Section 340. Pre-Adjudicatory Discovery and Inspection

A. Informal. Before either party can seek any disclosure or discovery under these rules, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party that the other party has refused to disclose, the demanding party may make an appropriate motion to the court. Such motion shall be made as soon as possible prior to the adjudicatory hearing. In such motion, the party shall state that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this rule shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.

B. Mandatory disclosure by the Commonwealth. In all cases, on request by the juvenile’s attorney or the juvenile, if unrepresented, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the juvenile’s attorney or the juvenile, if unrepresented, all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the juvenile’s attorney or the juvenile, if unrepresented, to inspect and copy or photograph such items.

1) Any evidence favorable to the juvenile that is material either to adjudication or to disposition, and is within the possession or control of the attorney for the Commonwealth;

2) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;

3) the circumstances and results of any identification of the juvenile by voice, photograph, or in-person identification;

4) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the juvenile that are within the possession or control of the attorney for the Commonwealth;

5) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and

6) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.

C. Discretionary. Upon motion of the attorney for the Commonwealth, the juvenile’s attorney, or the juvenile, if unrepresented, for pre-adjudicatory discovery, the court may order, subject to the juvenile’s right against self-incrimination, any discovery upon a showing that the evidence is material to the preparation of the case and that the request is reasonable.

D. Continuing Duty to Disclose. If, prior to or during the adjudicatory hearing, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party promptly shall notify the opposing party or the court of the additional evidence, material, or witness.

E. Remedy. 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 discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the juvenile, or it may enter such other order as it deems just under the circumstances.

F. Protective 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 of any party, the court may permit the showing to be made, in whole or in part, in the form of a written statement to be inspected by the court. If the court enters an order granting relief, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.

G. Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney for the Commonwealth or the juvenile’s attorney, or members of their legal staffs.

Comment

The purpose of paragraph (A) is to encourage an informal discovery process. Only when the informal process fails and there is a general dispute as to discovery, should a motion to compel discovery be made. Motions may be oral or written, see Rule 344.

For provisions under paragraph (B)(2), see Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001).

Rule 800 suspends § 5720 of the Wiretapping and Electronic Surveillance Control Act, 18 P. S. § 5720 as being inconsistent with this Rule only insofar as the section may delay disclosure to the juvenile seeking discovery under paragraph (B)(6).

Under paragraph (C), the following are examples of evidence that may be material to the preparation of the case: 1) the names and contact information of eyewitnesses; 2) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses; 3) all written and recorded statements, and substantially verbatim oral statements, made by the juvenile, and by conspirators or accomplices, whether such individuals have been charged or not; and 4) any other evidence specifically identified, provided the requesting party can additionally establish that its disclosure would be in the interests of justice, including any information concerning any person involved in the case who has received either valuable consideration, or an oral or written promise or contract for valuable consideration, for information concerning the case, or for the production of any work describing the case, or for the right to depict the character of the person in connection with his or her involvement in the case.

Any evidence or material requested cannot interfere with the juvenile’s right against self-incrimination.

Under paragraph (C), the court has discretion, upon motion, to order an expert who is expected to testify at the adjudicatory hearing to prepare a report. However, these provisions are not intended to require a prepared report in every case. The court should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.

Whenever the rule makes reference to the term ‘‘identification,’’ or ‘‘in-person identification,’’ it is understood that such terms are intended to refer to all forms of identifying a juvenile by means of the juvenile’s person being in some way exhibited to a witness for the purpose of an identification: e.g., a line-up, stand-up, show-up, one-on-one confrontation, one-way mirror, etc. The purpose of this provision is to make possible the assertion of a rational basis for a claim of improper identification based upon Stovall v. Denno, 388 U. S. 293 (1967) and United States v. Wade, 388 U. S. 218 (1967).

This rule is not intended to affect the admissibility of evidence that is discoverable under this rule or evidence that is the fruits of discovery, nor the standing of the juvenile to seek suppression of such evidence.

It is intended that the remedies provided in paragraph (E) apply equally to the Commonwealth and the juvenile, as the interests of justice require.

The provision for a protective order, paragraph (F), does not confer upon the Commonwealth any right of appeal not presently afforded by law.

It should also be noted that as to material which is discretionary with the court, or which is not enumerated in the rule, if such information contains exculpatory evidence as would come under the Brady rule, it is to be disclosed. Nothing in this rule is intended to limit in any way disclosure of evidence constitutionally required to be disclosed.

In addition to information requested under this rule, an attorney has the right to inspect all court records and files, including juvenile probation files. See Rules 160 and 161.

Official Note

Rule 340 adopted April 1, 2005, effective October 1, 2005. Amended May 21, 2012, effective August 1, 2012.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 340 published with the Court’s Order at 35 Pa.B. 2214 (April 16, 2005).

Final Report explaining the amendments to Rule 340 published with the Court’s Order at 42 Pa.B. 3203 (June 9, 2012).

The provisions of this Rule 340 amended May 21, 2012, effective August 1, 2012, 42 Pa.B. 3203. Immediately preceding text appears at serial pages (310596) to (310599).