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JUVENILE LAW REPRESENTING THE CHILD IN A DELINQUENCY CASE.

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Presentation on theme: "JUVENILE LAW REPRESENTING THE CHILD IN A DELINQUENCY CASE."— Presentation transcript:

1 JUVENILE LAW REPRESENTING THE CHILD IN A DELINQUENCY CASE

2 LINGO (see also Rule definition section) DJO: –Deputy Juvenile Officer LEGAL OFFICER –prosecutor DETENTION –Detained, not arrested DELINQUENT –crime VOC (violation of court order) –Probation violation ADJUDICATION –Trial-found guilty or not guilty DISPOSITION –sentencing ADMISSION/DENIAL –Plead guilty or not guilty OCS or J&S –Probation INTENSIVE SUPERVISION –More intense probation –Gun Court RESIDENTIAL TREATMENT NIGHT WATCH –curfew EHM (ELECTRONIC HOME MONITORING) –House arrest DYS –Division of Youth Services CHILDRENS’ DIVISION –The old DFS

3 JURISDICTION CHAPTER 211, RSMo. Section (3), RSMo.- delinquency –Exclusive jurisdiction over child under 17 years old who violates state or municipal law AND either lives in the circuit or the crime occurred in the circuit (2) Status offender: fails to go to school, follow parents directions, habitually absent w/o good cause, behavior or associations are injurious to their welfare or welfare of others, child is charged with an offense not criminal (curfew, drinking, etc.) Exceptions: –Municipal court: 15 ½ years old & traffic or underage smoking –If commits new crime at age 17 while under juvenile court jurisdiction, the adult court has jurisdiction over new crime – , RSMo.: may have jurisdiction up to 21 years old

4 Juvenile Court Rules Juvenile Rules Civil Rules of Procedure no longer apply to delinquency –See Rule (2) Rule 25 of criminal procedure now applies –Rule Discovery Criminal Substantive Law Chapter 210 is very informative and helpful

5 HOW DOES A CASE FLOW THROUGH JUVENILE COURT? DELINQUENCY or status offender Section (2) & (3) Take into custody or summons: & Rule Informal Adjustment: & Rule 112 Petition or Motion to Modify, & Rule 113 Detention hearing (3 days) & Rule –Detained or conditional release Adjudication (60 days taken out in Rule see comments) –If detained at earliest date possible Disposition (90 days taken out in Rule ) –PROBATION –Residential Treatment –DYS –Release from Jurisdiction (Rule (a)) Certification & Rule 129 –Motion to dismiss –Occurs before adjudication –If not certified, adjudication held

6 HEARING PROCEDURES Section , RSMo (1) Court may be as formal or informal as court wants –Rule Rules of evidence apply at adjudication –Justifies hearsay at dispositional hearings (6): Not open to public except for certain cases – cert cases –State ex rel. Post Dispatch v. Garvey, 179 S.W.3d 899 (Mo. 2000) Section 8: Victims have rights: make a statement, submit a written statement, solely on the facts of the case and injuries/damages –Appendix B: Mo. Stds. For Administration of Juvenile Justice

7 PETITION (PET) AND MOTION TO MODIFY (MM) Section , RSMo. –Lives in jurisdiction, can be found in jurisdiction or crime committed in jurisdiction –Sets forth what must be in petition: Parents, address, age, specific factual allegations that exert jurisdiction under Section , RSMo –Modify a court order: ask for a modification of order of jurisdiction because change of circumstances New crime, probation violation/violation of court order, custody issues, abuse/neglect

8 DETENTION HEARING Mo. Sup. Ct. Rule : Temporary Detention for 24 hrs (b) & : Judge signs to extend detention for total of 3 days – hearing must be held to remain thereafter : Detention hearing Informed of right to counsel, receive evidence relevant to necessity to detain and court shall either: –Release, conditional release or continue detention. –Detain if 1. protect juvenile 2. protect others 3. may flee 4. no custodian at court 5. is a fugitive from another jurisdiction

9 Release from Detention Rule : change of circumstances –Written request must be filed with facts –Can be denied with or without hearing Conditional Releases –If everyone agrees, written form –Electronic Home Monitoring Phone cannot have any features on it Cannot leave house except for school, work, etc. Special circumstances –Funeral, sick parent, etc –Special motion for treatment

10 Right to Counsel Rule and A party is entitled to be represented by counsel Court shall appoint if indigent or if necessary to assure a full and fair hearing –State ex rel Gordon v. Copeland, 803 S.W.2d 153 (Mo. App., S.D., 1991) Counsel shall be afforded a reasonable time to prepare Counsel shall serve for all stages of proceeding including appeal unless relieved by court for good cause shown –Puritz, Ensuring Authentic Youth Participation in Delinquency cases: Creating a Paradigm for Specialized Juvenile Defense Practice, 45 Fam. Ct. Rev. 466 (July, 2007)

11 Right to Counsel In Re Gault, 387 U.S. 1, 87 S.C.t 1428 (1967): –Juvenile are entitled to counsel in delinquency matters: right to confront witnesses, right to not incriminate, to notice of charges –Due process clause of 14 th Amendment applies –Reasonable time to prepare, notice of allegations, discovery In the Interest of S.H., 75 S.W.3d 286 (Mo. App., E.D., 2002): Gault holds that the 6 th Amendment applies to delinquency cases which means the juvenile has a right to be present at all court hearings so as to confront his witnesses and to defend himself under due process of law Kent v. United States, 383 U.S. 541, (1966) –“Not a formality” but a “meaningful right” –Certification hearing is a “critical stage” and therefore requires basic requirements of due process and fairness; notice and discovery, a hearing, assistance of counsel and adequate time to prepare, findings from the court –** social files!! In the Interest of D.J.M., 259 S.W.3d 533 (Mo. 2008) Parent and child can only be represented by same counsel if no conflict and court shall appoint to ensure fair hearing unless waived by child

12 WAIVER OF COUNSEL Rule In the Interest of D.L., 999 S.W.2d (Mo. app., S.D. 1991) Court must treat waiver of child with same standard used in with adult waivers Voluntary, intelligent waiver Extreme disadvantage of going pro se Court must notify child and parent of; –Nature of charges –Statutory offenses –Range of punishment –Possible defenses –Broad understanding of the trial process –** Current case pending in E.D. In the Interest of M.W.M.

13 COMPETENCY State ex rel. Reed v. Frawley, 59 S.W.3d 496 (Mo. banc 2001): –Competency applies to extradition hearings State ex. Rel. D.C. v. McShane, 136 S.W.3d 67 (Mo. banc 2004) –Competency applies to juvenile certification hearings and same std. as for adults: “sufficient present ability to consult with lawyer with a reasonable degree of rational understanding and a rational and factual understanding of proceedings against him.” –Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788 (1960); State v. Tokar, 918 S.W.2d 753 (Mo. 1996).

14 Mental Evaluations Rule : can be evaluated for any physical or mental issue –Now includes “to examine whether juvenile is a proper subject to be dealt with by the court” or for certification –Comments: can take the 5th –Important to take an active role in this process : court cannot order DMH to take legal custody of children : Mental Illness : Developmental Disability –Important to have available all the necessary records to assist –IEP records –Prior clinic/hospital records

15 STATEMENTS OF JUVENILES 5 th Amendment right to not be interrogated without counsel present –As soon as enter, no one can talk to your client Miranda applies –Hayley v. Ohio, 332 U.S. 596,(1948), Gallegos v. Colorado, 370 U.S. 49 (1962) : when taken into custody by DJO or police, shall be advised prior to questioning of rights State v. Werner: 9 S.W.3d 590 (Mo. 2000)-defines “in custody” Rule : –Must be advised that if certified, any statements can be used in adult proceedings –Parent or friendly adult must be present State v. Greer: 159 S.W.3d 451 (Mo. App., E.D., 2005) –DJO must be present for rights waiver

16 STATEMENTS OF JUVENILE CONT’D , RSMo.: If in custody, statements made to DJO are not admissible for adjudication If Certified, can question you before charged as adult –6 th Amendment only attaches after formal charges are filed –6 th amendment right in juvenile does not automatically transfer if certified as adult »State v. Washington, 9 S.W.3d 671 (Mo. E.D. 1999)

17 Pretrial matters Motions to Suppress Discovery: –Rule (2): Rule 25 applies to delinquency now Depositions by both parties allowed Preservation depositions by state allowed –Rule – very specific Within 10 days of detention hearing or filing Limited to documents in their actual possession

18 ADJUDICATION In Re Windship, 397 U.S. 358, 90 S.Ct (1970), In Re Fisher, 468 S.W.2d 198 (Mo. 1971): –adjudication phase shall have “beyond a reasonable doubt standard” for delinquency C.L.B. v. Juvenile Officer, 22 S.W.3d 233 (Mo. App., W.D. 2000) –If underlying probation violation is new crime, new crime must be decided by beyond a reasonable doubt. –C.E.E. v. Juvenile Officer, 727 S.W.2d 451 (Mo. App., W.D. 1987): probation violations use a clear and convincing std. Section , RSMo –Within 60 days Rule –Very specific findings must be made Rule –Rules of evidence apply, does not specify disposition Rule –Record of all testimony shal be made –Party offering exhibit must maintain it for appeal

19 ADJUDICATION SPECIAL ISSUES In the Interest of J.A.H, 293 S.W.3d 116 (Mo. App., E.D. 2009) insufficient evidence of mental intent in sex case In the interest of V.L.P., 947 S.W.2d 546 (Mo. App., W.D. 1997) –Tampering-element of knowledge lacking In the Interest of C.G.M., 258 S.W.3d 879 (Mo. App. W.D. 2008) –Terrorist threat-insufficient evidence of mental intent In the Interest of K.B.C., WD68750, ---WL , Nov. 4, 2008 –Best evidence rule applies in juvenile court

20 DISPOSITION Rule 118: social study-only for disposition Hearing process Section , RSMo. –OCS Restitution, community service, drug treatment suspend driver’s license, be examined by psych –Intensive Supervision –Residential treatment –Inpatient drug or mental health treatment –Children's Division?-if put into CD-reasonable efforts analysis required –DYS: can commit for a set time not to exceed 18 th birthday – ,.185 restitution can be ordered MUST REVIEW SOCIAL FILE!!

21 CERTIFICATION HEARINGS Section , RSMo. & Rule 129 Discretionary –Between –any felony - Mandatory Cert –Any age –7 “serious felonies” MURDER 1 ST MURDER 2 ND ASSAULT 1ST ROBBERY 1ST FORCIBLE RAPE FORCIBLE SODOMY SALE OF DRUGS – or if 2 or more felony adjudications Written report that addresses 10 factors the court must review Seriousness of offense and whether protection of community requires transfer Offense against persons or property Offense involve force, viciousness or violence Repetitive pattern that indicates the child is beyond rehab Record and history of child Sophistication and maturity (home & environmental situation, emotional condition, & pattern of living) Age of child Programs and facilities available in juvenile system Whether or not child can benefit from the treatment and rehabilitative programs

22 CERTIFICATION HEARINGS Court does not have to make findings on every factor –State v. Perry, 954 S.W.2d 554 (Mo. App. S.D. 1994) Once certified, always certified –If found not guilty, then juvenile court has jurisdiction until 17 –It’s not enough to have them not file the charge in adult court or to dismiss the charge See State v. K.J., 97 S.W.3d 543 (Mo. App., W.D. 2003) Section , Dual jurisdiction –State ex rel Sanders v. Kramer, 160 S.W.3d 822 (Mo. App., W.D. 2005) Not appealable –File motion to dismiss the indictment –Only appeal if convicted of charge in adult court

23 SPECIAL MATTERS Cannot execute someone under 18 years old –Roper v. Simmons, 543 U.S. 358 (2005) APPEALS – , RSMo.: 30 days to appeal (vs. 10 days from criminal) See Rule 120 (allowed by statute) –Prosecutor can file interlocutory appeal on motions to suppress (3 days) JUVENILE SEX OFFENDER REGISTRATION

24 Change of Judge Rule 121 –Section d. deals with delinquency –Within 5 days of detention hearing or designation of trial judge –Not allowed in supplemental petition or motion to modify a prior order –Procedure Immediately assign new judge

25 Open Hearings Rule open records-petition court Section , RSMo. –All felony delinquency cases and TPRs are open to the public. Court can exclude for good cause. General public excluded when any child or victim testifies Section , RSMo.- A, B and C if adjudicated of 2 or more A, B, or C felonies (up for mandatory certification hearing) –State ex re. St. Louis Post Dispatch v. Garvey, 179 S.W.3d 899 (Mo. 2000) If up for certification, cannot exclude general public unless in the best interest of the Juvenile

26 CHILD’S ATTORNEY VS. GAL WHEN YOU REPRESENT THE CHILD, YOU REPRESENT WHAT THEY WANT WHEN YOU ARE THE GAL, YOU REPRESENT WHAT IS IN THE CHILD’S BEST INTEREST

27 Important resources Anything by Thomas Grisso –Competency, waiver of rights Anything by Marty Beyer –Adolescent development, competency –Delinquency notebook –Strategies for detention hearings


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