Youth defendants gain right to limited discovery in reverse-waiver hearings

​By Alexandria Staubach
 
Late last month District 1 of the Court of Appeals released a decision that will change the way district attorneys and those representing youth defendants in reverse-waiver proceedings receive discovery.
 
The court held that “juvenile defendants are entitled to all evidence that the State intends to introduce at a [reverse-waiver] preliminary examination to establish probable cause of the alleged jurisdiction offense” and that “the state is required to produce this evidence at a reasonable time before the preliminary examination.”
 
Moreover, said the court, “additional materials exclusively in the possession of the State may be discoverable provided that the juvenile defendant establishes a particularized need for the materials requested by showing that they are likely to be relevant to negate one element of the alleged jurisdictional offense.”
 
Prior to the opinion, State v. Adams, youth defendants and their representatives had no right to discovery at the reverse-waiver stage of a case.

Geenen

Judge Sara J Geenen wrote for the three-judge panel, joined by Chief Judge M. Joseph Donald and Judge Pedro A. Colón.
 
“Reverse waiver” refers to the court procedure by which an adult court that would otherwise have exclusive jurisdiction over an offense may transfer a case brought against a child 16 years old or younger to juvenile court. Adult criminal courts have exclusive jurisdiction over, among other cases, first-degree intentional homicide, second-degree intentional homicide, and first-degree reckless homicide. This means that cases involving these charges start as adult cases regardless of the defendant’s age.
 
It is a two-step process that begins with a preliminary hearing or examination at which the state must prove it has probable cause to charge the youth defendant of the crime and an adult criminal court must find probable cause to believe that the youth defendant has committed the charged offense.
 
Then, at a reverse-waiver hearing, the youth must prove that transfer to juvenile court will not depreciate the seriousness of the offense, they could not receive adequate treatment in the criminal justice system if convicted as an adult, and retaining jurisdiction in adult court is not necessary to deter the youth or others from committing the charged offense.
 
The juvenile who is the subject of the court of appeals decision, Jayden Adams, 13, was charged with first-degree reckless homicide, giving the adult criminal court exclusive jurisdiction over his case.
 
Historically, juvenile defendants have not been entitled to discovery prior to their preliminary hearings. Adams argued that he had a an “unqualified right to discovery prior to the preliminary examination” because “it is impossible for defendants to know all potential challenges to probable cause without access to discovery,” Geenen wrote.
 
The state argued that no law granted Adams a right to discovery before the preliminary examination.
 
The issue, as identified by the court, was how much latitude a juvenile defendant has to attack the crime charged and what evidence the state may have that is relevant to such an attack. The court, though, hesitated to permit the preliminary hearing to become a “mini trial” should discovery in fact be entitled.
 
Geenen discussed at length a 2010 Supreme Court of Wisconsin decision that found “the place to offer evidence for the purpose of contradicting the offense is the preliminary examination.”
 
Geenen also recognized the Supreme Court’s interpretation of the nature of the reverse-waiver hearing: in contrast to other preliminary hearings where the state must merely prove “some felony” has been committed, in the reverse-waiver case the state must prove probable cause exists for the specific offense charged.
 
According to Geenen, the 2010 Supreme Court case did not identify what, if any, evidence in the state’s possession, should be given to juvenile defendants for them to contradict the offense charged at the preliminary hearing. However, because the state is required to prove the specific offense charged, “the defendant must be given some latitude in attacking the specific offense charged, if a successful attack would alter the crime charged or negate the exclusive original jurisdiction of the criminal court,” Geenen wrote.
 
While the Adams decision gives youth defendants some access to discovery prior to the reverse-waiver process, that evidence is limited to the evidence the prosecutor plans to use and only additional materials for which the youth defendant establishes a particular need.
 
A representative of the State Public Defender’s Office told WJI by email that more could be done by broadening the amount of discoverable evidence. 
 
The ruling “is a step in the right direction, but does not go far enough to ensure fundamental fairness,” SPD Youth Defense Practice Coordinator Eileen Fredericks said. “An obligation to turn over discovery prior to a preliminary hearing for reverse waiver does not prejudice the prosecution,” she said.
 
“Preliminary hearings in these matters have huge implications for a child. In order for the court to make the best decision regarding reverse waiver, a youth defendant should have the opportunity to review and discuss all discovery with their attorney who is obligated to conduct an investigation and highlight mitigating information from that discovery,” Fredericks said.
 
“Allowing the defense to have discovery bolsters due process protections of the youth defendant by ensuring that the judge has complete information regarding the case,” she said.

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