1. We do file a motion - but it has always been my position that since the wording in 54.02(d) REQUIRES the court to order and obtain the report - then it is THE COURT'S report. ("the court SHALL order and obtain...). Since the court is required to do it - a motion is probably not really necessary.
2. We don't have a hearing. Since the court MUST do it - there could only be one outcome, although the juvenile is allowed under the law, to decline to participate in the various interviews necessary to prepare the diagnostic.
3. The defense should be put on notice by the statute. What we do here in Houston is have a setting date (that satisfies the statutory requirement that these come up on the docket within 10 days if the juvenile is in detention (see FC 53.05)) and at that first setting date the judge tells the child and the attorney that he is ordering the study as required by statute and that the child has a right not to participate in the testing. The attorney is also offered the opportunity to let them know if he/she wants to be present for the testing/interviews. At that same setting the judge goes over what the child is charged with and explains the proceedings and answers questions from the child and parents.
4. The judge. It's his report.
5. The person appointed by the judge. Here, it is a juvenile probation officer who works for the court.
6.Here, the prosecutor gets the report at the same time as defense attorney. Usually that is when the report is filed with the court - and ususally that is "one day prior" to the hearing date in order to comply with the statute - 54.02(e) requires the attorney for the child to have access to all written matter to be considered by the court at least one day prior to the hearing.
The prosecutor offers the report at the beginning of the hearing - but again - my position on that is that it is the court's report and we are merely showing that the statute was complied with - the defense can object - but it's not the "state's" report. It can be just as likely that the report contains information that the state doesn't like.
7. Since they have the right not to participate in the report, and have been so advised by the judge, my argument would be that they waive their confidentiality rights by their participation. I can't recall that anyone has invoked HIPPA, but there were cases where the defense invoked the confidentiality of the mental health information and kept it out, then cited as a point of appeal that the court failed to order and obtain it! I remember in that case when he granted the motion to keep it out - the judge said, in effect, I will keep it out, but I will also presume that your client is perfectly fine and normal. The appeallate court upheld the certification.
[This message was edited by Kris Moore on 10-10-07 at .]
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