1. Lisa Smith-ButlerChildren & the LawSpring 2013
2. JUVENILE PROCEEDING CRIMINAL PROCEEDING Respondent  Defendant Taking into Custody  Arrest Petition for Delinquency  Charged with a Crime Detention Hearing  Bail Hearing Adjudicatory Hearing Admits the Facts of the  Trial Petition  Pleads Finding of Delinquency  Verdict Dispositional Hearing  Sentencing Commitment to Treatment  Jail
3.  Common Law  Juveniles over 7 treated as adults.  Juveniles under 7 treated as incapable of forming criminal intent.  12 year old hung as punishment. 1899  Illinois/1st Juvenile Court  1925
4.  Create a separate court for children under the age of 16 who were neglected, dependent, or delinquent; Change the reason for the court from punishment to rehabilitation; To avoid stigmatizing a juvenile, court proceedings would be confidential; Juveniles were to be kept apart from incarcerated adults; and Juvenile court proceedings were to be informal rather than following and using the legal model.
5.  In Re Gault  Gault sentenced to six years in detention home via Arizona’s juvenile justice system.  An adult could have been sentenced to no more than 2 months in jail and fined between $5.00 to $50.00 for having committed Gault’s offense.
6.  Whether the due process clause of the 14th Amendment requires that constitutional protections, such as notice, cross examination, counsel, and self incrimination, be made applicable in the adjudicatory phase of a juvenile proceeding?
7.  During delinquency adjudicatory proceedings, the due process clause of the 14th Amendment requires that proceedings that may result in the child’s freedom being curtailed require:  notice of the charges;  right to cross examine and confront witnesses;  right to invoke the privilege against self incrimination; and  right to counsel.
8.  Began what critics called the constitutionalization of the juvenile justice system; or What advocates viewed as the application of fundamental fairness in juvenile proceedings.
9.  What are the differences between the juvenile justice process and criminal proceedings for adults?
10.  Whether a juvenile will be tried as a juvenile within the juvenile justice system and subject to a juvenile court disposition or whether the juvenile will be tried as an adult in a criminal court and subject to adult sanctions?
11.  Legislative  Exclude certain offenses committed by children of certain ages from jurisdiction of the juvenile court. Prosecutorial  The prosecutor decides in which court to charge the juvenile. Concurrent  The juvenile and criminal court have jurisdiction. Juvenile Court Waiver  The juvenile judge decides whether to waive jurisdiction and transfer the juvenile up to criminal court. Reverse Certification  The judge in the criminal court decides to transfer down the juvenile to juvenile court.
12.  46 states provide for the waiver of jurisdiction over the juvenile by the juvenile court judge. When deciding to waive jurisdiction over the juvenile and transfer to criminal court, legislatures understand Kent to constitutionally require:  waiver hearing;  providing the juvenile and attorney access to any records examined by juvenile judge; and  providing a written statement of reasons for the waiver by the judge.
13.  South Carolina’s State v. Pittman indicates that the juvenile judge should consider the following criteria when deciding whether to waive jurisdiction over a juvenile:  seriousness of alleged offense;  whether the offense was committed in a violent, willful, or premeditated manner;  whether the offense was committed against a person or property;  the prosecutive merit of the case;  the desirability of trial and disposition in the same court;  the sophistication and maturity of the juvenile;  the record and previous history of the juvenile; and  whether the public can be protected and whether the juvenile can be rehabilitated.
14.  Intake  Period between being taken into custody but before formal court proceedings begin. Diversion  To what? ▪ social agencies ▪ church programs ▪ Outward Bound  Criteria to decide whether to divert? ▪ child’s attitude toward the offense ▪ child’s record ▪ offense
15.  Constitutionally permissible (Schall v. Martin) & bail not required; Probable cause is necessary to detain; Counsel is required since juvenile faces loss of liberty (see Gerstein v. Pugh) Incarceration, separate from adults, is required; Length of time for detention is limited; Juveniles do have the right to a speedy trial; criteria to evaluate “speedy” are from Barker v. Wingo and include:  length of the delay;  reason for the delay;  prejudice to the juvenile because of the delay; &  seriousness of the offense.
16.  Most states’ statutes state that “taking into custody” is not an arrest. To “take a juvenile into custody” usually requires that the juvenile be found to be violating a criminal law or ordinance. Special treatment is required once a juvenile is taken into custody and includes:  notification of parents;  incarceration separately from adults;  limited taking of fingerprints and photographs; and  maintaining separate and confidential records.
17.  While taking into custody does not constitute an arrest, the law of arrest is applied to juveniles. Thus the Fourth Amendment’s instructions regarding search and seizures, except in the public school setting, are applicable to juveniles.
18.  Probable Cause & Warrant Stop & Frisk  Informant tip & evasive action Consent  3rd Party Consent
19.  While probable cause is required to search adults, reasonable suspicion will suffice to search within the public school setting. (New Jersey v. T.L.O.) Action (1995) permitted schools to require student athletes to submit to drug testing if the student wanted to participate in after school athletics. Earls expanded this, allowing schools to drug test all students who want to participate in extracurricular activities.
20.  Miranda v. Arizona requires that individuals taken into police custody be given the following warnings before a police custodial interrogation can begin:  right to remain silent;  anything you say can and will be used against you;  right to an attorney; and  if you cannot afford an attorney, one will be appointed for you.
21.  Miranda focuses on the 5th Amendment privilege against self incrimination and the 6th Amendment right to counsel rather than trying to determine the voluntariness of an individual’s statement. Miranda is applicable to juveniles.
22.  When is a juvenile said to “knowingly and intelligently” waive his Miranda rights? Consider:  Age of juvenile  Education of juvenile  Juvenile’s understanding of the charges  Whether juvenile is allowed to consult with friends and relatives  Methods used in the interrogation  Length of the interrogation
23.  Does asking to speak to a probation officer invoke the 5th amendment’s privilege against self incrimination? No. See Fare v. Michael C. Many states do provide greater rights than the Court’s understanding of the Constitution. Even if juvenile knowingly and intelligently waived Miranda rights, Leon says that there is still a need to inquire if a juvenile’s confession is voluntary. The State can prove that a confession was voluntarily made by a preponderance of the evidence. See Lego v. Twomey.
24.  In McKeiver, the Supreme Court indicated that juveniles were not constitutionally entitled to a jury trial.
25.  While the Sixth Amendment guarantees adults accused of a crime the right to a speedy, public, and impartial jury trial,  McKeiver indicates that a jury trial is not required;  public trials are typically not required since juvenile proceedings should be confidential but that depends upon the state. See J.S. (VT) and RLR (AL); and  a speedy trial, though not public and without a jury, is required. See In Re Thomas J.
26.  In Re Causey indicated that it is constitutionally required that a juvenile be granted the right to plead “not guilty” by reason of insanity if not competent at the time the delinquent act was committed. Juveniles must also be competent to stand trial, i.e. “…present ability to consult with his lawyer to a reasonable degree of rational understanding.” See Dusky v. U.S. and
27.  Since the function of the juvenile court was rehabilitation rather than punishment, disposition favors rehabilitation; however, “get tough” legislation by states has shifted the emphasis from rehabilitation to proportionality, i.e. make the punishment fit the crime. Appellate courts will generally uphold a juvenile court’s disposition, including institutional commitment, unless there is a showing of “abuse of discretion.” See In Re Gregory S.
28.  Capital punishment or the imposition of the death penalty for an act committed by a juvenile under the age of 18 violates the 8th Amendment’s prohibition against cruel and unusual punishment. See Roper v. Simmons. Life in prison without the possibility of parole for an act committed by a juvenile under the age of 18 violates the 8th Amendment’s prohibition against cruel and unusual punishment. See Miller v. Alabama.
29.  After Gault, what are the differences between the juvenile justice system and the criminal justice process?