In 2005, the National Council of Juvenile and Family Court Judges (NCJFCJ) published the Juvenile Delinquency Guidelines to guide court improvement in handling of juvenile delinquency cases. This seminal publication outlined best practices, which could be used to help courts identify problem areas, to plan for change, and to implement improvement that was critically needed.
In 2017, NCJFCJ determined that it was necessary to revisit the Juvenile Delinquency Guidelines to ensure that this vital resource remained relevant. In the years between the original publication of the Juvenile Delinquency Guidelines and this update, the juvenile justice field had taken several leaps forward in understanding youth and responding to delinquent behavior. Changes in court practice, advances in brain science and the understanding of adolescent development as well as juvenile specific rulings from the Supreme Court were the driving forces behind this update. The NCJFCJ would like to thank the State Justice Institute for providing the funding to complete these changes.
A Publication Update Committee of national experts and judges was assembled to identify areas of the document requiring an update. It was through the efforts of this committee that the Enhanced Juvenile Justice Guidelines was completed. Without their hard work and dedication this publication would not have been possible. NCJFCJ would also like to extend our deepest appreciation to the original development committee who gave generously of their time and energy to the creation of the Juvenile Delinquency Guidelines. Finally, NCJFCJ would like to acknowledge two subject matter experts who lent their expertise to this updated publication. Gina Vincent, Ph.D. who provided expert content and feedback regarding screening and assessment of youth and Kristan N. Russell, M.A. who developed the recommendations for the treatment of juvenile sex offenders. This document is not a reflection of the current state of juvenile justice today, but of what juvenile justice practice can be in the future.
Funding for this publication report was provided by the State Justice Institute through Award #SJI-17-P-199 to the National Council of Juvenile and Family Court Judges. Points of view or opinions expressed are those of the report contributors and do not necessarily represent the official position or policies of the funder or the National Council of Juvenile and Family Court Judges.
This will only cover a section from chapter IV Detention or Initial Hearing from the Enhanced Juvenile Justice Guidelines, please download the PDF full access to the entire document.
In a juvenile justice court of excellence, counsel is appointed prior to the detention or initial hearing, and has adequate time to prepare for the hearing as well as to help the youth understand the charges and proceedings. Chapter III, Section D (3) gives several examples of how to set up such a system. The JUVENILE JUSTICE GUIDELINES recommends that the youth, parent, and counsel for the youth meet prior to the initial hearing to determine the position they will take at the hearing. This enables counsel to contact the prosecutor prior to the hearing if desired. The better the preparation prior to the hearing, the more timely and efficient the process will be.
Delays in the appointment of counsel create less effective juvenile justice court systems. Delays make it difficult for juvenile justice courts to set and hold to specific initial hearing times and create unnecessary and inefficient delays, often requiring additional hearings that could have been avoided. Delays in appointment of counsel can interact with a youth’s trauma history, and the anxiety about the unknown outcomes can seriously exacerbate the youth’s symptoms. Families who can afford private counsel do not have these barriers and rarely appear at the first juvenile justice court hearing without prior consultation with counsel. There is currently a movement toward appointing counsel for all youth regardless of income — the latest JJDPA reauthorization states that “publicly supported court-appointed legal counsel with experience representing juveniles in juvenile justice proceedings should be appointed for youth.”
If it is not possible for a youth and family to contact counsel prior to the first juvenile justice court hearing, the second preference is to provide access on the day of the first hearing with sufficient time for the youth, family, and counsel to discuss the case before entering the courtroom. In some juvenile justice courts, a staff person from the juvenile justice court or public defender’s office meets with every youth and family when they arrive at court to determine whether the youth qualifies for a public defender. If so, a public defender is available to meet with them before the hearing. The youth and parent or guardian are told to appear at court sufficiently ahead of the scheduled hearing time so that this process can be completed and the case called when scheduled. If the youth does not qualify for a public defender, a member of the private bar is called upon to meet with the youth and family, and the juvenile
justice court assesses attorney fees. To make this system work, the juvenile justice court has agreements with private counsel who regularly appear before the juvenile justice court to sign in when they are in the juvenile justice court, and to make themselves available, if possible, to pick up these cases.
When juvenile justice systems have effective management information systems, the juvenile justice court and public defender can use data to understand their caseloads and plan ahead to ensure that all youth have access to counsel and apportion adequate resources are available to enable this system to function effectively.
The JUVENILE JUSTICE GUIDELINES recommends the combination of all plea and pre- trial issues into the first hearing, whenever possible, over a separate arraignment hearing at which time counsel is appointed for two reasons.
First, it prevents the youth from going through a juvenile justice court hearing without the benefit of counsel. Second, it eliminates an additional hearing on every juvenile justice court justice petition. Eliminating the additional hearing saves significant resources because:
The first contact between families and the juvenile justice court is often the detention or initial hearing. Because this first meeting sets the stage for the family to become positively or negatively engaged with the juvenile justice court process, it is important to create an atmosphere of respect, dignity, courtesy, and cultural understanding. At this entry point, the juvenile justice court can exhibit these qualities in many ways:
In some juvenile justice courts, brochures and other explanatory materials are available in the waiting areas. In other juvenile justice courts, videotapes are played in the waiting areas that explain to youth and families their rights and what will occur in the juvenile justice courtroom. Both methods increase a family’s understanding of the process, and increase their ability to effectively address the issues in the hearing. These materials supplement the responsibility of counsel for the youth and the juvenile justice court judge to explain rights and the court process.
Who Should Be Present
The following individuals should be present at the detention or initial hearing:
If the youth is on probation or involved in services, it may not be necessary for the probation officer or other worker to be present as long as there is a system to ensure that all necessary information is available to the judge, prosecutor, and counsel, either through paper or computerized systems.
If the parent or legal custodian does not appear for the hearing or is part of the prosecution of the case, a relative or other adult with a positive relationship with the youth should be permitted to fulfill the role of supportive parent. If no other adult known to the youth is available, the court should appoint an in loco parentis to serve as a supportive adult until either the parent or a relative becomes available, or until the disposition hearing is completed (refer to Chapter 1, Section D for a more detailed explanation of this role).
Information the Juvenile Justice Court Should Have
At the start of the detention and initial hearing, the following information should be available:
Reading of the Petition and Explanation of Rights
Juvenile justice court judges must be vigilant to ensure that they do not allow the reading of the petition and explanation of rights to become a mechanical process. This can be difficult when dockets are over-crowded, multiple cases are scheduled at the same time, and the judiciary covers these process points multiple times every day. It is important to read the petition and explain it in plain language and restate in different words if necessary.
It is equally important for the judge, especially when dealing with a youth and parent for the first time, to watch for indicators that they may not understand what is happening. When verbal or nonverbal warning signs of a lack of understanding appear, it is important to slow the process. The judge must carefully assess whether there are issues of competency to stand trial that need to be addressed and simplify language to assist the youth and parents to understand. Competency to stand trial issues are discussed in the next section.
Prior to the hearing, the youth and family should have been served with a copy of the petition and affidavit and given a written explanation of their rights. Both items should be written in simple language designed to assist understanding. When qualified counsel represent youth and have prepared before the hearing, counsel will have also carefully reviewed the petition and rights with the youth and family. Counsel will have significant information from these interactions to assist in identifying whether there are questions of competency to stand trial that need to be addressed.
Once the petition has been read, and the juvenile justice court is assured that the youth and parent or guardian understand the allegations, due process rights should then be reviewed. These rights include the right to counsel, the right to have parents present, the right to a trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. The burden of proof and possible consequences if adjudicated of the offense should also be reviewed. Depending on state statutes, other rights or issues may need to be reviewed. If no counsel is involved, the judge will need to take extra care to ensure the youth and parents understand their rights. The youth and parent or guardian should sign a statement that they understand their rights, and if the youth, in consultation with the parent or guardian and counsel, chooses to waive any right, the youth, parent or guardian, and counsel should sign a written waiver. If the prosecutor has requested that the juvenile justice court waive jurisdiction and transfer the case to the criminal court, the juvenile justice court should explain the process it will use to rule on the motion, and the potential consequences if the court grants the motion.
When qualified counsel is involved, the juvenile justice court can be confident that when the youth and parent or guardian respond that they understand the allegations, understand their rights, and choose to waive a right or enter a plea, that they are making knowing, intelligent, and voluntary decisions.
Questions of Competency to Stand Trial
Legal competency is defined as a threshold requirement, imposed by society, for an individual to retain decision-making power in a particular activity or set of activities. A judge determines competency. There are many different aspects of legal competency, and an individual may be competent for one purpose but not for another. Decisional capacity is defined as the mental ability to understand the nature and effects of one’s acts and refers to a medical-legal construct that is determined by a clinician. Although technically these terms are distinct concepts, they are clearly related and often are used interchangeably.
A clinician who has specialized training and experience in forensic evaluation of juveniles must assess the decisional capacity of a youth with regard to the youth’s ability to understand the nature of the juvenile justice court proceedings and to assist counsel with his or her defense. These are the primary issues that determine whether or not the youth is competent to stand trial. It is important that the clinician’s report describes any relevant negative impact on the youth’s decisional capacity caused by situational factors that can be remedied or accommodated such as the individual’s cultural background, primary language, communication style, physical or sensory impairments, motivation, attentiveness, promotional factors. A youth may be rendered functionally incompetent to stand trial because the manner in which the juvenile justice court conducts its proceedings is not conducive to the youth being able to understand. Youth may also be rendered incompetent to stand trial because of their age- related immaturity, mental illness, trauma, or developmental delays or disabilities. Using the clinician’s assessment of the decisional capacity of the youth, the juvenile justice court judge determines whether the youth is competent to stand trial.
A juvenile justice court judge and counsel generally assume a youth is competent to stand trial. However, when counsel, prosecutor, or the juvenile justice court judge observe indicators that competency to stand trial may be an issue, each is obligated to pursue the question further. Judges may want to ask as a matter of course if there is a reason to request a clinical assessment. A juvenile’s competence to stand trial should be explored through additional questioning during the detention or initial hearing in order to determine whether or not a clinical assessment is needed, when the juvenile meets any of these criteria:
Counsel for the youth is obligated to request a clinical assessment of decisional capacity if the youth’s competency to stand trial is in question. The juvenile justice court judge is independently obligated to order an assessment if the judge’s observations raise competency issues, even if counsel does not request an assessment. If an assessment is needed, the juvenile justice court judge should order the assessment, specify the person responsible to arrange the assessment, and continue the detention or initial hearing for as short a period of time as possible for the assessment and report to be completed. If the youth is in detention, the need for continued detention must be addressed.
If the clinical assessment determines that the youth has significant decisional capacity impairments, the clinician should describe the areas of impairment and recommend whether hospitalization, treatment, or service interventions will enable the youth to become competent. If the juvenile justice court judge determines that the youth is not competent to stand trial, the judge should either:
Probable Cause and Entering a Plea
Except when the prosecutor has requested a transfer to criminal court, a separate hearing to determine probable cause is often unnecessary. If a motion for transfer has been filed, the juvenile justice court must set the case for a separate probable cause hearing. If a motion to transfer has not been filed, and if there are any issues of probable cause, counsel should raise them at this time. Unless counsel specifically requests a separate hearing to determine probable cause, or unless the prosecutor has filed a motion to transfer, the juvenile justice court should move to the plea phase.
Consultation between the youth, parent or guardian, and counsel regarding whether the youth wishes to admit or deny the charge should have occurred before entering the courtroom. The juvenile justice court judge should again read the allegations against the youth and ask the youth’s counsel whether the youth admits or denies the allegations. If there are multiple counts within a petition or multiple petitions, each should be read separately, and the youth should be asked to respond individually to each allegation.
If the Youth Admits the Allegation
If the youth, through counsel, has decided to admit all counts of all petitions, the youth should complete and sign a plea petition that, in addition to listing rights, has a statement of admission and describes what occurred. The youth should recite the facts of the offense, and the court should accept the admission and adjudicate the youth. The juvenile justice court has several options regarding how to proceed depending on the specific circumstances of the case.
If the Allegations Are Denied or if the Prosecutor Has Filed a Motion To Waive Juvenile Justice Court Jurisdiction and Transfer the Case to Criminal Court
If any of the allegations of the petition are denied, and the prosecutor has not filed a motion to waive and transfer, the juvenile justice court judge, parties, and key participants should discuss whether dispute resolution alternatives are appropriate as opposed to setting the case for trial. If a dispute resolution alternative is appropriate, the parties should agree on the specifics of the dispute resolution alternative, and the juvenile justice court judge should continue the hearing for the shortest time necessary to complete the dispute resolution alternative. At the continued hearing, parties will either present a proposed resolution or inform the juvenile justice court that resolution has not been possible. If there is a proposed resolution, the juvenile justice court must determine whether to approve the proposal and make it a court order. If the juvenile justice court approves the proposal, a review hearing should be set at a time appropriate to the details of the court approved resolution, to ensure that all parties have complied with the resolution that has become a juvenile justice court order. See Chapter 9: Post-Disposition Review for more information on the next steps in the juvenile justice court process.
If dispute resolution alternatives are not appropriate, have failed to produce an agreed proposal, or have produced a proposal but the juvenile justice court judge does not approve it, the case should be set for trial on the docket of the youth’s assigned judge. If the prosecutor has filed a motion to waive juvenile justice court jurisdiction and transfer the case to criminal court, the case should be set for a probable cause hearing.
Regardless of whether the case is set for trial or set for probable cause hearing on a motion to waive and transfer, similar issues must now be addressed. Since counsel and prosecutor are present, pre-trial or pre-probable cause hearing issues can be identified and resolved. These issues include:
Discovery delays and disputes are a common cause for unnecessary continuances and slow resolution of juvenile justice court cases. Juvenile justice courts, by statute and court rule, should specifically define obligations with regard to discovery. As a result, only under the most unusual circumstances should it be necessary for the court to be involved in discovery disputes. The presiding judge over the juvenile justice court should make it clear to all system participants that, within the juvenile justice court’s discovery rules, disputes and delays will not be tolerated.
The juvenile justice court judge should question both attorneys about the number of witnesses to be called and determine the amount of time needed for the trial or probable cause hearing on a waiver and transfer motion. If the case is complex and there are multiple issues that will need to be addressed at another date, the juvenile justice court should simultaneously set two hearings – a pre-trial hearing and the trial or probable cause hearing. The pre-trial hearing should be set within a timeframe that allows the trial or probable cause hearing to be held as soon as possible but no later than 10 business days if the youth is detained and no later than 20 business days if the youth is not detained. It is important that the juvenile justice court judge or judicial officer ensures that a sufficient amount of consecutive trial time is set aside on the juvenile justice court’s docket so that it will not be necessary to continue the trial in progress. Non-consecutive trial dates are inefficient and take more total time than if the trial is continuous. They unnecessarily require witnesses, victims, and families to come to court more times than is necessary. They delay timely juvenile justice court decisions.
If the youth is detained, a determination must be made regarding whether there is reliable information to support the youth’s need to remain detained in secure detention or whether the is receiving or may need services that could be funded through Title IV-E so that the proper youth can be released with or without restrictions.
It is important to identify whether the youth eligibility determinations can be made.
In order to ensure that all issues have been covered at the detention or initial hearing, the judge should know the answers to all of the following questions before concluding the hearing:
If the hearing has moved into the disposition phase, the juvenile justice court must know additional information as outlined in Chapter 7: The Disposition Hearing.
The juvenile justice court’s written findings and orders should be stated in language understandable by the parties and with enough detail to support the court’s actions. The juvenile justice court’s findings and orders should be set out in writing and made available to all legal parties and key participants at the conclusion of the hearing. Key participants include anyone who is essential to the successful implementation of the court’s orders such as the parent, legal custodian, child protection worker, in loco parentis, and probation officer. The summary should include:
To accurately monitor and report on the use of detention and help improve court performance and youth outcomes, it is important to routinely collect data regarding the detention/initial hearing. This includes the dates and outcomes of important events including the detention hearing, detention admission and release, as well as any detention review hearing dates. Additional data collection should include presence and type of defense counsel at the detention/initial hearing and the date and outcome of any competency to stand trial or detention risk assessments. Some of these elements may require close collaboration and data sharing between the juvenile justice court and the detention facility.
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