Right%20To%20Counsel%20In%20Juvenile%20Court

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Right To Counsel In Juvenile Court

• Class 14

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HISTORICAL AND CONSTITUTIONAL CONTEXT

• The juvenile court functioned for nearly 70 years
  with little constitutional oversight and without
  the required presence of counsel.
• Haley v Ohio
• the fact that he had no friend or counsel to
  advise him
• the callous attitude of the police toward his
  rights
• Gallegos v Colorado
• ..a 14 year old boy is unlikely to have any
  conception of what will confront him when he is
  made accessible only to the police
• Fare v Michael C.
• Request to see Probation Officer was tantamount
  to request for an attorney under the totality of
  circumstances of the interrogation
• Dissent (Marshall, Stevens, Brennan) argued that
  Miranda is the basis for the right, and request
  for presence of PO was not the same

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• Kent v. U.S. (1966) Among other things, Court
  held that there must be a meaningful right to
  representation by counsel in that the childs
  attorney must be given access to the documents
  considered by the juvenile court in making a
  waiver decision, including a statement of the
  reasons for transfer.
• Reliance on D.C. statutory law left doubt about
  the significance of holding to other
  jurisdictions.
• Justice Fortas the right to representation by
  counsel is not a formality. It is not a grudging
  gesture to a ritualistic requirement. It is of
  the essence of justice.

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• In Re Gault, 387 U.S. 1 (1967)
• Youths are not the equal of police and require
  procedural safeguards such as the presence of
  counsel
• Juveniles and their parents are entitled to
  constitutionally adequate notice of the precise
  nature of the charges against youth.
• A youth charged with an act of delinquency must
  be advised of the right to the assistance of
  counsel and, if indigent, given the right to have
  counsel appointed.
• The juvenile has the right to confront the
  witnesses against him or her in the hearing on
  guilt or innocence and to cross-examine those
  witnesses.
• The privilege against self-incrimination applies
  to juvenile proceedings and the child must be
  informed of that right as well.

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• The juvenile needs the assistance of counsel to
  cope with problems of law, to make skilled
  inquiry into the facts, and to insist upon
  regularity of the proceedingsThe child requires
  the guiding hand of counsel at every step in the
  proceedings against him.
• Following Gault, states moved to implement the
  right to counsel.
• However, few states have defined it as an
  absolute right by requiring that the juvenile
  have the advice of an attorney before the right
  of counsel can be waived, or by prescribing an
  unwaivable right to counsel.

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Right To Counsel After Gault

• Since Gault, in many jurisdictions, the promise
  of counsel remains unrealized
• Study by the Government Accountability Office
  (GAO) revealed that many juveniles waive their
  right to counsel.
• The rate in rural jurisdictions rises to 50 or
  higher.
• Feld Less than 50 of juveniles adjudicated
  delinquent receive the assistance of counsel.
• Significant disparity between large urban
  jurisdictions and rural areas.
• State studies
• North Carolina Over half (58.2) not represented
  by attorney
• Minnesota Enormous county-by-county variations
  in rates of representation, ranging from a high
  of over 90 to a low of less than 10
• Quality of legal representation
• Study by Richard Lawrence found attorneys devoted
  little time to juvenile delinquency cases. More
  than 60 of attorneys surveyed spent two hours or
  less representing their juvenile clients.
• NY State Bar Association In 47 of cases
  observed outside NYC, attorneys had either not
  prepared or prepared minimally for the case.

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Explanations

• Why are so many youth still unrepresented in
  juvenile proceedings?
• Parental reluctance to retain an attorney
• Inadequate or non-existent public defender legal
  services
• Especially in rural jurisdictions
• Judicial encouragement of and readiness to find a
  waiver of the right to counsel in order to ease
  administrative burdens on the courts
• Cursory and misleading judicial advisories of
  rights that inadequately convent the importance
  of the right to counsel and suggest that the
  waiver litany is simply a meaningless
  technicality
• A continuing judicial hostility to an advocacy
  role in traditional treatment-oriented courts
• Judicial predetermination of dispositions with
  non-appointment of counsel where probation or
  non-incarceration is the anticipated outcome

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Pre-Trial Interrogation

• The most common explanation for
  non-representation is waiver of counsel.
• In most jurisdictions, the validity of a minors
  waiver of the right to counsel is determined by
  assessing whether there was a knowing,
  intelligent, and voluntary waiver under the
  totality of circumstances.
• While the Supreme Court has never ruled on the
  validity of a minors waiver of the right to
  counsel in delinquency proceedings, it upheld a
  minors waiver of the Miranda right to counsel at
  the pretrial investigative stage under the
  totality of the circumstances. (Fare v. Michael
  C.)
• But, given what we know about the developmental
  capacity of juveniles, can such a waiver occur
  voluntarily and intelligent?

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Competence

• Thomas Grisso, Juveniles Capacities to Waive
  Miranda Rights An Empirical Analysis, 68 Cal. L.
  Rev. 1134 (1980)
• Conducted tests to see whether juveniles could
• Paraphrase the words in the Miranda warning
• Define critical words in the Miranda warning,
  including attorney, consult, and
  appointment.
• Give correct true-false answers to twelve
  re-wordings of the Miranda warnings.
• As a class, juveniles younger than fifteen years
  of age failed to meet both the absolute and
  relative (adult norm) standards for
  comprehensionThe vast majority of these
  juveniles misunderstood at least one of the four
  standard Miranda statements, and compared with
  adults, demonstrated significantly poorer
  comprehension of the nature and significance of
  the Miranda rights.
• The level of comprehension exhibited by juveniles
  16 and older, although comparable to adults, was
  inadequate.
• Linguistic competence sufficient?

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• Additional considerations
• Juveniles more susceptible than adults to the
  coercive pressures of interrogation.
• Inexperienced youths may waive their rights and
  talk in the short-sighted and unrealistic belief
  that their interrogation will end more quickly
  and secure their release. (Taylor v. Maddox)
• Youth typically acquiesce to police suggestions
  more easily and speak less assertively or
  aggressively than adults.
• Moran v Burbine, 412 U.S. 412, at 421 (1986)
• Waiver must be voluntary, defendant must have
  knowing and intelligent awareness of the right
  relinquished
• Choice must be uncoerced
• So, what if the defendant simply says Yes ?

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Procedural Safeguards

• Some states have included special procedural
  safeguards, such as the interested adult rule,
  which requires parental presence at interrogation
  
• It is believed that the interested adult can
  remedy the shortcomings resulting from immaturity
  by providing advice to enhance the juveniles
  understanding of his or her rights and by being
  present during custodial interrogation to protect
  the child from the compelling atmosphere of
  custodial interrogation (State v. Benoit)
• But, the presence of parents during interrogation
  may not provide the envisioned benefit for the
  juvenile and may increase, rather than decrease,
  the coercive pressures on a youth.

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Mandatory, Non-Waivable Counsel

• Per se rule that requires consultation with
  counsel and the presence of an attorney at every
  interrogation of a juvenile and prior to any
  waiver of the right to counsel.
• In the Interest of J.D.Z.
• Section 27-20-26 N.D.C.C., not only provides
  that a party is entitled to representation, but
  specifically states Counsel must be provided
  for a child not represented by his parent,
  guardian, or custodianThe mere presence of a
  parent does not constitute representation.
• A few states require juveniles to be represented
  by counsel at interrogation and bar youths from
  waiving the right to counsel without the written
  consent of a parent.

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Iowa Stat. 232.11

• A child shall have the right to be represented by
  counsel at the following stages of the
  proceedings within the jurisdiction of the
  juvenile court
• From the time the child is taken into custody for
  any alleged delinquent act that constitutes a
  serious or aggravated misdemeanor or felony and
  during any questioning thereafter by a peace
  officer or probation officer
• The childs right to be represented by
  counselshall not be waived by a child less than
  sixteen years of age without the written consent
  of the childs parent, guardian, or custodian.
  The waiver by a child who is at least sixteen
  years of age is valid only if a good faith effort
  has been made to notify the childs parent,
  guardian, or custodian that the child has been
  taken into custody and of the alleged delinquent
  act for which the child has been taken into
  custody, the location of the child, and the right
  of the parent, guardian, or custodian to visit
  and confer with the child.

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Mandatory, Non-Waivable Counsel?

• Procedural safeguard or dubious technicality?
• Analogies?
• Exclusionary rule