Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 1
Robert E. Shepherd, Jr.
Juvenile Court Motions Practice
In the Spring 1988 issue of Criminal Justice, this space featured a column on "Pretrial Strategy and Motion Practice" urging the importance of motions for lawyers practicing in juvenile and family courts, especially since "the post- Gault juvenile court is becoming much more similar to its adult counterpart." However, about seven years later, the ABA Criminal Justice Section’s Juvenile Justice Center observed in A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings that few lawyers practicing in delinquency cases engaged in much of a formal motions practice. ( Id. at 32–34). This failure was in spite of the fact that:
Pretrial motions may be crucial to defense efforts, and there are benefits to filing motions even when they are denied. The prosecution’s written responses and testimony given at hearings on motions may provide valuable discovery material. "Locking" witnesses into their pretrial testimony may be helpful in preparing for trials. Filing clearly meritorious pretrial motions can also strengthen clients’ positions for negotiating favorable dispositions.
( Id. at 33.)
Recent assessments of juvenile defense services conducted in several states by the Section’s Juvenile Justice Center in Washington, D.C., in collaboration with other advocacy groups indicate that there has been little change since the observations of the 1995 A Call for Justice report. Thus, this column revisits this important issue with the benefit of the added resources provided by the ABA’s Juvenile Justice Center.
Juvenile Defender Delinquency Notebook
In September 2000, the Juvenile Justice Center of the Criminal Justice Section of the American Bar Association published the Juvenile Defender Delinquency Notebook: A Case Preparation System for New Juvenile Defenders, edited by Barbara Butterworth, Will Rhee, and Mary Ann Scali. It is an outstanding resource for lawyers practicing in juvenile courts. One emphasis in the notebook is motion practice, and there are a number of forms provided for effective pretrial representation of juveniles. A pretrial motion worksheet from the notebook is available in PDF format. Forms are provided for many of the motions referenced, and the notebook is available in text and on diskette.
General pre-adjudicatory motion practice
The absence of juries in juvenile or family court matters makes it difficult to avoid judicial predisposition, and can create a real dilemma for the attorney. Using traditional motions drawn from criminal practice can minimize the effect of harmful evidence on the trial judge, especially where motions are heard by a different judge in the jurisdiction, and such motions can provide grist for the appellate mill. Among the motions that may be filed are the following:
Discovery. Some informal discovery can be secured during intake or at a detention hearing. In the case of a juvenile for whom transfer to the adult court is sought, the transfer or certification hearing may be a fruitful source of information on the prosecution’s case. Similarly, other pretrial motions may serve a discovery role—a motion to suppress evidence, a motion for a psychiatric examination of a victim or of the juvenile, or a motion for disclosure of an informant’s identity. More traditional discovery devices such as access to the court file, including probation reports; access to pretrial psychiatric, psychological, or medical reports concerning the client or other parties; statements made by the client or coparticipants, whether written or oral; names and addresses of witnesses; any exculpatory evidence in the custody of the prosecution; photographs or physical evidence in the hands of the opponent; reports by scientific or other experts; social work or other public agency records; your client’s prior record and the prior records of any witnesses. A formal, written motion for discovery is a good idea even if some of the desired information can be secured informally—to preserve the record and provide a basis for appeal. If formal discovery is permitted by statute or court rule, the attorney should be sure to comply with any time or procedural limitations.
Motions to suppress. A motion to suppress illegally obtained evidence may be used where the prosecution plans on using confessions and other inculpatory statements, identification, testimony, or physical evidence obtained through an illegal search and seizure.
Motions in limine. A motion to limit the scope of testimony at trial, so as to exclude evidence that is potentially damaging and may not be relevant to the pending charges, may be especially useful. This may include evidence of other misconduct or other similar testimony or evidence whose prejudicial nature outweighs the probative value.
Motions for severance. Juveniles frequently commit offenses in groups. In these situations, culpability can vary widely and charges can end up being quite different. If you are representing a younger codefendant—one who was simply a lookout for an armed robbery, or one who has a single charge pending while others have multiple charges—you should move to sever the trials. This motion, like most others, is directed to the discretion of the judge, but your chances of success will be improved if the juveniles have inconsistent defenses, or evidence inadmissible against your client is admissible against a codefendant, or the right to cross-examination is somewhat limited.
Motion for a speedy trial. This motion is especially important and may be more successful where the juvenile is in detention and the trial does not occur until after the time limits set in a statute or court rule have passed. Unfortunately, many of these provisions recognize only a single sanction—release from custody. However, the basic constitutional guarantee to a speedy trial will apply nonetheless. ( See Jeffrey A. Butts & Gregory J. Halemba, Waiting for Justice: Moving Young Offenders Through the Juvenile Court Process (National Center for Juvenile Justice (1996)); Jeffrey Butts, Speedy Trial in the Juvenile Court, 23 Am. Crim. L. R. 515 (1996); Robert Shepherd, Speedy Trials for Juveniles, 15 (No. 4) Crim. Just. 53 (Winter 2000).)
Motions concerning the petition and summons. Although amendment is allowed rather liberally, defects in the petition or defects in the notice afforded the juvenile or parents should be addressed by a pretrial motion. A motion for a bill of particulars may be especially appropriate where the petition is unclear or sketchy. Similarly, a demurrer to the petition or a motion to dismiss may be called for when the statute underlying the charge is unconstitutional or deficient in some other respect. The failure to summon a parent may constitute a jurisdictional defect. ( Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999).)
Motion for change of venue. This motion may be of little value because the prejudicial effects of pretrial publicity are minimized in juvenile court by the absence of a jury and the existence of confidentiality sanctions, although the latter are being significantly eroded in many jurisdictions. However, there may be situations where a different site for trial may facilitate the participation of witnesses. Some states permit a shift in venue after adjudication to the locality where the juvenile resides for disposition.
Motion for continuance. Continuances tend to be liberally granted when premised on the need for additional time to prepare a defense or a similar contention related to the ability of counsel to provide an effective defense. If the juvenile is detained, however, such a motion should be used very sparingly so as to limit the time the youth is locked up.
Motion for appointed expert or investigator. Juvenile matters may be every bit as complex as criminal court proceedings, and the need for an expert or an investigator may be no less great. The defense attorney should not hesitate to make such a motion where an additional scientific test is desired, a handwriting exemplar examined, or an investigator employed in a particularly serious or complex case. ( Cf. Ake v. Oklahoma, 105 S. Ct. 1087 (1985).) The scope of Ake is continually tested in the courts. Although many arguments have been made that Ake only applies to the provision of expert psychiatric assistance, it is generally recognized that Ake extends to any type of expert assistance. The fundamental question in seeking to apply Ake is the critical nature of expert assistance in providing a fair defense.
Motion to dismiss for double jeopardy. The Supreme Court held in Breed v. Jones, 421 U.S. 519 (1975), that the constitutional protection against being placed twice in jeopardy applies to juvenile proceedings. Jeopardy attaches once trial is begun and the commencement of a delinquency trial will bar a later decision to seek transfer of the case to an adult court. Although dismissal or acquittal by a master or referee may not bar subsequent adjudication by the judge in the same case, Swisher v. Brady, 438 U.S. 204 (1978), some states hold that such a procedure violates due process. ( In re Matter of Pima County, 129 Ariz. 371, 631 P.2d 526 (1981).) In United States v. J. Smith, 851 F.2d 706 (4th Cir. 1988), the court of appeals ruled that commencement of juvenile delinquency proceedings barred the transfer to adult court and initiation of charges there.
In United States v. Juvenile Female, 869 F.2d 458 (9th Cir. 1989), a Native American juvenile who, while driving under the influence of alcohol, was in an accident in which the passenger of another car was killed, was tried in tribal court where she pled guilty to the tribal charges, and was ordered to participate in a diversion program and was sentenced to probation. The government later filed charges in district court against the juvenile for involuntary manslaughter. The juvenile’s motion to dismiss for double jeopardy based on the prior adjudication in tribal court was denied. In rejecting her argument that these second charges violated double jeopardy, the court ruled that because a tribe and the federal government are separate sovereigns, each with independent powers to enact and enforce laws, double jeopardy did not bar federal prosecution. ( Cf. United States v. Wheeler, 435 U.S. 313 (1978).) In addition, the juvenile argued that the dual sovereignty doctrine should not apply to juveniles because of the unique rehabilitative emphasis of the juvenile court system, but that argument was rejected by the court.
Motion to recuse judge. Such a motion may be appropriate when the judge has participated in some pretrial proceeding in which evidence is adduced that would not be admissible at trial, which might even include access to a probation report or social history prior to the determination of guilt or innocence. A motion to recuse would, of course, be highly appropriate when judges have a personal interest in the case and refuse to disqualify themselves. ( See Martin Guggenheim, Recusal of Judges in Juvenile Bench Trials, 2 (No. 1) Crim. Just. 26 (Spring 1987).)
Physical or mental examinations. Many juvenile codes allow for a physical or mental examination of the accused and others at state expense pursuant to a motion or by the court sua sponte. Such an examination can be extremely useful, even where insanity is not an issue, in order to buttress an argument that a confession or other waiver of rights was involuntary or unknowing, or to provide evidence for a dispositional hearing. It is often desirable to have a complete diagnostic workup done that would include a physical examination, a neurological examination, and psychological testing. Many urban areas have specialized clinics or programs on adolescent medicine equipped to perform such a comprehensive examination.
Preliminary hearing or detention hearing
Some states provide for a preliminary hearing, arraignment, or initial appearance before the court for the purpose of being advised of the nature of the proceeding and for being informed of the rights to counsel, to the privilege against self-incrimination, to the right to secure witnesses, and other rights. Parents should generally be present at such a hearing, and in bilingual or multilingual communities, the hearing should be translated for the participants. If the juvenile appears to be mentally retarded, emotionally disturbed, learning disabled, or otherwise handicapped, particular care must be taken to ensure he or she understands the proceedings. In some states, the hearing must also be used to determine the presence of a prima facie case or the existence of probable cause, especially if the juvenile is in detention; this hearing can be an excellent vehicle for informal discovery. Most states require a detention hearing to determine the appropriateness of detaining the juvenile, or to justify continued detention. Such a hearing can be a fruitful source of critical information, especially since much of the evidence required to deprive juveniles of their liberty is the same evidence that will be presented subsequently to sustain the petition and prove the charge.
Juvenile courts are now much closer to the due process model exemplified by adult criminal proceedings. However, it is frequently the attorney for the juvenile who must secure the guarantees of due process. Pretrial motion practice and the zealous and informed assistance of counsel in pre-adjudicatory proceedings, can help protect the rights of the juvenile and preserve the fairness of the entire juvenile justice system.
Robert E. Shepherd, Jr., is an emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and a former chair of the Section’s Juvenile Justice Committee.