Ensuring Right to Counsel in Juvenile Court

1. Right To Counsel In Juvenile Court Class 14

2. HISTORICAL AND CONSTITUTIONAL CONTEXT • The juvenile court functioned for nearly 70 years with little constitutional oversight and without the required presence of counsel. • Haley v Ohio • “…the fact that he had no friend or counsel to advise him…” • “…the callous attitude of the police toward his rights • Gallegos v Colorado • “..a 14 year old boy …is unlikely to have any conception of what will confront him when he is made accessible only to the police” • Fare v Michael C. • Request to see Probation Officer was tantamount to request for an attorney under the ‘totality of circumstances’ of the interrogation • Dissent (Marshall, Stevens, Brennan) argued that Miranda is the basis for the right, and request for presence of PO was not the same

3. Kent v. U.S. (1966): Among other things, Court held that there must be a meaningful right to representation by counsel in that the child’s attorney must be given access to the documents considered by the juvenile court in making a waiver decision, including a statement of the reasons for transfer. • Reliance on D.C. statutory law left doubt about the significance of holding to other jurisdictions. • Justice Fortas: “…the right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.”

4. In Re Gault, 387 U.S. 1 (1967) • Youths are not the equal of police and require procedural safeguards such as the presence of counsel • Juveniles and their parents are entitled to constitutionally adequate notice of the precise nature of the charges against youth. • A youth charged with an act of delinquency must be advised of the right to the assistance of counsel and, if indigent, given the right to have counsel appointed. • The juvenile has the right to confront the witnesses against him or her in the hearing on guilt or innocence and to cross-examine those witnesses. • The privilege against self-incrimination applies to juvenile proceedings and the child must be informed of that right as well.

5. “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, [and] to insist upon regularity of the proceedings…The child requires the ‘guiding hand of counsel at every step in the proceedings against him.’” • Following Gault, states moved to implement the right to counsel. • However, few states have defined it as an absolute right by requiring that the juvenile have the advice of an attorney before the right of counsel can be waived, or by prescribing an “unwaivable” right to counsel.

6. Right To Counsel After Gault • Since Gault, in many jurisdictions, the promise of counsel remains unrealized: • Study by the Government Accountability Office (GAO) revealed that many juveniles waive their right to counsel. • The rate in rural jurisdictions rises to 50% or higher. • Feld: Less than 50% of juveniles adjudicated delinquent receive the assistance of counsel. • Significant disparity between large urban jurisdictions and rural areas. • State studies: • North Carolina: Over half (58.2%) not represented by attorney • Minnesota: Enormous county-by-county variations in rates of representation, ranging from a high of over 90% to a low of less than 10% • Quality of legal representation: • Study by Richard Lawrence found attorneys devoted little time to juvenile delinquency cases. More than 60% of attorneys surveyed spent two hours or less representing their juvenile clients. • NY State Bar Association: In 47% of cases observed outside NYC, attorneys had either not prepared or prepared minimally for the case.

7. Explanations • Why are so many youth still unrepresented in juvenile proceedings? • Parental reluctance to retain an attorney • Inadequate or non-existent public defender legal services • Especially in rural jurisdictions • Judicial encouragement of and readiness to find a waiver of the right to counsel in order to ease administrative burdens on the courts • Cursory and misleading judicial advisories of rights that inadequately convent the importance of the right to counsel and suggest that the waiver litany is simply a meaningless technicality • A continuing judicial hostility to an advocacy role in traditional treatment-oriented courts • Judicial predetermination of dispositions with non-appointment of counsel where probation or non-incarceration is the anticipated outcome

8. Pre-Trial Interrogation • The most common explanation for non-representation is waiver of counsel. • In most jurisdictions, the validity of a minor’s waiver of the right to counsel is determined by assessing whether there was a “knowing, intelligent, and voluntary waiver” under the “totality of circumstances.” • While the Supreme Court has never ruled on the validity of a minor’s waiver of the right to counsel in delinquency proceedings, it upheld a minor’s waiver of the Miranda right to counsel at the pretrial investigative stage under the “totality of the circumstances.” (Fare v. Michael C.) • But, given what we know about the developmental capacity of juveniles, can such a waiver occur “voluntarily and intelligent?”

9. Competence • Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980) • Conducted tests to see whether juveniles could: • Paraphrase the words in the Miranda warning • Define critical words in the Miranda warning, including “attorney,” “consult,” and appointment.” • Give correct true-false answers to twelve re-wordings of the Miranda warnings. • “As a class, juveniles younger than fifteen years of age failed to meet both the absolute and relative (adult norm) standards for comprehension…The vast majority of these juveniles misunderstood at least one of the four standard Miranda statements, and compared with adults, demonstrated significantly poorer comprehension of the nature and significance of the Miranda rights.” • The level of comprehension exhibited by juveniles 16 and older, although comparable to adults, was inadequate. • Linguistic competence sufficient?

10. Additional considerations: • Juveniles more susceptible than adults to the coercive pressures of interrogation. • Inexperienced youths may waive their rights and talk in the short-sighted and unrealistic belief that their interrogation will end more quickly and secure their release. (Taylor v. Maddox) • Youth typically acquiesce to police suggestions more easily and speak less assertively or aggressively than adults. • Moran v Burbine, 412 U.S. 412, at 421 (1986) • Waiver must be voluntary, defendant must have “knowing and intelligent” awareness of the right relinquished • Choice must be “uncoerced” • So, what if the defendant simply says “Yes” …?

11. Procedural Safeguards • Some states have included special procedural safeguards, such as the “interested adult” rule, which requires parental presence at interrogation • “It is believed that the interested adult can remedy the shortcomings resulting from immaturity by providing advice to enhance the juvenile’s understanding of his or her rights and by being present during custodial interrogation to protect the child from the compelling atmosphere of custodial interrogation” (State v. Benoit) • But, the presence of parents during interrogation may not provide the envisioned benefit for the juvenile and may increase, rather than decrease, the coercive pressures on a youth.

12. Mandatory, Non-Waivable Counsel • Per se rule that requires consultation with counsel and the presence of an attorney at every interrogation of a juvenile and prior to any waiver of the right to counsel. • In the Interest of J.D.Z. • “Section 27-20-26 N.D.C.C., not only provides that a party is entitled to representation, but specifically states: ‘Counsel must be provided for a child not represented by his parent, guardian, or custodian’…The mere presence of a parent does not constitute representation.” • A few states require juveniles to be represented by counsel at interrogation and bar youths from waiving the right to counsel without the written consent of a parent.

13. Iowa Stat. §232.11 • A child shall have the right to be represented by counsel at the following stages of the proceedings within the jurisdiction of the juvenile court: • From the time the child is taken into custody for any alleged delinquent act that constitutes a serious or aggravated misdemeanor or felony and during any questioning thereafter by a peace officer or probation officer • The child’s right to be represented by counsel…shall not be waived by a child less than sixteen years of age without the written consent of the child’s parent, guardian, or custodian. The waiver by a child who is at least sixteen years of age is valid only if a good faith effort has been made to notify the child’s parent, guardian, or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child.

14. Mandatory, Non-Waivable Counsel? • Procedural safeguard or “dubious technicality”? • Analogies? • Exclusionary rule