JUVENILE LAW
REPRESENTING THE CHILD
IN A DELINQUENCY CASE
LINGO (see also Rule
110.04 definition section)
•
DJO:
•
OCS or J&S
•
LEGAL OFFICER
•
INTENSIVE SUPERVISION
•
DETENTION
•
DELINQUENT
•
•
RESIDENTIAL TREATMENT
NIGHT WATCH
•
VOC (violation of court order)
•
•
ADJUDICATION
EHM (ELECTRONIC HOME
MONITORING)
•
DISPOSITION
•
ADMISSION/DENIAL
–
Deputy Juvenile Officer
–
Probation
–
prosecutor
–
–
More intense probation
Gun Court
–
Detained, not arrested
–
crime
–
curfew
–
Probation violation
–
House arrest
–
Trial-found guilty or not guilty
•
DYS
–
Division of Youth Services
–
sentencing
•
CHILDRENS’ DIVISION
–
The old DFS
–
Plead guilty or not guilty
JURISDICTION
•
•
CHAPTER 211, RSMo.
Section 211.031.1(3), RSMo.- delinquency
•
211.031.1(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:
•
– 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
– 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
– 211.041, RSMo.: may have jurisdiction up to 21 years old
Juvenile Court Rules
• Juvenile Rules 110-129
• Civil Rules of Procedure no longer apply to
delinquency
– See Rule 110.03(2) Rule 25 of criminal
procedure now applies
– Rule 127.11 Discovery
• Criminal Substantive Law
• Chapter 210 is very informative and
helpful
HOW DOES A CASE FLOW
THROUGH JUVENILE
COURT?
•
•
•
•
•
•
•
•
•
DELINQUENCY or status offender
Section 211.031.1(2) & (3)
Take into custody or summons: 211.101-.131 & Rule 127.01-06
Informal Adjustment: 211.083 & Rule 112
Petition or Motion to Modify, 211.091 & Rule 113
Detention hearing (3 days) 211.141 & Rule 127.07-.08
– Detained or conditional release
Adjudication (60 days taken out in Rule 128.02 see comments)
–
If detained at earliest date possible
Disposition (90 days taken out in Rule 128.03)
– PROBATION
– Residential Treatment
– DYS
– Release from Jurisdiction (Rule 119.03(a))
Certification 211.071 & Rule 129
– Motion to dismiss
– Occurs before adjudication
– If not certified, adjudication held
HEARING PROCEDURES
• Section 211.171, RSMo
•
(1) Court may be as formal or informal as court wants
– Rule 116.02 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
PETITION (PET) AND
MOTION TO MODIFY
(MM)
• Section 211.091, 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 211.031.1
• Section 211.251, 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
DETENTION HEARING
•
•
Mo. Sup. Ct. Rule 127
127.06: Temporary Detention for 24 hrs.
•
127.06(b) & 127.07: Judge signs to extend detention for total of 3 days
– hearing must be held to remain thereafter
•
•
127.08: 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.
2.
3.
4.
5.
protect juvenile
protect others
may flee
no custodian at court
is a fugitive from another jurisdiction
Release from Detention
• Rule 127.09: 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
Right to Counsel
• Rule 115.01 and 211.211
• 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)
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 14th 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 6th 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
WAIVER OF COUNSEL
• Rule 115.02
• In the Interest of D.L., 999 S.W.2d 291 153 (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.
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).
Mental Evaluations
• Rule 117.01: 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
• 211.201: court cannot order DMH to take legal custody of
children
• 211.202: Mental Illness
• 211.203: Developmental Disability
– Important to have available all the necessary records to assist
– IEP records
– Prior clinic/hospital records
STATEMENTS OF
JUVENILES
•
•
•
•
5th 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)
211.059: 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 126.01:
– 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
STATEMENTS OF
JUVENILE CONT’D
• 211.271.3, RSMo.: If in custody, statements made
to DJO are not admissible for adjudication
• If Certified, can question you before charged as
adult
– 6th Amendment only attaches after formal
charges are filed
– 6th amendment right in juvenile does not
automatically transfer if certified as adult
» State v. Washington, 9 S.W.3d 671 (Mo. E.D.
1999)
Pretrial matters
• Motions to Suppress
• Discovery:
– Rule 110.03(2): Rule 25 applies to delinquency
now
• Depositions by both parties allowed
• Preservation depositions by state allowed
– Rule 127.11 – very specific
• Within 10 days of detention hearing or filing
• Limited to documents in their actual possession
ADJUDICATION
•
•
In Re Windship, 397 U.S. 358, 90 S.Ct. 1068 (1970), In Re Fisher, 468 S.W.2d 198
(Mo. 1971):
–
adjudication phase shall have “beyond a reasonable doubt standard” for delinquency
–
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.
C.L.B. v. Juvenile Officer, 22 S.W.3d 233 (Mo. App., W.D. 2000)
–
•
Section 211.03.2, RSMo
•
Rule 128.02
•
Rule 116.04
•
Rule 116.01
–
Within 60 days
–
Very specific findings must be made
–
Rules of evidence apply, does not specify disposition
–
–
Record of all testimony shal be made
Party offering exhibit must maintain it for appeal
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, ---WL4773431---,
Nov. 4, 2008
– Best evidence rule applies in juvenile court
DISPOSITION
•
•
•
Rule 118: social study-only for disposition
Hearing process 128.02-.03
Section 211.181, 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: 211.181.4 can commit for a set time not to exceed 18th birthday
– 211.085, .185 restitution can be ordered
MUST REVIEW SOCIAL FILE!!
CERTIFICATION
HEARINGS
•
•
•
Section 211.071, RSMo. & Rule
129
Discretionary
– Between 12-17
– any felony Mandatory Cert
– Any age
– 7 “serious felonies”
–
•
•
•
•
•
•
•
MURDER 1ST
MURDER 2ND
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
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 211.073, 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
SPECIAL MATTERS
• Cannot execute someone under 18 years
old
– Roper v. Simmons, 543 U.S. 358 (2005)
• APPEALS
– 211.261, 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
• 211.425
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
Open Hearings
Rule 122.02 open records-petition court
• Section 211.319, 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 211.171, 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
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
Important resources
• Anything by Thomas Grisso
– Competency, waiver of rights
• Anything by Marty Beyer
– Adolescent development, competency
• www.njdc.info
– Delinquency notebook
– Strategies for detention hearings