Juvenile Defense Training Series

INDIANA PUBLIC DEFENDER COUNCIL

1 Juvenile Court Jurisdiction

2 Juvenile Rights and Special Issues

3 Case Initiation and Procedure

4 Waiver and Fact-Finding Hearings

5 Disposition

6 Post Disposition Matters

2Juvenile Rights and Special Issues

➢Overview of Juvenile Rights➢Juvenile Waiver of Rights Statute and Procedure➢Issues Related to Juvenile Statements➢School Issues Related to Search and Seizure➢Juvenile Competency Issues

Overview of Juvenile Rights

Juvenile Rights are derived from:

US Constitution

Indiana Constitution, and

IC 31-32-2

In re Gault, 387 U.S. 1 (1967)

“Under our Constitution, the condition of being a boy does not justify a kangaroo court”

- Justice Abe Fortas

Overview of Juvenile Rights

Right to Counsel

Right to Due Process of Law

Right to Notice of Allegations

Right to Confrontation

Right to Compulsory Process

Right to Introduce Evidence

Right to Remain Silent

Right to Consult with Counsel, Parent or Guardian

Right to Have Parent Present

Right to Speedy Trial

Right to be Free from Unwarranted Search and Seizure

Right to Appeal

Right to be Free from Cruel and Unusual Punishment

Rights Children Do NOT Have

No Right to Bail

IC 31-37-6-9

No Right to a Jury Trial

McKeiver v. Pennsylvania, 403 U.S. 528 (1971)

IC 31-32-6-7(a)

A.S. v. State, 929 N.E.2d 881 (Ind. Ct. App. 2010)

Advisement of Rights

Advisement of rights must happen at various stages, including the detention hearing and initial hearing, prior to admission and at disposition

A written advisement of rights when signed by child and parent is likely sufficient

J.M. v. State, 727 N.E.2d 703 (Ind. 2004)

En masse or videotaped advisement alone may not be adequate or appropriate

The court must question children about whether they understand their rights

N.M. v State, 791 N.E.2d 802 (Ind. Ct. App. 2003)

Right to Counsel

IC 31-32-2-2

IC 31-32-4-1

Advisement

Timing

Waiver

Role of Counsel

Advisement of Right to Counsel

Child must be advised of right to counsel at no cost if the child and parent cannot afford one

N.M. v. State, 791 N.E.2d 802 (Ind. Ct. App. 2003)

Child must be warned of the dangers and pitfalls of pro se representation

A.A.Q. v. State. 958 N.E.2d 808 (Ind. Ct. App. 2011)

Child must have an opportunity to meaningfully consult with parent about appointment of counsel

Failure to properly advise the child about right to counsel is fundamental error

A.S. v. State, 929 N.E.2d 881 (Ind. Ct. App. 2010)

Right to CounselTiming of Appointment

IC 31-32-4-2

If the child does not have attorney who may represent the child without a conflict, and

the child has not lawfully waived the right to counsel,

the court SHALL appoint counsel at the detention or initial hearing, whichever occurs first, or at any earlier time.

Criminal Rule 25 - Mandatory Appointment of Counsel:

State requests waiver to criminal court

Parent has adverse interest

Before any hearing where court may find facts on the basis of which the court may award wardship to DOC or place child in a community based correctional facility

Right to CounselTiming of Appointment

Criminal Rule 25 - Mandatory Appointment of Counsel:

Before any hearing where court may find facts on the basis of which the court may impose:

Confinement or continued confinement in a JDC

Placement or continued placement in a secure private facility

Placement or continued placement in a shelter care facility

Placement or continued placement in a non-relative out of home placement

Following the earlier of an initial or detention hearing

Or unless or until a valid waiver has been made

Waiver of Right to Counsel

Waiver must be voluntary, knowingly, and intelligently given

Bridges v. State, 260 Ind. 651 (1973)

Factors for determine V/K/I waiver:

The extent of the court’s inquiry into decision to waive

Evidence whether child and guardian understood dangers and disadvantages of self-representation

Child and guardian’s background and experience

Context of the decision to go pro se

Poynter v. State, 749 N.E2d 1122 (Ind. 2001)

Waiver of Right to Counsel

Following Appointment

Criminal Rule 25 applies

Following the appointment of counsel, waiver must be made:

in open court

on the record

confirmed in writing, and

in the presence of the child’s attorney

Waiver of the right to counsel may be withdrawn at any stage of a proceeding, in which event the court shall appoint counsel for the child

Role of CounselExpressed Interest Representation

A youth requires the assistance of counsel “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of proceedings, and to ascertain whether he has a defense and to prepare and submit it.”

- In re Gault

Counsel serves as the sole voice of the client’s expressed interests NOT an advocate for what the lawyer or others believe is in the client’s “best interests”

NJDC National Juvenile Defense Standards

Indiana Rules of Professional Conduct 1.2, 1.4, 1.14, 2.1

Right to Due Process of Law

U.S. Constitution

5th & 14th Amendments

Indiana Constitution

Article 1, Section 12

In re Gault

Davies v. State, 357 N.E.2d 914 (Ind. 1976)

The standards for determining what due process requires in a particular juvenile proceeding is fundamental fairness

S.L.B. v. State, 434 N.E.2d 155 (Ind. Ct. App. 1982)

Procedural Rights

Confrontation

Compulsory Process

Cross Examination

Introduction of Evidence

Silence

Basis for these rights

US Constitution 5th & 6th Amendment

Indiana Constitution, Article 1, Section 12 & 13

IC 31-32-2-1 & 2

Right to a Speedy TrialIC 31-37-11-2

If the child is detained:

• A fact-finding or waiver hearing must start within 20 days after the petition is filed

• Timing excludes weekends & legal holidays

• Remedy is release IC 31-37-11-7, Brown v. State, 448 N.E.2d 10 (Ind. 1983)

If the child is released:

• A fact-finding or waiver hearing must start within 60 days after the petition is filed

• Timing excludes weekends & legal holidays

• No remedy K.G. v. State, 67 N.E.2d 1147 (Ind. Ct. App. 2017)

Following denial of waiver:

• A fact-finding hearing must start within 10 days after waiver is denied

• Timing excludes weekends & legal holidays

• If detained, remedy is release IC 31-37-11-7

Double Jeopardy

U.S. Constitution 5th Amendment – “. . . Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . .

Indiana Constitution Article 1, Section 14 – No person shall be put in jeopardy twice for the same offense

Double jeopardy attaches to juvenile proceedings (Breed v. Jones, 421 U.S.519 (1975), D. B. v. State, 842 N.E.2d 399 (Ind. Ct. App. 2006)

Does not matter that there is only one dispositional order for multiple true findings because juvenile histories can be used to enhance defendant’s sentence (H.M. v. State, 892 N.E.2d 679 (Ind. Ct. App. 2008))

Wadle and Powell look to criminal statutes and common law to provide even greater protection than what Blockburger provides

2020 Ind. Lexis 676 (Ind. 2020)

2020 Ind. Lexis 675 (Ind. 2020)

Wadle and Powell

The federal constitution prohibits prosecution of separate offenses that have the same statutory elements

284 U.S. 299 (1932)

Blockburger

Prosecutions for the same offense in successive proceedings is prohibited by both federal and state constitutions

Constitutional

IC 35-38-1-6; 35-31.5-2-168In

clu

ded

Off

ense

Established by proof of the same material elements or less than all material elements

required

that consists of an attempt to commit the offense charged or an offense

otherwise included therein

that differs from the offense charged only in respect that less serious harm or risk of

harm to the same person property, or public interest, or a lesser kind of culpability, is

required to establish its commission

Juvenile Waiver of

Rights Statute

IC 31-32-5-1

Elements of Valid Waiver of Rights

Knowing, Voluntary and Intelligent

Requires K/V/I waiver by parent and child

D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011)

Meaningful Consultation

Actual consultation or opportunity for consultation must occur

IC 31-32-5-2

No Adverse Interest

Rarely found but ripe for litigation

Waiver of Rights Issues

State has burden of proof of compliance

Stewart v. State, 754 N.E.2d 492 (Ind. 2001)

Waiver may not be implied

Gallegos v. Colorado, 370 U.S. 49 (1960)

Waiver of one right does not waive all rights

D.D.B. v. State, 691 N.E.2d 486 (Ind. Ct. App. 1998)

Child’s later request for right is strong indication that no waiver occurred

G.B. v. State, 715 N.E.2d 951, 954 (Ind. Ct. App. 1999)

Opportunities to Challenge

Waiver of Rights Consent to Search Locations

Consent to Search Possessions

Consent to Provide Samples

Statements

Challenges to StatementsImproper Waiver of Rights

IC 31-32-5-4

Child’s physical, mental, emotional maturity

Whether child and parent understood consequences of statement

Whether child and parent were informed of the suspected delinquent act

Length of time child was in custody before consultation

Any coercion, force or inducement

Whether child and parent were advised of right to remain silent and right to counsel

Challenges to Statements

J.D.B. v. North Carolina, 564 U.S. 261 (2011)

C.J. v. State, 141 N.E.3d 830 (Ind. Ct. App. 2020)

Challenges to Statements:Recording of Juvenile Statements

Evidence Rule 617

Prohibits the admission of unrecorded statements made during custodial interrogation

Requires audio-visual recording

Only applies to felonies

Only applies in a place of detention

IC 31-30.5-1-2 & 3

Broader protection for children

Interrogation in a place of detention must comply with 617

Interrogation at a non-detention location must comply with rule 617 but can be audio only

Challenges to Statements:Juvenile Mental Health Statute

Child’s statement to a mental health evaluator may not be admitted as evidence against a child except in a probation revocation proceeding or modification of disposition

IC 31-32-2-2.5

Statute provides use immunity and derivative use immunity for child’s statements made in treatment

State v. I.T., 4 N.E.3d 1139 (Ind. 2014)

Challenges to Statements:Statements Made in Schools

Miranda warnings and Indiana's juvenile waiver statute apply when minor students are placed under custodial interrogation in schools

2 part analysis

Was the child in custody

Was the child interrogated by an officer or agent

Challenges to Statements:Statements Made in Schools

Was the child in custody?

Number and involvement of officers

What student was told about the interview

Length of interview

Student’s age

Whether student was arrested after interview

Relationship between parties

Whether setting was a traditional school-discipline environment or was police dominated

B.A. v. State, 100 N.E.3d 225 (Ind. 2018)

Challenges to Statements:Statements Made in Schools

Was the child interrogated by a officer or agent?

When police officers are present and involved in interview, custody and interrogation analyses apply

When police officers aren't present, students are not under custodial interrogation, unless school officials are acting as agents of police

"There must be some evidence of an agency relationship”

An agency relationship implicates Miranda only if the suspect is aware enough of the underlying police involvement to create a "coercive atmosphere”

D.Z. v. State, 100 N.E. 246 (Ind. 2018)

School Based Issues Related to Search and Seizure

Children normally are entitled to the same protections as adults in relation to search and seizure

Children have a reduced expectation of privacy in the school setting

Two prong test to determine reasonableness of a school search

Whether the action was justified at its inception

Whether the search was reasonably related in scope to the circumstances which justified the interference in the first place

New Jersey v. T.L.O, 469 U.S. 325 (1985)

School Based Search and SeizureSchool Resource Officers

IC 20-36-16-6

T.S. v. State, 863 N.E.2d 362 (Ind. Ct. App. 2007)

Reasonable suspicion standard applies

Does not need articulable suspicion to stop a student

Test is whether intrusion was reasonable

D.L. v. State, 877 N.E.2d 500 (Ind. Ct. App. 2007)

Pat down search for student identification was reasonable

Types of School Searches

Body and strip searches Safford Unified School District #1 v. Redding, 557

U.S. 364 (2009)

Searches of property on school grounds Backpack- R.M. v State, 20 N.E.2d 873 (Ind. Ct. App.

2014)

Car - Myers v. State, 839 N.E.2d 1154 (Ind. 2005)

Pockets - D.I.R. v. State, 683 N.E.2d 251 (Ind. Ct. App. 1997)

School required drug testing Northwester School Corporation v. Linke, 763

N.E.2d 972 (Ind. 2002)

Juvenile Competency Issues

Dusky v. United States, 362 U.S. 402 (1960)

Two-part legal standard

Client is competent only if he/she:

1. has “a rational as well as factual understanding of the proceedings against him” and

2. a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.”

Juvenile Competency Issues

In re K.G., 808 N.E.2d 631 (Ind. 2004)

A juvenile alleged to be delinquent has the constitutional right to have her competency determined before she is subjected to delinquency proceedings

The juvenile code does not provide an explicit procedure for handling juvenile competency issues

The adult competency statute does not apply to juveniles

The court believed IC 31-32-12-1 is sufficient to the task of addressing juvenile competency

Juvenile Competency Issues

IC 31-32-12-1 Mental or physical examination or treatment

1) Petition is not authorized but emergency exists

2) Petition is not authorized but continued medical care is necessary after emergency has passed

3) Petition is authorized and examination is needed to provide information for the dispositional hearing

4) Child has been adjudicated and treatment is under IC 31-34-20 or IC 31-37-19

IC 31-32-12-2

Court may order temporary confinement for 14 days, excluding weekends and holidays to complete a mental or physical examination

Juvenile Competency Issues

Ethical Issues

Client with diminished capacity

Expressed interest representation

Confidentiality

Lawyer as a witness

Practical Challenges

Unclear process

Rick of placement outside of the home

In re R.L.H., 831 N.E.2d 250 (Ind. Ct. App. 2005)

Prolonged system involvement

State v. J.S., 937 N.E.2d 831 (Ind. Ct. App. 2010)

Juvenile Defense Training Series

INDIANA PUBLIC DEFENDER COUNCIL

Joel Wieneke – jwieneke@pdc.in.govRachel Roman-Lagunas – Rachel.Roman-Lagunas@indy.govJill Johnson – Jill.Johnson@indy.gov

Juvenile Case Initiation & Procedure 3

Intro for training #2 (whoever)

Welcome and advising this is a pre-recorded training but we are available on chat to answer questions

and will post relevant resources throughout

There will be 2 code words provided in the chat that will need to be entered into the CLE form. The link

to the CLE is being posted in the chat box.

We also provide our contact information at the end and are happy to answer any questions or discuss

specific cases with you outside of today’s training

In the chat:

CLE form

(add)

Chat posts for Training #2 (whoever)

Slide #3 – Juvenile Rights and Special Issues

In the chat:

You can access a copy of the PowerPoint from today’s training at:

OR

A copy of the PowerPoint from today’s training will be emailed out to participants following the

conclusion of the presentation

In the chat:

IPDC Juvenile Defense Manual Chapter 4 – Constitutional and Statutory Rights

https://secure.in.gov/ipdc/members/files/Ch%204%20Con%20Law.pdf

Slide #9 – Right to Counsel

In the chat:

Code word #1 – Rights

CLE Form

add

Slide #15 – Role of Counsel

In the chat: (the NJDC links stalls out for me – does it work for you??)

NJDC National Juvenile Defense Standards

https://njdc.info/wp-

content/uploads/2013/09/NationalJuvenileDefenseStandards2013.pdfhttps://training.pdc.in.gov/cours

e/view.php?id=33

Slide #27 – Challenges to Statements (JDB and CJ)

In the chat:

For more information on Challenging Juvenile Statements see IPDC 1 hour CLE

https://training.pdc.in.gov/course/view.php?id=13

Slide #39 – Juvenile Competency Issues

In the chat:

Code word #2 – Issues

CLE Form

add

Slide # 41 – Closing Slide

In the chat:

Register for Juvenile Defense Training Series #3 Juvenile Case Initiation and Procedure

https://www.eventbrite.com/e/juvenile-defense-training-series-3-tickets-112856845864