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154 Cards in this Set
- Front
- Back
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What are the ages that are significant in the Juvenile Justice System?
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Age refers to the time that the Juvenile is committed and not to how old they are when they are found or furing the proceedings.
10- Youngest age at which crime was committed that you can be admitted into the juvenile justice system 14 and 15 - youngest that you can be CERTIFIED AS AN ADULT (never for misdemeanors) 14- a 14 yr old can only be certified as an adult for serious felonies (capital murder, first degree felonies and aggr. controlled substance felonies) 15- other felonies committed at 15 may be eligible for adult certification |
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Why is age 17 significant?
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This is the maximum age for being in the juvenile jsutice system. Offense must be committed before 17 b day.
J.Court has jurisdiction as long as offense committed before 17 and petition filed before 18. offense after 17, Criminal Court and not the juvenile court has jurisdiction. Even if the D is in the juvenile system. (TYC, probation, etc) and while 17 commits another offense, the cromina l court has jurisdiciotn of=ver the new offense. |
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What is the significance of being 18?
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It is the end of the juvenile court's jurisdiciton. Petition must be filed an adjudication hearing must have occurred and completeted by 18.
with some Exceptions: 1. If paperwork is filed before the 18th B day, then court retains jurisdiction 2. If a case is appealed and is remanded after the D is 18 then J court retains Jursd. 3. IF the motion was filed before 18 and the juvenile is in a proceeding and the proceeding (adjudication, dispostion, motion to modify, motion to transfer) the court will still retain jusrisdiciton if the court finds that the prosecutor exercised DUE DILLEGENCE. |
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Which county court is a juvenile court?
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Typically, the Juvenile Court is a criminal District Court (so it can hear felony & misdemeanor cases) – although juvenile courts can be a constitutional county court. The Juvenile Board will designate which court is the Juvenile Court.
Each county will create a juvenile board by legislation to govern the juvenile justice department in the county. The board acts like a board of directors in charge of managing local policy for the administration of juvenile justice. Typically the board is composed of local judges. |
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What is the significane of age 19?
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It is the maximum age a juvenile can be kept in TYC.
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Exceptions to JC jurisdiciton
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Perjury
Traffic Offenses Alchohol offenses Fineable only offenses - but if you have two prior offenses, then mandatory transfer to the JC. |
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What is a CHINS offense
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a CHINS offense is an offense that would not be considered a crime if the person who committed it was an adult.
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what is delinquent conduct?
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Conduct that if committed by an adult would have been criminal,. It includes both misdemeanors and felonies.
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What is the process like in the JJ system
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1. Multiple ways to start off case: arrest, catch and release
2. Detention hearing/arraignment • No bond! 3. Case goes to a probation department and they screen the case • Kid could go into the system or not (even if it gets filed) • However, kid could also get sent home w/ just community service Case is filed If probation officer decides the case is bad enough, then they send the case to the prosecutor 4. Prosecutor has options: • Defer • Probation (either in or out of home) • TYC • Plea out and sentencing |
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Searches and Sezures
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always start at the top:
Consensual --no W or PC reqd - always reasonable if not coerced Terry Frisk --brief stop to confirm or deny RS --only requires RS --scope limited to weapons Search Incident to Arrest --PC - at least 50% liellihood that evidence wil be found. based on facts --not just a hunch or RS |
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Juvenile Consensual Searches
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Whether a search was consensual for adults depends on whether the the adult felt that he was free to leave or had a right to refuse.
Because Juveniles are more prone to be more frightened of authority there is a higher standard of voluntarieness that needs to be met. There must be CLEAR AND CONVINCING EVIDENCE taht the search was consensual |
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can a third party give consent to search a child's room?
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Third party consent is valid if the person consenting did so voluntarily and had possession and control over the area to be searched either individually or jointly with the target of the search. Jacobs v state
There has not been a case yet where the police have asked the child if they can search, child says no, but parent says yet. Vik thinks that the kids won’t win if they say no and the parents say yes. |
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School Searches
Can a school official search a student's locker based on a tip that he has a gun? |
Yes.
General Rule: probable cause is not necessary for a search at school - RS will suffice. The legality of the search will be based on a two prong analysis: 1. was the action justified at its inception? -- court will look at the reported violation and see if the search fit the accusation (weapons and drugs more liley to need a search) 2. The EXTENT of the search was reasonabley releated. This is a scope issue. ex. car, locker, was not in scope of a truancy violation. |
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What are the types of school searches that are allowed and which kind are not allowed?
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Locker Searches:
o Always allowed o Reasoning: students don’t have a reasonable expectation of privacy in their lockers • Dog sniff o Always allowed o Reasoning: no expectation of privacy in the air around you • Anonymous Tipster (unnamed tipster, we don’t know anything about their identity) o This is shaky ground, probably need something more than evidence that is obvious and evident/ readily observable to be sufficient to corroborate the tip Strip Searches o Bottom line: strip searches have never been upheld • Plain View Searches o As long as officers have a right to be standing where they are, then if they see something in plain view it is automatically reasonable suspicion |
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What is unique about drug testing?
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o Both a search and seizure
o In order to test certain individuals, there must be individualized reasonable suspicion as to that person o EXCEPTION: random drug testing and mandatory drug testing • Allowable as random or mandatory for everyone participating in athletics and extracurricular activities as long as whatever system the school puts in place is followed. Three prong test • 1. Did they reasonably infringe upon the student athlete’s expectation of privacy? • 2. Was the procedure used for the search reasonable? • 3. Most important factor- did the school district have a legitimate governmental interest to protect? o Court says that students who use drugs and play sports are at a higher risk of injury and the government wants to protect students |
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When can a juvenile can be seized?
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Directive to Apprehend
o A court issues an order in writing to pick up a child • Violations of Probation o Probation officer has the authority to pick up a child if they are violating their probation • TYC escapees or parolees that violate conditions • Arrest o Adults and children can both be arrested for: • Offenses committed in the officer’s presence (don’t need a warrant) • If the suspect is fleeing o Children can also be arrested for CHINS offenses as long as there is probable cause |
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What happens after seizure?
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Officer discretion. What can the officer do?
• The officer has several options: o First offender program: • Officer can put child in this program and they will just have to do some stuff like take classes • The offense will never even go on the record or be filed • This is an informal disposition of the case o Catch and release • The officer takes the child home but still files the report • Sometimes he officer doesn’t take them home and instead takes them back to school o Medical facility • If the child needs immediate medical attention o Adult Facility • These facilities can only be used for temporary holding for a maximum of 6 hours • This usually only happens in larger counties (area wise, not population wise) when the officer doesn’t want to drive the juvenile all the way to the processing facility at the other end of the county at that moment o Take them straight to the juvenile detention center o Take them into non-secure custody- • They sit in the lobby of the police station until someone comes and gets them |
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Arrest and Intake - now we have decided to deain the child, what must happen?
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At this point, the child must be taken to the juvenile detention facility. Intake procudure is followed. Intake is handles by a probation officer.
The probation officer must anser two questions to deterimine whether the juvenile will proceed within the juvenile court system. 1. Is this a child? they must make sure they have jurisdiciton by figuring out the date of the offense. 2. is there probable cause? ** if it is found that the offender is a juvenile and there is probable cause, then the juvenile justice system cannot close the door on the offender. They must take jurisdiction. |
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How does the PC determination made and how is this differrent from the adult world?
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The detemination of probable cause is made by a prbation officer at intake.
They usually get information from the child and the police report. However, they are not allowed to ask the child specific questions about the offense becasue it may violate the offender's 5th ammendment rights This is very different from the adult world, because in the adult world, only a nuetral and detached magistrate can determine if there is probable cause. |
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What options does the probation officer have at intake?
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1. Send the case to the prosecutor and detain the child
--All cases that meet the following requirements must be referred to the prosecutor for review: • 1. All felonies • 2. All misdemeanors involving “violence to a person” 3. All misdemeanors involving “the use or possession of a firearm, illegal knife, or club or prohibited weapon” 2. Discretionary Referral The probation officer can also make discretionary referrals • They should do these especially for situations which seem difficult or particularly sensitive to the prosecutor for situations that do not meet the statutory requirement for review |
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Are there ohter options the Probation officer has withou sending the child to the prosecutor?
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2. Catch and Release
- Call the parents to pick up the child -Case never gets filed o 3. Offer deferred prosecution o 4. Supervisory Caution |
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What about in firearms cases?
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Officers do not have discretion to in firearms cases.
-In these cases, Judge is the only person who can release the child -The officer cannot release them -The probation officer cannot even release them or even recommend release |
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Once the case is referred to the prosecutor (either mandatorily or by discretion) what options does the prosecutor have?
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Prosecutor can do several things as well:
1. Catch and release: let the child go and dismiss all charges if the prosecutor decides not to dismiss, he can: 2. Offer deferred prosecution 3. Supervisory caution • This is even less than a deferral, it’s pretty much a warning. Child is sent to a social agency 4.Lastly, he can choose to file the case • **Remember that the prosecutor cannot release on a firearms offense- only the judge can |
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What is deferred prosecution?
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Deferred prosecution is a contract between the prosecutor and the defendant.
Deffered prosecution says that the prosecutor agrees not to proseute the defendant as long as he agrees to abide by probation --max probation is 6 months --prosecutor can add reasonable terms and conditions NO ATTY REQ'D Why does it rock? Because even if the child fails probation, it is not an admission of guilt. you still get to try the case. IT IS NOT DEFERRED ADJUDICATION. Caution: the prosecutor can abuse power by offering kids deferred on cases that they can't make. |
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What happens if the prosecutor decides to fiel the case?
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He must :
1. have a probable cause hearing within 48 hours by a neutral and detached magistrate --At this hearing, the judge (neutral and detached magistrate) determines if there is probable cause and if the kid should remain detained --If the child is detained and there is probable cause, a defense attorney will be appointed; however this initial finding of probable cause is usually done w/out an attorney --If the child is detained more than 48 hours w/out a hearing then they can file a writ of habeas corpus --Also, once an atty is appointed, the kid can ask for a new hearing right away 2. Must file the case before the SOL runs on the offense and before the child turns 18 |
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What if the judge determines that there is PC but that the child does not need to be detained?
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If the child is not detained, the prosecutor’s time limits for filing are:
o 30 days for a capital felony, aggravated controlled substance felony (large amounts of drugs), or a first degree felony o 15 days for any other offense ---This is pretty hard b/c the police reports don’t come in for like a week • If a case is not timely filed, then it is dismissed |
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what kind of discretion does the prosecutor have with regard to filing cases?
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Prosecutor can file even if there is no original finding of probable cause in intake
Prosecutor’s discretion on when or when not to file • Except in limited circumstances, prosecutor is not required to go before a grand jury to file a petition o However he has the option to o Grand jury will look for probable cause • If the prosecutor doesn’t go to the grand jury, he just files a sworn statement |
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Detention Hearings
What is it? |
What is the detention hearing?
Detention Hearings o The initial finding of probable cause o And o if the child should be released or detained (kind of like an adult bail bond hearing) o It is the probation/intake officer that requests the hearing |
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When does the detention hearing occur?
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Within 48 hours of when the child is picked up (and every 10 days unless waived).
HOWEVER, ACCORDING TO GURTEIN and subsequently McLaughlin, A FINDING OF PC BY A NUETRAL AND DETACHED MAGISTRATE MUST BE MADE WITHIN 48 HOURS if the child is not released from detention, INCLUDING HOLIDAYS AND WEEKENDS - but a judge can even do this over the phonce from the golf course. Special situations: If the child is picked up on a Friday or Saturday, they must have a hearing Monday Also if there is a holiday, it is the next working day Therefore, even though in some instances, the detention hearing may not be held technically within 48 hours, the finding of PC by a nuetral and detached magistrate must be. But it can be made based even on oral presentations and may be made over the phone. |
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Does the detention hearing have to happen for all conduct within 48 hours?
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No. The 48 hour rule is only for delinquent conduct offenses.
If a child has been picked up for a status offense, the hearing must be held within 24 hours, no excuses. |
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Does a parent have to be notified before a detention hearing?
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NO.
The law says that a parent must be notified "promptly" that their child has been initially detained This can either be writtten or oral- jsut a notification that the child has been picked up. HOWEVER, a parent is not required for an intial detention hearing. |
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Does an atty have to be present at the detention hearing?
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No, neither an atty nor a parent is required to be at the initial detention hearing.
If no one is there to represent the child, the judge will appoint a guardian ad litem. If the child is to be released, he or she will be released to the guardian ad litem. If a hearing is held without counsel and the jude determines that the child needs to be detained, the court will appoint an atty and that atty can request a detention hearing de novo as soon as possible. |
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What happens at the detention hearing?
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At detention hearings a determination of probable cause is made and it is determined whether or not a child needs to remain in custody.
THis is the 3rd! finding of PC - (1st, arresting officer, 2nd at intake by Prob officer) but this is the consitutional one because becasue it is done by a nuetral and detached magistrate |
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How is PC determined?
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PC can be determined by a wide variety of ways. IT can come from statements of the prosecutor, arrestin offficer, probation officer, witnesses -- THe rules of evidence do not apply at a detention hearing, thereofore there is no hearsay.
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What if a juvenile admits to the crime in a detention hearing?
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Texas Family Code specifically states that nothing a juvenile says in the hearing can be used against them in court.
• Urge your child not to testify about the offense in the hearing because: o 1. Prosecutor discretion- you will have a hard time convincing the prosecutor the kid didn’t do it if he did to testify about the offense in the o 2. You will have a biased judge o 3. You don’t know what the kid will say Probable cause is rarely not ever going to be found |
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How is the release deterimination made?
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Whether or not to release
There is a presumption to release How does a prosecutor overcome the presumption of release? He has to prove one of these factors: • 1. He is likely to abscond or be removed from the county (jurisdiction of the court) • 2. No suitable supervision, care, or protection at home • 3. No parent, guardian, custodian, or other person able to return him to the court when required; • 4. He may be dangerous to himself or threaten the safety of the public if released; or 5. Has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released. |
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Does the kid have to go through a detention hearing?
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Initial detention hearing is non-waivable
• However, because detention hearings are supposed to be held every 10 days that the child is in custody, the subsequent detention hearings can be waived individually o This is good, to keep the case before the court so people don’t forget about the kid! • Detention hearings can be held earlier than 10 days by request, and there are some informal ways that attys can get their kid out- like if they have dispositive evidence that says they didn’t do it and the prosecutor asks the judge just to let the kid out before the 10 days |
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What happens if the kid is detained without a finding of PC for more than 48 hours.
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• If the kid is detained or held and there isn’t probable cause
o Kid can file a writ of habeas corpus then the kid is released --the case is not dismissed • The prosecutor doesn’t want to hold a kid w/out probable cause b/c that is illegal and then they could get sued or the county could get sued o So they want to be requesting the hearing every 10 days too |
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Juvenile Detention Centers -
where can a child be kept? |
Kids must be kept in the juvenile detention center of the county
• However, if there is not one, certain conditions must be met in the adult facility to keep the kid there o Kids must be separated by “sight and sound” from adults • If the kid is kept in a place not authorized, then evidence can be excluded and stuff |
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Pre trial:
How much notice must the juvenile be given about the adjudication hearing? |
Two Day Rule
o Kid must be served personally with notice of an adjudication or transfer hearing within two days of the hearing o What it doesn’t apply to- (or might not apply to) ---Modifications Hearings (motion to modify their probation b/c they have been alleged to violate it) • Statute simply requires “reasonable notice of a hearing to modify disposition shall be given to all parties” • Be safe: notify w/in 2 days --Disposition hearings (hearings where you say what you do with the kid after you find them guilty in the adjudication hearing) • No notice is required separate from the petition for adjudication |
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Who can waive notice of the adjudication hearing?
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only the chld. it is his right and he can waive it.
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How much notice must an atty be given?
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10 day Rule ,
o The attorney must get 10 days to prepare for the hearing o Time starts when all three happen: 1. Attorney has notice of the hearing date and the contents of the petition 2. Attorney has been named 3. Petition must be filed with the juvenile court |
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Who's right is the 10 day rule?
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It is the atty's right and only he can waive it, but also if he hasn't been given 10 days and doesn't say anyting and is not prepared, he will waive it. HE MUST OBJECT.
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Any other time rules you aren't sure about?
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Also, transfer and adjudication hearings must be set w/in 10 working days
o What the court has read this to mean is that there is a date set w/in 10 days, not that the hearing is actually held after the 10 days • 45, 15 day rules- longer times for more serious crimes? |
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Does the juvenile have a right to a speedy trial?
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Speedy trial in TX:
o There is no speedy trial in the TX constitution o We have to follow Federal constitution o There are four factors in the case the Feds use to determine if the trial is speedy- and there is no case so far that has ever been thrown out for a violation of speedy trial o Four factor test is: 1. Length of delay 2. Reason for the delay 3. The defendant’s assertion of his right to a speedy trial; and 4. The prejudice to the defendant from the delay |
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What are the rules of discovery in juvenile cases?
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Discovery in Juvenile Cases
o Criminal discovery rules apply o Civil discovery is gamesmanship- it is about hiding the truth or shaping the truth in a way that gets you the right answer, or how to answer the question without really asking the question o Criminal discovery- everyone knows what everyone else has. The idea is that the defense gets to know almost everything the prosecutor has. |
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What is the role of a defense atty?
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Explaining what is going on to the Juvenile
How the system works, what’s going on in the hearing, etc. o Make sure the system works the way it’s supposed to Because if you don’t do a good job- if you don’t hold the prosecutor and judge to do their job too- then the case is going to have to get re-heard or get appealed o Behind the scenes issue spotting It’s the defense attorney’s job to make sure all the issues were followed before you get to court- • Was it an appropriate stop? Search? Seizure? Etc… |
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Right to Counel
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Juvenile has a right to counsel in the Constitution and the Family Code
• Constitution o Applied through Gualt o The bare minimum standard o “anytime the juvenile could have a loss of liberty, they need counsel • Family Code |
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What are the instances in which the family code requires an atty to be present?
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Goes beyond the constitution- five times a juvenile needs to have counsel:
1. Discretionary transfer proceedings 2. Adjudication proceedings 3. Disposition proceedings 4. Proceedings dealing with mental illness or mental retardation 5. Motions to modify- if the probation officer seeks to modify your probation time because you violated probation and put you in TYC. For anything not adding TYC, atty not required |
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Is an atty required at a detention hearing?
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No.
Detention hearing is left out of this list- because even though attorneys are important, they are not required o Plus, in detention hearings there are other safeguards built in to the system: Nothing said in the hearing can be used against the child Guardian ad litem and parent can substitute Attorney can request the hearing to be redone |
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Can a child waive a right to an atty?
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Child can waive their right to an attorney, but they must have the attorney there when they’re waiving it. (the attorney has to waive himself)
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How do you get appointed to be an attorney for a juvenile?
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Fair Defense Act- The judges sit down and come up with minimum level experience standards before the lawyers start taking on appointments.
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At what point are the juveniles told they can have counsel?
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1. At arrest- when the Miranda rights are read
o 2. The court can order the parents to hire an attorney if the parents are able but not willing to provide one o 3. The court can also order the parents to reimburse the county if the county appoints an attorney for the kid |
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The petition
what is is and what types are there? |
Petition: The formal charging instrument similar to an indictment or a an information
• There are two (Vik says 3) kinds of petitions. He breaks it up into what you’re seeking: o 1. Your plain vanilla petition Seeks probation or TYC 80% of your petitions are like this o 2. Petition for determinate sentencing You are seeking something than just an indeterminate sentence to TYC, you are actually seeking a set amount of time for something (like probation) o 3. Petition for discretionary transfer When seeking to send a child to adult court for adult prosecution |
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What needs to be in a petition?
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1. style: in the matter of
2.name, age 3. allege parents or guardians; where kid lives 4.the offense: Penal code number and level of the offense; elements of 5. Date -: on or about - CYA WHere - see next cared |
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Why is it important to list where the crime occurred in the petition?
what are the exeptions to the rule that the court closest to the crime has jurisdiction? |
important because it’s a venue question- to determine which juvenile court it’s in
Usually you want the court closest to or where the events occurred Exceptions: • Sometimes you can have it where the defendant lives o Like if where he lives is someplace that he is already on probation o But you have to have the consent of the receiving county It is sometimes difficult to determine where something happened- like if your victim is very young, then you might want to have it in the home county o If you’re alleging prior bad conduct, you need to include what the prior adjudication was for and what happened |
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Can a petiton allege multiple offensees?
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Yes. They don't even have to be related offenses.
You can allege multiple offenses in the same indictment in adult court as long as they are related to the same facts o However, in juvenile court you can allege multiple unrelated offenses But there is no absolute right of severance like in adult court (where the defense attorney can break up the case into several different little ones) Is this a problem? YES! The jury is going to have a difficult time looking at different issues and don’t apply the correct evidence to the correct crime. |
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What if you screw up a juvenile petition?
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There is a very low standard in juvenile petitions
o If you leave something out, your petition will be struck o But if you just do a piss poor job, it will probably be upheld as long as everything needed is there • Juvenile Statutes of Limitations follow the criminal law- 2years on misdemeanors and look everything else up |
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The Summons
what is a summons and what does it need to include? |
• It says, “hey you come to court”
• It needs to include what the child is charged with • It really needs to have in it WHAT the reason is for coming to court- like what kind of proceeding/hearing is it? • Also needs to state when and where • The summons accompanies a petition. • Most important rule about the summons: The child must be personally served!! o Can’t serve through someone else o Can’t mail it o Can’t serve an attorney • Who serves? o Usually the juvenile probation officer Big thing: make sure the summons cites date, time, and place of hearing and why you need to have the kid there. |
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What are adjudication hearings and what are the types?
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Adjudication hearings are essentially the trial.
Two kinds of adjudication hearings: o Noncontested/unconstested adjudication- this is kind of like a plea agreement o Contested= go to trial • In the criminal system, most adult Δs enter into a plea bargain- they say they’re going to plea guilty to some facts- and then they get to take a lesser punishment • The same thing happens in juv court- the prosecutor says “if you plea, I’ll make some kind of deal with you” |
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Is the juv adjudication hearing waivable?
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This can absolutely not be waived.
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what are admonitions?
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Before every adjudication hearing, certain admonitions must be given to the juvenile
o These are like warnings. The judge warns the juv about certain things before the proceeding can move forward. These are what admonitions must be given by the judge 1. Allegations - the charge and the lesser included offenses (if not an uncontested hearing) 2. Nature and consequences of the proceeding 3. Privilege against self-incrimination (right to remain silent) 4. Right to Trial and Witness They have a right to go to trial and at the trial you have the right to cross examine or examine witnesses confrontation •5. right to an atty o If you can’t afford one, one will be provided for you 6. Right to trial by jury |
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Are there differnet admonitions for different adjudication hearings?
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Yes determinate sentencing adjudication hearings require more admonitions
If you’re in a determinate sentence hearing, the judge must give special information b/c the sentencing is more than normal Determinate sentencing admonitions • Judge MUST give the admonitions- cannot be delegated |
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What happens if there is a failure to give the admonitions or failure to give them fully?
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o As a Δ attorney, you must OBJECT!
o Judge will probably re-admonish the Δ, b/c it’s not a big deal and the judge will not want this small error to go up on appeal o Failure to object = an explicit waiver of the admonishment o On appeal- Not only will you have to have objected But you have to show there was harm |
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How do you show harm:
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“but for the judge’s failure to admonish my child, my child would have changed his plea.”- they are saying if the judge would have given the Δ the right admonishment, then they would have done something different
o What is this really saying? The trial court attorney didn’t do his job |
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What are other consequences of the proceedings that the judge doesn't admonish about?
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Admissibility of your record
o If the Δ was charged with or found delinquent with any jailable felony or misdemeanor that will go on your juv record o Most of the time these records can be sealed o But sometimes they won’t be sealed, and like if the kid keeps getting in trouble, and then their record can be used against them later when determining punishment o Also, it can be used against you in job searches, etc… |
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What are collateral consequences?
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(collateral consequences- stuff that the judge doesn’t have to tell you about)
o Collateral consequence- something the judge has no control over, and that other agencies control o Sex offender registration- Under the law, the judge can defer the sex offender registration However, the state requires you to register for 10 years after the offense if the judge doesn’t defer it. Vik doesn’t know why this is a collateral consequence since the judge does have control over it o Deportation- INS controls this The attorney should explain this to the child |
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Who needs to be at an uncontested hearing? How does the process work?
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How does this process work?- Uncontested Hearing
o Who needs to be there: Juvenile- sometimes can do this w/out the juvenile. You must have the juv to begin, but not to end- so if they get up and leave in the middle you can just keep going. If the Δ voluntarily takes off during the proceedings, u can keep going, but you have to have them there to start things off. Attorney- required Parent- if they’re not there, guardian ad litem appointed Judge- required Prosecutor-required |
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What is an "in between hearing?"
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Inbetween hearing- you plea (so uncontested) but seeking an appeal (very limited situation)
Situation: lets say there’s a pretrial motion (commonly a motion to suppress), and if the judge denies the motion to suppress, the Δ can plea b/c if the evidence is let in they will lose, but they plea so that they can then go and appeal the motion to suppress. |
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Trial by jury
is it gauranteeed? |
In juv court- the state constitution provides them a right to jury trial
o The federal constitution does not • TX: must have unanimous jury o In a civil manner, though, you have to request the jury trial o In criminal court, the trial is automatic o In juv court, the juv will get a trial automatically too unless they waive it- the juv prosecutor does not have to agree- the juv is the only person who can waive this. In adult court, all three- Δ, atty, and pros must sign (pros b/c of state interest) |
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What size does the jury have to be?
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Size of the jury:
o Look at the size of the court to determine how many jurors o District court- 12 jurors o County court- only 6 jurors o Exception: Determinate sentencing requires 12 jurors |
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Right to jury for punishment/sentencing?
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In adult court you can elect to have the jury select the punishment
o In the juv court, about 90% of the time you’re not allowed to have a jury do sentencing, Exception: in a determinate sentencing case |
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Fifth Amendment right- right against self incrimination
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Fifth Amendment right- right against self incrimination
o This applies only in criminal cases • Do witnesses have Fifth Amendment rights at a juvenile hearing? o Sure |
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If the witness invokes 5th, what options are there?
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The prosecutor can give the witness immunity, and then the witness no longer has a Fifth Amendment right. Then if the witness still doesn’t answer the questions, the prosecutor can ask the judge to hold the witness in contempt
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Motion to Suppress
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If you want to complain about an illegal search, seizure, or interrogation-
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Evidence
What kind of proof is needed? |
Proof Beyond a Reasonable Doubt. The juvenile court does not follow the civil preponderance of the evidence. Instead, it uses the proof BARD. The state must prove the crime that was alleged in the petition. If there is a material variance between what was charged and what was proved, the jury/judge must acquit.
Variance – a variance between the charging instrument and the facts as presented at trial. (ex. charging instruement says blue honda and its a blue toyota) Question becomes is it material? Was the notice to the defendant affected? For the most part, the appellate court will say that a variance is not a material variance. One that is material =crowbar vs. Knife and you had prepared a knife expert. |
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Texas Family Code provides juvenile broader rights than the TX and US Constitution-
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Texas Family Code provides juvenile broader rights than the TX and US Constitution-
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Dispositions
When does a disposion hearing occur? |
When does it occur:
Usually right after the adjudication But it’s up to the judge Cannot wait more than 15 days |
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Lesser Included Offenses.
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When a criminal offense is charged, the ∆ is liable for conviction of not only that offense, but also of any lesser included offenses. They are implicitly charged. If a judge/jury convicts a ∆ of a lesser included offense, it is, by that action, also finding him or her not guilty of the greater offense. Don’t need to be charged seperately.
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Accomplice Corroboration.
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The prosecutor cannot gain a conviction based solely on out-or-court, uncorroborated statements of a co-defendant. There has to be some evidence showing that the statement was true. Ex: 4 juveniles on school grounds at night. Vandalism occurs at school. One kid confesses and incriminates the others. There was no other evidence linking the other kids to the crime. No prosecution of the other 3. Ex: Crim Trespass, 4 kids, 1 confessed. No other evidence linking 3 kids to crime. No prosecution of the 3.
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Jury trial evidence
what is a batson strike? |
If the defendant shows that the prosecutor stuck a potential juror because of race/gender and that juror was within the strike zone, and the prosecutor fails to show some/any race/gender/ethnic neutral reason for the strike (can give just about ANY [hair, sleeping, etc. but has to fit (didn’t like answer – must have asked a question)] reason to prevent the Batson challenge), then the judge will not allow that strike. The right to be on a jury belongs to the juror.
o Recognized classes – race, gender, national origin, religion |
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is there a jury?
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No Jury unless there is a determinate sentencing situation
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Corpus Delicti.
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Conviction cannot rest solely upon the defendant’s out-of-court confession. There has to be some evidence showing that a crime was committed to corroborate the confession.
• Because juveniles say certain things. |
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Affirmative Defense
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. The ∆ attorney has elements to prove. If they can prove these elements, it doesn’t matter whether or not the prosecutor proves their case. The ∆ will win. The standard is preponderance of the evidence. The most common affirmative defense is self-defense. Other affirmative defenses include insanity at the time of the act & duress.
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Bruton Rule (Crawford Rule).
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• Crawford- revived right to cross and confront. You didn’t have to bring in the person who called 911, you could bring in the operator or the officer. Sc said that if you are asking questions in an effort to aid your investigation that is part of your case. Defense has a right to cross examine your witness. Can’t just offer hearsay evidence. But SC didn’t give parameters. They talked about if the statement was testimonial in nature, but if it wasn’t you could fit it under . . .
• SC said that you have to determine whether it is testimonial in nature. What is the motive behind the call. Help my bf is hitting me or my bf left the house with a knife and i am pissed at him |
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What are the three broad options the judge has?
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What are the three broad options the judge has?
Probation in the home Probation outside the home TYC if it’s not a misdemeanor |
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Videotaped Statements
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. Videotaped statements may be admitted if it is “necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the ∆” and the child is unavailable to testify. Videotaped statements may be admitted into trial to impeach a victim. This is because the victim must take the stand so the ∆ has the right to confront their accuser.
• However, Crawford may now force the person who makes the outcry to testify. Questionable whether the prosecution can bring in the videotape unless the defense opens the door. Ex. Vik crossing a little girl who says her dad sexually assaulted her. He didn’t think this really happened based on his instincts. • Can witnesses take the 5th amendment? He can’t plead the 5the before he takes the stand. But he can refuse to answer a question. Side can still put the witness on the stand. Prosecution can grant immunity to the witness and then the witness must be compelled to testify. |
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What must a judge find before he makes a disposition?
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In order to make one of these decisions about what to do, he must make certain findings:
In every case he must make the finding that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made. If the court or jury does not so find, the court shall dismiss the child and enter a final judgment without any disposition |
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What he can use to make the determination:
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social history, live witnesses (both from the prosecutors and the defense), evidence that was presented in the adjudication hearing, other reports
• Social history: background report on the child. Jury doesn’t get it because it is fully of speculation and hearsay and other stuff not admissible to a jury • Other reports: psychological or psychiatric exams that have been done, the defense may have other reports- like a report from a sex offender evaluator to determine how likely he is to be a repeat offender • It’s not that the rules of evidence don’t apply, it’s that they’re more liberal |
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What findings must be made for sentences that remove the child from the home?
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Anything that removes the child from the house requires the judge make the finding that the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. (TYC and probation outside the home)
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What findings must be made to sentence a child to TYC?
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Findings required for TYC:
1. It’s in the child’s best interests to be placed outside the home; 2. Reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the child’s home 3. The child, in the child’s home cannot be provide the quality of care and level of support and supervision that the child needs to meet the conditions of probation… • This is the one that sounds like it is critical of the parent and the one they get sad about (p.228) |
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What is probation?
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Formal court ordered supervision that has certain terms and conditions
o There are many conditions and they vary. o Number one condition: you cannot break the law again- not in this state, another state, or a federal law o Other terms and conditions:Drug testing,Cannot associate with people or persons who use drugs or alcohol • If the parents are doing it, then the parents will be required to go to drug education or the child will be removed from the home, Curfew, Probation officer reporting, Go to school, community service, etc. |
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Special conditions for out of the house probation?
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Out of the house probation: usually requires that you complete some kind of a program, and even after you complete it you are still on probation. So what happens after you complete the program you go back home.
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What is the length of Probation
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Length:
1 year is one option OR Until you are 18 The reality is that every case is generally reviewed every year, so even if you are placed till your 18th bday you can get an early release • |
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Parameters for the judge to impose a term and condition:
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They must be reasonable AND
o They must not be vague- specific terms and conditions that the child can understand |
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Special conditions for TYC commitment:
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Requirement: FELONY
No CHINS offenses! o General TYC Commitments are indeterminate sentences- the maximum length they can be kept is for their 19th birthday, and the judge sentences them for an indeterminate amount of time not to exceed their 19th birthday |
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Guidelines for TYC sentencing:
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Depending on your classification, you could be going to TYC anywhere from 9mos to 24 mos
General offender- 9 mos minimum If you are deemed a chronic, serious offender it could be 12 mos at a minimum If you are a violent serious offender, you get 24 mos minimum o The minimum stay limits are important so you can tell your client |
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Terms and conditions judges can put on parents:
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Order them to provide food, clothing, shelter, transportation to the stuff that the court requires them to do
o Must report any known violations of probation o Restitution o Supervision fees o Court costs |
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Modification hearing - what is the purpose?
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Purpose: the state is seeking to change the probation to some extent- could be small like adding a term/condition or could be big like the length
• These are for CHINS offenses (the status offenses) and delinquent conduct (the law violations) |
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What are the petition and notice requirements for a modification hearing?
who can petition for a modification? |
Petition can be made by the child, parent, guardian, guardian ad litem, attorney, or petition of the state, probation officer, or the court itself
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What is needed in the motion?
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The Family Code is not specific. The book suggests that the safest course of action si to follow the guidelines of the Family Code for adjudication petitions:
What Vik says we should have: When, Where- summons Say when the child was placed on probation What the child was placed on probation for • So we know if the kid can go to TYC or not What kind of modification is being sought |
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What kind of notice should be given with a modification hearing?
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“reasonable notice” doesn’t have a definition yet
A prudent prosecutor will give the Δ a 10 days notice with this motion If counsel believes he or she has not been given adequate notice of the issues and time to prepare a defense, the remedy is to file a motion for continuance |
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Who gets the notice?
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Who gets notice?
“Reasonable notice of a hearing to modify shall be given to all parties” This includes: • Child and at least one of the adults in her life • State- if the attorney files the motion Attorney doesn’t need to be included: • Attorney only needed if the state is seeking TYC or to place the kid out of the home for >30 days • Short of that, the child doesn’t need an attorney under the law and can even waive the hearing |
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What happens procedurally in the modification hearing?
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1. Violations part
State alleges certain violations Prove that the violation of probation occurred Burden of proof: preponderance of the evidence • Use same rules of evidence as in the adjudication hearing 2. Dispositions part Options before the judge: all the same as before Social history re-admitted Standard of review on appeal: abuse of discretion |
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in a modification hearing, does the judge have to make the three findings that he did in the original disposition hearing?
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The three findings the judge had to make in the first disposition hearing, he does not have to make these findings again
• Even if the finding that the home is ok is made in the first disposition, and now the judge wants to remove the child from the home, they don’t have to make a new finding • However, if you’re seeking a TYC commitment there is an additional finding that needs to be made-? |
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Time limits - when can a modification for dispostiion be made?
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File the motion to modify before the end of probation (before 1 year after the youth was placed on probation and before he is 18)
• Can file the motion before the end of probation, but don’t have to have the hearing before the end of probation • What if they’re 18? o If no motion to transfer filed before 18, we can’t file one now o If no transfer, you can’t really do anything to them. Because court loses jurisdiction at 18 |
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Highlights of modification of disposition
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No right to jury trial
o Preponderance of evidence o Counsel not necessary unless seeking commitment of TYC or >30 days out of home o Bifurcated hearing |
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Transfers to Criminal Cour
What are they? |
We’re talking about hearings to transfer to the criminal court- the juv court is waiving its jurisdiction and sending it to the criminal court
o Absence of waiver the criminal court cannot touch the case if a juvenile committed the offense • Three types of transfer hearings o 1. Mandatory Transfer o 2. Transfer for those under 18 o 3. Transfer of those over 18 |
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Mandatory Transfer - what is it and when does it happen?
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Mandatory Transfer- A situation when the kid has been transferred before (like committed an offense at 14 or 15 and was transferred and for some reason is back on the street and if 16 he commits a new offense)
1.Must have committed a felony (the new offense must be a felony) 2. Must have been previously validly transferred 3. As long as there wasn’t some defect in the trial, then he goes back to criminal court mandatory transfers are not automatic, you still have a transfer hearing, but it becomes more of a formality. |
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Transfers when someone is under 18
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The prosecutor is the person who seeks the transfer and the court has to approve or disapprove of the transfer
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What are the requirements to transfer someone ?
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1. The charge must be a felony grade
A. you can be transfered if yo uare at least 14 for capital crimes, first degree felonies, aggravated controlled substance violations. B. You can be transferred at 15 for all other felonies |
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what are the other requirements?
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2. No adjudication must have occurred
3. Diagnostic study and a full evaluation/investigation conducted and submitted to the court (and the defense attorney needs to get it at least one day before the hearing). This study includes: • Psychological test • Psychiatric test • Huge background check • The court also has to try and find out the circumstances of the offense and surrounding the offense |
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Why are these studies important?
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Reason it’s important: you want to make sure that before you send this person to an adult prison, do they have an adult mindset
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Does the juvenile have a right to an attorney during these evaluations?
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NO right to an attorney during these evaluations b/c not a critical stage in the proceeding
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Will these evaluations be used against the defendant? does this violate the 5th?
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This proceeding does NOT violate the right to self incrimination- because it cannot be used against him later, and the child doesn’t have to talk about how they are involved in the offense just the circumstances surrounding the offense (which makes absolutely no sense).
Vik tells his kids who talk to these psych people not to talk about the offense- but they can talk about anything else • Huge EXCEPTION to the statement not being used: impeachment. So even though you can’t let in the evidence in court on its own, if the child says anything contradictory to what the kids says to the psych person in court, they can use these studies/reports to impeach the kid in court If your kid doesn’t cooperate with the psych person, you can’t complain that the report is insufficient b/c it doesn’t contain anything about the offense |
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What are the criteria for transfering someone who is under 18 into the criminal court system?
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Criteria [to be considered] for transfer:
o 1. Was the offense a property offense or a crime against a person? o 2. Sophistication or maturity of the child o 3. Prior history and record of the child, if any o 4. The prospects of the adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court Is there anything we can do that hasn’t already been done? • The ultimate finding that the court needs to make is if this is better for the welfare of the community. • The court also has to find probable cause- based on certain kind of evidence |
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Procedural aspects of the transfer hearing.
are there the same rules of evidence? is there a right to trial by jury? |
No right to jury
• Rules of evidence do not apply- the entire social history/psych report is hearsay o They don’t apply b/c there is no guilt/innocence determination • It does say that the TX Rules of Evidence does apply- but there are special exceptions for the social history/psych report- and the judge will apply the rules liberally • Recap of Requirements o Must be a felony: Depends on the age 14 or 15, what kind of violation o No prior adjudication o Probable Cause must be found o Court must make certain findings |
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Transfers for those over 18. does this mean that the crime was committed when they were 18?
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no the crime must have been committed when the person was between 10 and 17.
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What are the statutory requirements?
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When the offense was committed between the age of 10 and 17
• Requirements by statute: o The juvenile court may waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings if: (1) the person is 18 years of age or older; (2) the person was: • (A) 10 years of age or older and under 17 and is alleged to have committed a capital felony • (B) 14 years of age or older and under 17 and is alleged to have committed an aggravated controlled substance felony or a felony of the first degree; • (C) 15 years of age or older and under 17 at the time they were alleged to have committed a felony of the second or third degree or a state jail felony (3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted (4) the juvenile court finds from a preponderance of the evidence that: • (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th • (B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18 birthday of the person; or th o (i) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18 birthday of the person because: th o (ii) the person could not be found; or birthday of the person o (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged |
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So what exactly did the statatute say?
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If the capital felony (murder) was committed between the ages of 10 and 17, they can be transferred after 18
If it was a first degree felony or an aggravated controlled substance felony then you must have been 14 at the time it was committed Court must have the full hearing and investigation o There has to be all the same stuff that existed before for under 18 PLUS o Good cause- the court can allow transfer if it finds there was a reason beyond the state’s control where the juvenile couldn’t be prosecuted OR After due diligence of the state it was not practicable to proceed in juvenile court before the person’s 18th • No probable cause then, but new evidence now birthday because of : • Person could not be found • Pervious transfer order reversed o Plus, then the court must determine probable cause |
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What does it mean that the statue requires due diligence?
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Due diligence: basically the prosecutor can’t be lazy they can’t just sit around and not work on the case- it has to be something beyond their control
o Ex. The victim or someone refused to cooperate with the state initially and later they agree to |
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Quark in the system
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(if you were 10-13 at the time of the offense you can’t be transferred for murder at that time, but if are over 18 but then are caught and have committed a murder when btwn 10-13, then you can be transferred.)
o You can’t get away with murder!!! |
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Big things to know about transfer procedure
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When you are eligible to transfer
• What the requirements are • And what findings does the judge need to make and what does he look at to make those findings? |
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Determinate sentencing - what is it?
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Its a stopgap solution for when the
There are cases though where the TYC or probation is not enough, but they don’t want to just send a kid off to adult system |
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Who can receive determinate sentencing?
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For kids of any age, as long as they commit a certain offense listed (one of the now 30ish listed)
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What type of conduct can determinate sentencing be used for?
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Offenses originally covered:
o Murder o Capital murder o Aggravated kidnapping o Aggravated sexual assault o Deadly assault on a law enforcement officer, corrections officer, or court participant; or o Criminal attempt but only if the offense attempted was capital murder • Additional offenses now covered: o Second and third degree felonies o Some assaultive offenses: Certain drug offenses o Criminal conspiracy o Criminal solicitation o Habitual felony conduct etc. etc. |
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Is determinate sentencing constitutional?
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It has been challenged on just about every constitutional ground. Bottom line is it is here to stay.
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What is the procedure for determinate sentencing?
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1. Prosecutor decides to pursue the case under the special provisions of the Determinate Sentence Act instead of as an ordinary delinquency case
• 2. Prosecution must seek the approval of the grand jury |
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How does the grand jury work in determinate sentencing?
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State grand jury=12 people; federal ones = 23 people
They are lay persons o The grand jury must find that probable cause exists- and then they indict the Δ o Δ not entitled to make any kind of presentation to the grand jury- unless the grand jury requests it and sometimes the Δ requests for the grand jury to allow them to present evidence o No right to appear, but if you do appear as a Δ, it is testimonial and will be recorded and can come back and bite you in the ass o 9 people on the grand jury must approve determinate sentencing --If not, they can try again --They can try certification- which also requires grand jury approval --And they can try regular petition |
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Who has to receive notice of a petition for a grand jury in a determinate sentencing case?
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Petition to the grand jury must be served on the Δ personally as well- must state what they are seeking (determinate sentencing)
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Can the grand jury be waved?
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Juvenile and his attorney can effectively waive the juvenile’s right to grand jury approval of the petition and authorize determinate sentence proceedings w/out grand jury approval
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After the grand jury has indicted the juvenile what happens in the adjudication process in a determinate sentencing procedure?
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Adjudication process in a determinate sentencing case-
o Very similar to an adjudication process in a plain petition Adjudication- the guilt/innocence phase o So you are entitled to a trial by jury. Difference: determinate sentencing determines the size of the jury at 12 (so it doesn’t matter what court you’re in)- b/c of level of offense and to be consistent with penal code? Crim law? You get 10 preemptive strikes- also b/c of the level of offense |
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who determines the sentence once a child has been found guilty?
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The child has to elect, prior to voire dire, if they want to have sentencing determined by the jury- or it will be determined by the judge
They have the right to withdraw that election before disposition |
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How many people must vote that the child is guilty?
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Verdict must be unanimous
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Waht is the procedure like in the disposition hearing?
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Disposition hearing- Court (judge or jury- whoever is doing the sentencing) is required to make some findings in the disposition hearing:
o 1. The child is in need of rehabilitation or the protection of the public or the child requires that disposition be made o 2. Probation Placement of a child outside the child’s home and removal of the child from his or her home requires a finding that the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of the probation o 3. Juvenile court judge (A) it is in the child’s best interest to be placed outside the child’s home; , if the respondent is committed to TYC or placed on probation outside his or her home, must find: (B) reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the child’s home; and (C) the child, in the child’s home cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation o Important to know these (but not verbatim or anything) because you don’t just have to argue guilt or innocence of the Δ, need to argue any and all of these things you can |
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Sentencing the Juvenile
what are the minimum and maximum penalties in determinate sentencing? |
Most serious crimes (capital, first degree, aggravated controlled substance..)- 40 years maximum
We know that TYC can only keep someone till they are 19 There is some process to allow them to transfer the kid to adult prison at 19 o Second degree felonies- 20 years max o Third degree felonies-10 years max If you receive a punishment of 10 or less years, probation may be allowed/recommended o Something tied to the maximum are minimum lengths of stay associated with each charge You need to know these so you can tell your client what they risk if they go to court For the most serious cases (capital, first degree…), the MINIMUM is 10 years • This gives the Δs in TYC an incentive to be on good behavior because then they can get parole |
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Guide line chart
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For Capital Murder, 1st
Max – 40 years Degree Felony and Aggravated Controlled Substance Felony Minimum stay • Capital murder = 10 • 1st o 2 degree / ACSF = 3 nd 20 years max Degree Felony 2 years min o 3rd 10 years max Degree Felony 1 year min o When transferred to Adult System You must serve 25% of original sentence If 3G crime or finding of a deadly weapon – 50% min |
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How does the finding of a deadly weapon effec the outcome?
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This affects the time your client spends in jail
o There are very different rules about deadly weapons in adult and juvenile court: In an adult court, if the jury finds a deadly weapon (pretty much any item that was used in a way that was intended to cause bodily injury-was used in the offense or exhibited in the course of an offense, you have to serve a mandatory ½ of your offense and you are not eligible for probation • Also the law of parties applies if you are an adult- that means if your accomplice uses it, then it is imputed to you as well For juveniles, there is a very real possibility they will end up in adult court, and if they get transferred at 19 from TYC, and then all the adult rules apply, the minimum lengths of stay could go out the window • If you are on probation for 10 years and you were transferred to adult court, then you commit another offense, the deadly weapon finding could kick in and you would have to serve half the time • Also, if your case is immediately transferred then you have to serve half the time they give you |
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Does the rule of parties apply in Juvenile court?
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However, the law of parties does not apply- the juvenile themselves must have used the deadly weapon in order for the extra sentencing to apply
• P. 524 |
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Death Penalty?
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Are juveniles eligible for the death penalty?
o NO o We have a whole class period on this o If you’re under the age of 18 we don’t kill you in the U.S. and even in TX- so says the US Supreme Court o Reasoning: cruel and unusual punishment to put them to death • So what options are there if they do get certified? o Life with no parole???? Not anymore. |
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Waivers
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you can’t waive by a failure to act- because we don’t want to set a “trap” to the juvenile, we want to make sure they know what’s going on
o Waiver must include: Child AND attorney consent Informed and understand the consequences (Knowing) Voluntary (VIK- voluntary intelligent and knowing) In writing or in a court proceeding that is recorded |
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what are the three things that can be waived if you do not object to them?
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Three times the juvenile must actually object otherwise they waive the right
• Age- must bring up that you are a juvenile • Juvenile court’s admonitions- when they don’t tell the juvenile all the warnings needed When they take the witness stand o Don’t have to put this is writing etc meet all the above requirements- if they testify we assume all is fine unless there is an objection and they say they don’t want to testify Also atty must object if he did not have the ten day time to prep. |
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What can they NEVER waive
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Right to counsel in certain hearings:
Discretionary transfer Adjudication Disposition Probation revocation- probation that leaves to a TYC transfer Chapter 55 hearings (mental incompetency hearings) |
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What type of hearings can be waived?
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Pretrial hearings
Detention hearings |
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Confessions - written and oral
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Funny thing about age:
if you are being questioned for a crime and you are 10-16 then you are protected by the juvenile confession statute. If you are 17 years old and you are being questined for a crime that was committed before you turned 17, then you also get the juvenile confession statute protection. However, if you are over 18, you never get the protection of the juvenile confession statute. |
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Which confession laws will govern the law with repsect to out of state confessions?
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what it really comes down to is who has more interets in the case.
Texas conflict of laws principles • 1. Where the injury or unlawful conduct occurred • 2. The place where the relationship between the parties is the strongest • 3. The number and nature of contacts that the non-forum state has with the parties and with the transaction involved; • 4. The relative materiality of the evidence that is sought to be excluded; and • 5. The fairness to the parties |
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What triggers the juvnile confession statute?
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Custody- the test is would a reasonable juvenile of the same age believe they were in custody?
If the child is not in custody, then the oral statment is admissible as long as it was given orally. |
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When can a child's oral confession be admitted into evidence?
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1. When there is coroborative evidence leading to the credibility of the statement.
2. Res Gestae - when statements are made immediately before or after the act and are so closely connected to the act that they may be considerered part of the act itself. 3. statements made in open court |
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What are the statutory requirements for written confession?
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1. The juvenile must first be given warnings by a magistrate (basically miranda warnings). silence, atty, right to teminate interview.
2. Next, an officer gets a confession and puts it in writing. 3. next, the judge must certify the statement. -the juvenile must say that the statment was voluntary, intentioanal and knowing. -the child must sign the confession in the presence of the magistrate and then the judge must sign it as well. NO LAW ENFORCEMENT OR PROSECUTION can be in ther room whrn the judge certifies (ony an unarmed balif may be present for safety) **parent do not have to be ther when the kid is questioned** |
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What about recorded statements?
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Recorded statements
The magistrates only have to come the first time (at the beginning) of the tape • they don’t have to decide after the statement is made (whether written or oral) if it’s voluntary b/c we can look at the tape and decide if it is or not |
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What if a statement is made that is in vioaltion of a right or statute?
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then the defense will move for a motion to suppress and the statement as well as any fruit from the statement will be supressed.
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What if a child confesses once and it is admissable?
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This is known as the case out of the bag theory. As it currently stands, a juvenile that gives a confession in a situation where his rights have been violated must be taken before a judge and the judge must explain that the first statment was inadmissable and that he doesn't have to give another one.
If he does, then the second statement is admissable, but not the first. |
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Juvenils and the death penalty: Roper v Simmons
What did the majority say? |
1. The juveniles psychologically are not mature
2. National standard- o This is a huge point of contention amongst all opinions o The argument is that the national standard has changed from 1989 till now 30 states didn’t impose the death penalty on juveniles (but 12 didn’t have death penalty anyways) And 4 more states have decided not to kill juveniles o Apparently the four state swing shows a changing national standard 3. International Consensus Factor o US is the only country that kills juveniles |
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What about Scalia's dissent?
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Strict constructionalist
• If it was that important, why doesn’t congress just pass it • This is up to states • More entertaining than anything, brings up some good point |
