Juvenile Justice Articles

Juveniles' Waiver of the Right to Counsel

By Robert E. Shepherd, Jr.

Robert E. Shepherd, Jr., is a professor of law at T.C. Williams School of Law, University of Richmond in Richmond, Virginia, and a contributing editor to Criminal Justice magazine. He is also former chair of the Juvenile Justice Committee of the Criminal Justice Section.

This column has consistently stressed the central importance of the right to effective counsel for young persons charged with delinquency in the juvenile or family court or those facing transfer to the adult criminal justice system. The significance of that right is even greater today with more recourse to transfer to adult courts and the more serious consequences of even a conviction for delinquency. In spite of the greater importance attached to the assistance of counsel, there has been little attention paid to the waiver of that crucial right by juveniles.

The IJA-ABA Juvenile Justice Standards articulate a comprehensive right to counsel in the volume on Standards Relating to Counsel for Private Parties, where Standard 2.3 makes clear that counsel should be provided for all juveniles in "delinquency or in need of supervision proceedings." The volume on Standards Relating to Adjudication elaborates further in Standard 1.2 by insisting that the "court should not begin adjudication proceedings unless the respondent is represented by an attorney who is present in court" and the commentary explains that this means "that the right to counsel [is] unwaivable." Standard 6.1.A. of the Standards Relating to Pretrial Proceedings is even more explicit with its insistence that "a juvenile's right to counsel may not be waived," even though other rights may be waived under certain circumstances. These standards build on the similar recommendation of the President's Commission on Law Enforcement and Administration of Justice in 1967. Other comparable documents have reiterated that the right to counsel in juvenile court should be unwaivable because of the reduced capacity of children to make intelligent, voluntary, and knowing decisions about the necessity of an attorney where their liberty is at stake.

Constitutional right to waive counsel
The United States Supreme Court has concluded that adult criminal defendants have an almost absolute right to waive counsel and proceed to defend themselves on a pro se basis once the trial judge has made the accused "aware of the dangers and disadvantages of self-representation" and the defendant elects self-representation in a voluntary, knowing, and intelligent fashion. (Faretta v. California, 422 U.S. 806, 835 (1975).) Nonetheless, a judge may appoint a lawyer as standby counsel and the defendant's right to self-representation is not violated by the attorney's intermittent participation in the trial. (McKaskle v. Wiggins, 465 U.S. 168 (1984).) The landmark decision of the Supreme Court in In re Gault, 387 U.S. 1 (1967), after mandating the right to counsel for juveniles, seems to assume a juvenile's right to waive counsel, but the Court indicated, in dictum, that waiver could only be made by both the juvenile and a parent. (Id. at 41-42.) The Juvenile Justice Standard Project concludes in the commentary to Standard 1.2 in the Standards Relating to Adjudication that Faretta can be distinguished for juveniles because the right of self-representation grew out of the Sixth Amendment while the right to counsel in Gault stemmed directly from the Due Process Clause of the Fourteenth Amendment, and the Sixth Amendment right to a jury trial was deemed inapplicable to juveniles in McKeiver v. Pennsylvania, 403 U.S. 528 (1971). (Standards Relating to Adjudication at 15-16.) Thus, the constitutional principles are not entirely settled where juvenile waivers are concerned.

State statutes and rules
Despite the almost universal insistence on an unwaivable right to counsel in the various standards, few states have incorporated such a principle in their juvenile codes or court rules. At least two states, Iowa and Texas, flatly prohibit waivers of counsel by juveniles (Iowa Code Ann. § 232.11(2) (1994)); Texas Family Code Ann. § 51.10(b) (1996)), but some other states limit the circumstances under which a waiver of counsel may occur so as to require an extensive inquiry by the court into the validity of a waiver, Virginia Supreme Court Rule 8:17 (1997), or require proof by clear and convincing evidence that the juvenile has knowingly and intelligently waived counsel and that the waiver is in the youth's best interest (New York Family Court Act § 249-a (1987)). The Minnesota rule requires that any waiver of the right to counsel must be preceded by "in-person consultation with an attorney, and counsel shall appear with the child in court and inform the court that such consultation has occurred." (Minnesota Rules of Juvenile Procedure, Rule 3.04, Subdivision 1 (1995).) Also in Minnesota, if the child elects to waive counsel, standby counsel must be appointed to assist and consult with the juvenile at all stages of the proceedings. (Minnesota Rules of Juvenile Procedure, Rule 3.02, Subdivision 1 (1995).)

Court decisions on waiver of counsel
The case law governing the waiver of counsel for trial falls generally into four distinct but occasionally overlapping categories. First, a small number of states provide that a decision to waive counsel by a juvenile is invalid unless it is informed by counsel. The leading case of State ex rel. M v. Taylor, 166 W.Va. 511, 276 S.E.2d 199 (W.Va. 1981) concluded that no waiver would be considered knowing and effective unless it was informed by the advice of counsel. The West Virginia court pointed to the unrebuttably presumptive incapacity of minors to waive their rights in other areas of the law or to make legally binding decisions and determined that it would be ironic if a significant right could be waived in a proceeding where the child's liberty is at stake. In State v. Doe, 95 N.M. 302, 621 P.2d 519 (1980), the court agreed that a juvenile could not waive the mandatory initial appointment of counsel, while it reserved the question of the youth's ability to waive the assistance of counsel during later stages of the proceedings with the advice of the lawyer appointed or retained initially.

The second group of cases permits the waiver of a lawyer, but only after consultation with a parent or guardian. In Williams v. State, 433 N.E.2d 769 (Ind. 1982), the Indiana Supreme Court pointed to a statutory requirement that a child must be provided an opportunity for "meaningful consultation" with a parent or other custodian before effectively waiving any rights guaranteed by the federal or state constitutions or any law. Similar holdings have come in court decisions in Arizona, Louisiana, and Montana. (In re Appeal in Navajo County Juvenile Action No. JV-94000086, 898 P.2d 517 (Ariz. App. 1993); State in interest of Jones, 372 So. 2d 779 (La. App. 1979); Edward C. v. Collings, 193 Mont. 426, 632 P.2d 325 (1981).) In the third category is the state of Georgia, which provides by statute that counsel must be provided for any child not represented by a parent or guardian. Case law in that state would go a step further by requiring the unwaivable right to counsel where the parents are present but have a conflict of interest with their child. (S. v. State, 134 Ga. App. 843, 216 S.E.2d 670 (1975).)

The fourth category consists of the majority of reported cases addressing the waivability of the right to counsel by juveniles, which use a "totality of the circumstances" test to determine whether such a waiver is valid. These cases assume the ability of a minor to waive the assistance of a lawyer in delinquency or other cases involving a possible loss of liberty, but focus instead on whether such a waiver was knowing and voluntary. That determination is a question of fact to be decided by the court in light of all the circumstances, including the individual characteristics of the juvenile and the nature and manner of advice given about the right to counsel. These courts frequently analogize the waiver of counsel at trial to the waiver of the right to a lawyer during police interrogation, and thus apply the same "totality of the circumstances" test. (See, e.g., McLemore v. Cubley, 569 F.2d 940 (5th Cir. 1978); Smith v. Crouse, 413 F.2d 979 (10th Cir. 1969); People v. Kitley, 59 Mich. App. 71, 228 N.W.2d 834 (1975).) In Kitley, for example, the court said that the relevant circumstances would include such factors as the juvenile's age, his or her education, prior juvenile court experience, mental state, financial situation, and the pressures or inducements that might have had an impact on the decision to waive counsel. Appellate courts are fairly insistent that the juvenile be fully informed of the right to counsel and the consequences of being tried without a lawyer before permitting waiver, even with older, admittedly competent juveniles.

Capacity to waive
The New York statute cited previously states that "a minor who is the subject of a juvenile delinquency or person in need of supervision proceeding shall be presumed to lack the requisite knowledge and maturity to waive the appointment of a law guardian." (New York Family Court Act § 249-a. (1987).) Many experts in child psychology or child development agree with this legislative statement and argue that many juveniles lack the competency and experience to make such a critical decision in any situation where their liberty is at stake. (See, e.g., Thomas Grisso, Juveniles' Waiver of Rights: Legal and Psychological Competence (1985); Thomas Grisso, Juvenile Competency to Stand Trial: Questions in an Era of Punitive Reform," 12(3) Crim. Just. 4 (Fall 1997).) Indeed, some studies have cast doubt on the capacity of juveniles to fully comprehend what a lawyer is or does, much less the importance of the assistance of counsel at all stages of the proceeding, thus making the question of whether a waiver is intelligent a hollow one. (Robert E. Shepherd, Jr. & Barbara Zaremba, Juvenile Justice: When a Disabled Juvenile Confesses to a Crime: Should It Be Admissible?, 9(4)Crim. Just. 31 (Winter 1995).) Dr. Zaremba found in a 1992 study of the ability of 115 high school students, both with and without learning disabilities, to comprehend a Miranda warning that only one of those surveyed could correctly identify what a lawyer is or does.

Back to the standards
The psychological research, and the difficulty of applying the "totality of the circumstances" test in any consistent or coherent fashion, make the definition of a bright line principle important. Also, it must be acknowledged that the relative paucity of case law is likely a reflection of the absence of counsel in waiver cases to preserve the issue of waiver for appeal or even to pursue any appellate rights. The only possible way to protect juveniles' constitutional right to the assistance of counsel is through the approach taken in the IJA-ABA Juvenile Justice Standards, in the Iowa and Texas statutes, and in the few cases that define an absolute, unwaivable right to counsel, as in West Virginia. At the very least, the approach taken by Minnesota would appear to be essential. Juvenile delinquency proceedings and transfer or certification cases place too much at stake today to allow a child to ever participate in them alone and uncounseled.

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