GPSolo

Defending a Juvenile Delinquency Case

Kenneth A. Vercammen

Handling juvenile delinquency cases is becoming a subspecialty that requires special knowledge of the juvenile justice system. Juvenile cases are difficult to handle for a variety of reasons:

  • Juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt.
  • Parents sometimes refuse to acknowledge their child’s involvement.
  • Different rules and court systems are involved.

The Intake Interview

When clients first come to my office, we have them fill out our Confidential Criminal Case Interview Sheet. We obtain background information such as the client’s name, address, grade in school, future plans, prior criminal charges, current offenses charged, date of arrest, names of other witnesses, and details on what either the client or the client’s parents were told by the police. Our interview sheet also asks if there is anything else important. The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.

After reviewing the complaint and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining his or her side of the story. We also ask if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I usually open up the statute on the computer and print a copy. Then we show the client the specific language of the charged offense and explain the maximum penalties that could be imposed. By understanding the charges they are facing, clients are more likely to realize the seriousness of the offense and pay our retainer.

According to the ABA Model Rules of Professional Conduct, a retainer letter or written statement of fees is required for new clients. Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client. We occasionally call the court to advise that we will be handling the case.

Law is a business. I try to impress my clients and hope that they will send additional clients. I also provide all my clients with a brochure explaining how to appear in court, a brochure on motor vehicle points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable.

I recommend that my clients provide me with a list of ten to 15 reasons why they should not go to jail/detention and why the court should impose the minimum penalties. This provides us with information for mitigation and penalties and also provides information to be considered by the prosecutor in plea negotiations and the judge in sentencing.

Who Is the Client?

The client must be the juvenile charged—not the parent or grandparent who pays the bills. It is important to preserve the confidence of the client. I let the juveniles know that they can call us whenever they want, and we will not tell their parents anything told to us in confidence.

Discovery in non–motor vehicle cases is requested in writing to the county prosecutor/district attorney, not the town municipal prosecutor. Motor vehicle charges alone are heard by the municipal court judge and handled by the municipal prosecutor.

Trial call is the next appearance, and the defense counsel will receive discovery, if it has not previously been received. Applicable motions should be filed prior to the trial call: motion to suppress, compel additional discovery, dismiss complaint, etc.

Juveniles have most of the same rights under the U.S. Constitution as adults:

  • Fourth Amendment: no unreasonable searches
  • Fifth Amendment: right to remain silent
  • Sixth Amendment: right to an attorney
  • Sixth Amendment: right to cross-examine witnesses

Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail.

It is a popular misconception that records of juvenile arrests are automatically erased when juveniles turn 18. In fact, the criminal “charge,” even if later dismissed, stays on their record forever unless clients have their attorney file a formal petition for expungement.

Post-Interview Preparation

We also make a motion to suppress where there is a question regarding the validity of a stop or search. New Jersey and many jurisdictions will also permit a motion to dismiss on de minimis infractions for non-substantial offenses (e.g., shoplifting one candy bar). Any other motions to dismiss should be made in writing, such as those regarding statute of limitations or lack of jurisdiction.

Often in cases that deal with just one triable issue, such as the admissibility of a blood test result for alcohol or drugs, you can make a motion in limine or suggest a pretrial conference. It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six-hour trial.

Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not we have a reasonable prospect of winning.

If it is a drug case, we may make a written objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Write to and call the prosecutor ahead of time to see if a matter can be worked out or plea-bargained.

The Offense and Arrest

Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime. The police then sign a complaint form, which later is forwarded to the superior court, family part, in the county where the juvenile lives. Generally, the juvenile will be released to the custody of parents or guardians. A person is a juvenile for delinquency purposes until his or her 18th birthday. For serious crimes, if the juveniles are a threat to themselves or the community, or if the juveniles are habitual offenders, they can be brought to the county juvenile detention center. They will remain in detention until released by the superior court judge at a recall hearing, after a probable-cause hearing, or at the conclusion of the case. It is rare and serious when a juvenile is held at the detention center.

Miranda Warning and Confessions

Police must provide a Miranda warning to juveniles. Parents/guardians do not have to be present for police questioning. If a confession was obtained, review the discovery. You need to try to preclude the admission of a confession. The issue will be whether the waiver of a Miranda warning was “knowing and voluntary” by the juvenile.

Case law indicates both juveniles and even special-education students can waive their right to remain silent.

Diversion of Criminal Charges

In many states, the county prosecutor’s office of family court initially screens each complaint and decides whether or not to divert the case. Diversion for many cases means removing them from court altogether and sending them for total handling to a juvenile conference committee (JCC) or intake service conference.

The first rung on the typical diversion ladder is the JCC, which is a town-based group of citizens who work with the juvenile offender to devise an appropriate resolution of the case. Citizen members are appointed to recommend to the court how to handle selected juvenile cases. Members meet with the juveniles and make recommendations, which may include restitution, participation in a job placement or community service program, counseling, writing letters of apology, or other conditions.

For juveniles with prior charges or more serious charges, the case is put on the formal trial calendar. These proceedings resemble adult criminal proceedings. The juvenile must be represented by an attorney, and the state is represented by an assistant prosecutor.

Relatively few juveniles are currently incarcerated, but the number may increase as proposed legislative changes require jail terms for juveniles who commit certain offenses such as auto thefts and for juveniles who continue to commit heinous offenses.

For the most serious crimes, the county prosecutor can make a motion to remove to the adult criminal court.

First Appearance in Formal Trial Cases

The court itself will send a copy of the complaint to the juvenile’s parents and a mandatory notice to appear for an interview for public defender eligibility. The public defender handles only indigent cases—juveniles whose parents are on welfare, unemployed, and have no assets.

This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a notice of appearance.

Preparing for Court

In cases involving essential witnesses, we may write to the witnesses and ask them to call us so that we can find out what really happened. If possible, I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness provides an inconsistent statement, but our law clerks could testify. I sometimes speak to the witness myself afterward to determine whether or not the witnesses are credible. You must protect yourself from looking like a fool. Often neither the client nor the witnesses is telling the truth.

Have witnesses interviewed to determine if they will be credible and help your client. Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property.

Advise your client to be prepared and look neat. The Grateful Dead or Budweiser T-shirts should be replaced with something that looks presentable. Also advise the client to bring money to pay fines or restitution.

First-Offender Programs

Most states have deferred adjudication/continuance, conditional discharge, pretrial intervention, or other programs that are available to juveniles charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense. Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for such a program.

Letters of reference and character references are helpful in cases where the judge has wide discretion.

In a deferred adjudication the judge may direct the juvenile to perform a job, write an essay, be on unsupervised probation, or undertake other requirements. The juvenile must earn dismissal by fulfilling conditions such as restitution, community service, counseling, or school attendance.

Plea to Lesser Defense

There is no prohibition against speaking with state’s witnesses. Outside of the courtroom, I usually call out the name of the non–law enforcement state’s witnesses to determine their versions of the facts or whether they would object to my proposed resolution to avoid a lengthy trial at the end of the court session.

Clients planning to enter a guilty plea to any offense must understand what the offense is and put a factual basis on the record. You will be embarrassed if your client is pleading guilty to a drunk driving case and, when the judge asks what your client had to drink, the client insists he had only one beer. The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. Having previously obtained my client’s favorable background, I usually put on the record reasons why the judge should give the minimum penalty.

After the client pleads guilty, it is a good idea also to ask the client on the record if he or she has any questions of me or of the court.

Another major difference in juvenile cases is that the prosecutor does not make binding sentencing recommendations as part of a plea bargain. The judge has total discretion regarding the sentence imposed. If the juvenile pleads guilty or is found delinquent (guilty), the judge has the discretion on sentence: deferred adjudication, probation, incarceration, residential placement, restitution, fine, etc.

If the case goes to trial, the judge serves as the fact finder and makes all decisions, unlike adult court where those charged can have a jury trial. The trial is held before a superior court judge in the county where the juvenile resides.

Conclusion

Whether or not you have a trial or there is a plea to reduce the charge, you will wish to know you did the best you could for the client. Even if you lose at trial, you want to have been such an articulate advocate that the client walks out saying, “My attorney is great, but the judge is wrong.” Unhappy clients and their parents will post on Google, LinkedIn, Facebook, and other sites that their attorney did not work hard. Try to be innovative and prepare new arguments. Many of these juvenile clients will be your future adult clients.

Kenneth A. Vercammen

Kenneth A. Vercammen, Esq., is a trial attorney practicing in Middlesex County, New Jersey. He is the author of Wills and Estate Administration (ABA, 2015), Criminal Law Forms (ABA, 2013), and Smart Marketing for the Small Firm Lawyer (ABA, 2014).