision. Kent v. United States, 383 U.S. 541, 557, 86 S. Ct.
2 Rule 5:22-2 also addresses waiver hearings and is in the
process of being updated to reflect the new statute. See
Supreme Court Family Practice Committee Juvenile Waiver Report
(May 26, 2016) (proposing rule amendments).
13
1045, 1055, 16 L. Ed. 2d 84, 95 (1966). We have also noted the
critical nature of waiver hearings and underscored the need for
“appropriate notice and a meaningful opportunity to be heard.”
J.M., supra, 182 N.J. at 411 (citations omitted). In fact,
because of the “heightened importance” of juvenile waiver
hearings, we modified our rules to afford juveniles greater
rights than adults have at comparable probable cause hearings.
Id. at 415-16. Based on “considerations of fairness,” and
“[g]iven our conclusion that the probable cause portion of the
waiver hearing . . . is such a meaningful and critical stage of
the proceedings,” we required that juveniles be allowed to
present evidence and testify at waiver hearings. Id. at 416.
More recently, we noted that when a prosecutor files a
juvenile complaint and gets an arrest warrant, “a critical stage
in the proceeding has been reached.” State ex rel. P.M.P., 200
N.J. 166, 178 (2009). That, in turn, implicates the right to
counsel under the Juvenile Code and means that juveniles cannot
be asked to waive the right at that stage without an attorney
present. Ibid. (interpreting N.J.S.A. 2A:4A-39).
C.
Neither the Juvenile Code nor the Court Rules discuss
discovery in juvenile cases. Part V of the Court Rules applies
to actions in the Family Part but does not expressly address
discovery in juvenile cases. In the absence of a relevant rule
14
in Part V, “[j]uvenile delinquency actions shall be governed by
the rules in Part III.” R. 5:1-1. Accordingly, courts have
looked to Part III of the Court Rules for guidance when, as
here, the Family Part rules are silent. N.H., supra, 441 N.J.
Super. at 351 (citing State in Interest of J.R., 244 N.J. Super.
630, 637-39 (App. Div. 1990)).
Three decades ago, this Court took note of the prevailing
discovery practice in juvenile cases:
Even though the Juvenile Code contains no
provision for discovery, the custom -- almost
invariable in matters such as this -- is for
the State to open its file to the juvenile,
and hence at no time has there been a
recommendation from the appropriate Supreme
Court committee for us to amend our Rules to
structure discovery procedures in juvenile
delinquency actions similar to those embodied
in our Rules governing criminal practice,
Rules 3:13-1 to -4, nor does it appear that
any question has ever arisen in that regard.
The process has become, commendably, self-
regulating. We see no need to intrude at this
juncture.
[K.A.W., supra, 104 N.J. at 121.]
K.A.W. did not focus specifically on juvenile waiver hearings,
and the State could not confirm at oral argument in this case
whether a uniform practice in that area exists today. We
therefore consider what discovery is required in connection with
waiver hearings.
Whatever decision the prosecutor reaches about waiver, the
filing of a juvenile complaint in the Family Part triggers the
15
State’s discovery obligation. The State is obliged to make full
discovery available to a juvenile before a hearing is held to
adjudicate the complaint. In other words, if there is no waiver
motion and a delinquency matter remains in the Family Part, the
juvenile is entitled to full discovery prior to a hearing on the
merits.
In criminal proceedings for adults, Rule 3:13-3 governs
discovery practices. The rule requires the State to provide
full discovery when the State makes a pre-indictment plea offer,
R. 3:13-3(a), or within seven days of the return of an
indictment, R. 3:13-3(b)(1). The State acknowledges that it
also has an ongoing obligation to disclose exculpatory evidence.
In some cases, a waiver hearing might be held relatively
early in the proceedings –- earlier than an indictment would be
returned in the case of an adult. Under the new statute, the
State has sixty days after the juvenile’s receipt of a complaint
to move to waive jurisdiction, N.J.S.A. 2A:4A-26.1(a), and a
hearing follows at a later time. Here, the State moved for
waiver of jurisdiction just ten days after it filed a complaint.
Regardless, it is difficult to justify disclosure of less than
full discovery in the State’s possession when juvenile
proceedings turn more serious.
As noted above, the waiver hearing is a critically
important event with serious, lasting consequences for a
16
juvenile. The hearing determines whether a matter will be moved
from the Family Part, with its emphasis on rehabilitation, see
R.G.D., supra, 108 N.J. at 5, to adult criminal court. As a
juvenile with no prior record, N.H. faces up to twenty years’
incarceration if he is adjudicated delinquent on the charge that
constitutes murder. N.J.S.A. 2A:4A-44(d)(1)(a). If convicted
as an adult, N.H. will be sentenced to a minimum term of thirty
years’ imprisonment without being eligible for parole. N.J.S.A.
2C:11-3(b)(1). In addition, upon release after an adult
conviction, N.H. will have an adult record and will have a more
difficult time reintegrating into society. Amici also argue
that N.H. would face “substantial physical, emotional, and
developmental harms” from incarceration in an adult prison. To
be sure, the decision to waive jurisdiction is significant.
In addition, the hearing involves more than just a
determination of probable cause. As a first step, the court
must be satisfied that there is probable cause to believe that
the juvenile committed one of the delinquent acts listed in the
statute. N.J.S.A. 2A:4A-26.1(c)(2). Beyond that, under the new
law as well as the old, the prosecutor’s decision to seek waiver
is subject to review -- at the hearing -- for abuse of
discretion. See N.J.S.A. 2A:4A-26.1(c)(3); V.A., supra, 212
N.J. at 8; J.M., supra, 182 N.J. at 419. And certain factors
that the prosecutor must consider extend beyond the question of
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probable cause. See, e.g., N.J.S.A. 2A:4A-26.1(c)(3)(h)
(juvenile’s response to Juvenile Justice Commission programs
provided during prior sentence); N.J.S.A. 2A:4A-26.1(c)(3)(i)
(current or prior involvement with child welfare agencies).
Full discovery facilitates the court’s review of all the
issues to be addressed at the hearing. Full discovery also
enables the juvenile and counsel to prepare for all facets of
the hearing and decide how best to cross-examine the State’s
witnesses, whether the juvenile or others should testify, and
how to assess and challenge the prosecutor’s exercise of
discretion.3
We note, as well, that the State has not presented
persuasive reasons, in general, why it should not disclose
relevant materials in its possession before a waiver hearing.
The State concedes that full disclosure in this case would not
raise any concerns.
Because of the critical nature of juvenile waiver
proceedings, and to ensure fairness at this essential stage, we
conclude that the State should disclose all discovery in its
3 See Kent, supra, 383 U.S. at 557, 86 S. Ct. at 1055, 16 L. Ed.
2d at 95 (finding that counsel for juvenile is entitled to
access “to the social records and probation or similar reports
which presumably are considered by the court” in its decision on
waiver, based on “statute read in the context of constitutional
principles relating to due process and the assistance of
counsel”).
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possession soon after it seeks to waive jurisdiction in a
juvenile matter and proceed in adult court. We rely on the
Court’s supervisory authority under Article VI, Section 2,
Paragraph 3 of the State Constitution to regulate the discovery
practice in juvenile proceedings. See N.J. Const. art. VI, § 2,
¶ 3 (providing Supreme Court authority to “make rules governing
the administration of all courts in the State and, subject to
the law, the practice and procedure in all such courts”); J.M.,
supra, 182 N.J. at 415-16.
The State may apply for a protective order to redact,
delay, or withhold the disclosure of materials that would expose
witnesses and others to harm, hinder or jeopardize ongoing
investigations or prosecutions, undermine the secrecy of
informants and confidential information which the law
recognizes, or compromise some other legitimate interest. See
R. 3:13-3(a)(1), (e)(1).
We also note that the State is required to turn over
materials within its “possession, custody or control” prior to
the hearing. See R. 3:13-3(b)(1)(C), (E), (G), (H); see also
State in Interest of A.B., 219 N.J. 542, 556 (2014) (noting
request to inspect victim’s home fell outside scope of automatic
discovery in Rule 3:13-3(b) because home was not within
“possession, custody or control” of prosecutor). As a result,
if, for example, the State decides to seek a waiver hearing
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before lab tests are completed, the results, as well as other
relevant items that later come into the State’s possession, will
be disclosed as part of the State’s continuing discovery
obligation. R. 3:13-3(f). That approach would not cause the
State to delay the filing of a waiver motion.
Finally, we emphasize that, by ordering full discovery
prior to the waiver hearing, we do not change the parameters of
the hearing. The State must offer proof of a juvenile’s age and
demonstrate probable cause that the juvenile committed an act
listed in the statute. N.J.S.A. 2A:4A-26.1(c)(1)-(2). The
State must also present evidence that it considered the relevant
statutory factors, and its decision is reviewed for abuse of
discretion. N.J.S.A. 2A:4A-26.1(b), (c)(3). Full discovery
will foster a fair hearing directed toward those important
questions; it is not meant to turn a waiver hearing into a full-
blown trial, and should not do so.
D.
As noted, the statutes and Court Rules do not expressly
address discovery in juvenile cases. To clarify this area of
law, we ask the Family Practice and Criminal Practice Committees
to develop a proposed rule to regulate timely discovery in
juvenile proceedings, consistent with the relevant statutes and
this decision.
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IV.
For the reasons stated above, we affirm the judgment of the
Appellate Division and require the State to provide N.H. full
discovery of relevant materials in its possession before his
waiver hearing.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON and JUDGE CUFF (temporarily assigned) join in CHIEF
JUSTICE RABNER’s opinion.
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