| Handling
juvenile delinquency cases is becoming a sub-specialty that requires
special knowledge of the juvenile justice system. Juvenile cases are
difficult to handle for different reasons:
(1) The juveniles often refuse to admit to their attorney any participation
in the offense despite clear guilt. (2) The parents sometimes refuse
to acknowledge their child's involvement. (3) Different rules and
court systems are involved.
By commitment and preparation, you can obtain excellent results
and satisfy clients. Too often lawyers throw up their hands when
a client presents a criminal charge. Rather than simply suggest
that a client plead guilty and avoid litigation, an attorney should
accept the challenge and apply his best legal talents to protect
the client's rights.
Attorneys should never provide legal advice over the telephone.
We do however often advise potential clients of some of the mandatory
penalties and incarceration or custodial terms that the court could
impose. This makes people realize the seriousness of the charges
against them. We direct them to bring in a copy of the complaint,
all their papers in connection with their case and any documents
they received from their state's Division of Motor Vehicles. Oftentimes
I will instruct them to write a narrative if it is a case that is
fact- specific or involves a great deal of detail, such as an assault
case. When the client is first in the office, I have him fill out
the Confidential New Criminal Case Interview Sheet. We obtain background
information such as their name, address, the offenses charged, date
of the person's arrest, other witnesses, statements given to them
by the police, their occupation and information regarding prior
criminal convictions. Our interview sheet also asks if there is
anything else important. The extent to which the client fills out
the form lets us know whether or not the client will follow instructions
and cooperate with us.
After reviewing the summons and the interview sheet, I ask a series
of questions of the client. We request the client wait until the
end of the interview before explaining their side of the story.
We also ask them if there is anything else of importance in connection
with the case that we should know. The client may have pending serious
criminal charges in another state or county. I usually open up our
statute book and show the clients the specific language of the offense
they are charged with and explain to them the maximum penalties
that could be imposed. By understanding the charges they are facing,
my clients are more likely to realize the seriousness of the offense
and pay our retainer. The ABA adopted Rules of Professional Conduct
indicate a retainer letter or written statement of fees is required
for new clients. I also provide all my clients with a brochure explaining
how to appear in court, a brochure on surcharges, a brochure on
points, and a brochure regarding alcohol counseling/substance abuse
treatment, if applicable. I recommend that my clients provide me
with a list of between 10 to 15 reasons why they should not go to
jail and why the court should impose the minimum license suspension.
This provides us with information for mitigation and penalties and
also provides information to be considered by the judge in sentencing.
I. WHO IS THE CLIENT?
The client must be the juvenile charged. It is not the parent or
grandmother who pays the bills. It is important to preserve the
confidence of the client. I let the juvenile know that they can
call us whenever they want, and we will not tell their parents anything
told in confidence. Discovery in non-motor vehicle cases is requested
in writing to the County Prosecutor, not the Municipal Prosecutor.
Motor vehicle charges alone are heard by the Municipal Court Judge
and handled by the Municipal Prosecutor.
We also send a discovery request to the police department involved.
If the Complaint was signed by a private citizen (such as harassment
or shoplifting), we will serve a specific request for discovery
upon the complainant. Under the Court Rules, discovery should be
supplied within twenty (20) days. Mark your calendar for thirty
(30) days, then call up and request discovery. If requests are ignored,
file a Motion to Dismiss Complaint or to Compel Discovery. Trial
Call is the next appearance and the defense counsel will receive
discovery, if it has not previously been received. Applicable motions
should be filed prior to the trial call: Motion to Suppress, Compel
Additional Discovery, Dismiss Complaint, etc. Juveniles have most
of the same rights under the Constitution as adults: - 4th Amendment
- No unreasonable searches - 5th Amendment - Right to Remain Silent
- 6th Amendment - Right to Attorney - 6th Amendment - Right to Cross
Examine Witnesses
Unlike adults, juveniles do not have a right to a jury trial and
do not have to post bail. It is a popular misconception that juvenile
arrests are automatically erased when the juvenile turns 18. The
criminal "charge", even if later dismissed, stays on their
record forever unless they have their attorney file a formal petition
for Expungement.
Once we receive our retainer, we begin work right away. Usually
while the client is still in the office, we prepare a discovery
letter on the computer to the prosecutor and court and hand a copy
to the client. We occasionally call the court to advise them that
we will be handling the case.
However, we usually recommend the client obtain the first adjournment
in drunk driving cases or other serious charges. It makes it easier
for our law office to obtain our own adjournment later on, if necessary,
rather than having the law office call a second time and ask for
a second adjournment. We call the court to determine the name of
the judge and prosecutor.
We require a great deal of cooperation from our clients. We have
our process servers or clients serve the subpoenas on the Division
of Motor Vehicles, insurance companies or other entities.
We require our clients to take photographs of accident sites and
prepare diagrams and provide us with the names, addresses and telephone
numbers of witnesses. Law is a business. I try to impress my clients
and hope that they will send additional clients.
II. POST INTERVIEW PREPARATION We also make a Motion to Suppress
where there is a question regarding the validity of a stop or search.
New Jersey will also permit you to make a Motion to Dismiss on De
Minimis Infractions for non-substantial offenses (i.e. shoplifting
one candy bar). Any other Motions to Dismiss should be made in writing
such as statute of limitations or lack of jurisdiction.
Oftentimes in cases that deal with just one triable issue such
as the admissibility of a blood test result regarding alcohol or
drugs, you can make a Motion in Limine or suggest a pre-trial conference.
It is often a good idea to try to have the judge decide a crucial
issue by motion in order to save you a six hour trial. If the court
rules against you in the Motion in Limine, you can enter a guilty
plea contingent upon reserving your right to appeal on that one
issue to an Appellate Court.
III. ADDITIONAL DISCOVERY PHASE In the case involving essential
witnesses, we write to the witnesses and ask them to call us so
that we can find out what really happened. If possible I have a
law clerk call up after we send the initial letter. The attorney
could not testify if the witness provides an inconsistent statement
but our law clerks could testify. I sometimes speak to the witness
myself later to make a decision to determine whether or not the
witnesses are credible. You must protect yourself from looking like
a fool. Oftentimes the clients are not telling the truth and the
witnesses are not telling the truth. Upon receiving discovery, we
forward a photocopy of all discovery to our client. We then discuss
with the client whether or not we have a reasonable prospect of
winning. It is also a good idea to know the prosecutor's position
on your case.
IV. PREPARING FOR TRIAL If it is a drug case, we may make an objection
to the entry of the lab certificate as evidence at trial. We are
also under a responsibility to provide any reciprocal discovery
to the prosecutor. Occasionally, we will call the prosecutor ahead
of time to see if a matter can be worked out or plea bargained.
We prepare a Subpoena ad Testificandum for witnesses to testify
and Subpoena Duces Tecum for witnesses to bring documents. We have
our clients hand deliver the subpoenas and write out their own check
for the subpoena fees. On the day of the trial, I bring a huge brief
case containing my equipment for battle: Court Rules, Traffic and
Criminal Code, Evidence Book, my case file, and my cumulative folder
on the topic of law (i.e. Drunk Driving, Drug Possession, etc.).
It is better to be over-prepared than under-prepared.
THE OFFENSE AND ARREST
Police are permitted to arrest if they see a crime or are provided
with information that a juvenile committed a crime. The police then
sign a Complaint Form, which later is forwarded to the Superior
Court, Family Part, in the county where the juvenile lives. Generally,
the juvenile will be released to the custody of parents or guardians.
Rule 5:21-5. A person is a juvenile for delinquency purposes until
his/her 18th birthday. For serious crimes, if the juvenile is a
threat to themselves or the community, or if the juvenile is a habitual
offender, they can be brought to the County Juvenile Detention Center.
They will remain in detention until released by the Superior Court
Judge at a recall hearing, after a probable cause hearing or at
the conclusion of the case. It is rare and serious when a juvenile
is held at the Detention Center.
MIRANDA WARNING AND CONFESSIONS
Police must provide Miranda Warning to juveniles. Parents/guardians
do not have to be present for police questioning. If a confession
was given and you need to try and preclude the admission of a confession,
the issue will be whether the waiver of Miranda Warning was "knowing
and voluntary" by the juvenile. Caselaw indicates both juveniles
and even retarded citizens can waive their right to remain silent.
DIVERSION OF CRIMINAL CHARGES
In many counties, the County Prosecutor's office screens each complaint
initially, but staff within the Family Court can make the decision
to divert the case or not. Diversion for many cases means removing
them from court altogether and sending them for total handling to
a Juvenile Conference Committee (J.C.C.) or intake service conference.
See the Criminal Justice System, "Guide for School Personnel,"
Middlesex County Prosecutor's Office, p. 20 (1996). The first rung
on the diversion ladder is the Juvenile Conference Committee (J.C.C.),
which is a town-based group of citizens who work with the juvenile
offender to devise an appropriate resolution of the case. Rule 5:25-l.
Citizen members are appointed to recommend to the court how to handle
selected juvenile cases. Members meet with the juveniles and make
recommendations which may include restitution, participation in
a job placement or community service program, counseling, or other
conditions.
An "informal" hearing is a case sent to the "informal"
calendar. There is a trial heard by either a Superior Court Judge
or a specially designated Municipal Court Judge. This involves a
Superior Court appearance. The police are subpoenaed to testify
but the County Prosecutor does not prosecute the case. At an informal,
no possibility of incarceration exists. If found delinquent (guilty),
the judge can either put the juvenile on probation or make a "deferred
adjudication." The court will impose the condition that if
the juvenile stays out of trouble for a specified period of time
(six months to a year and a half), the charges will be dismissed.
In a "deferred adjudication" the judge may direct the
juvenile to perform a job, write an essay, be on unsupervised probation,
or direct other requirements. The juvenile must earn dismissal by
fulfilling conditions such as restitution, community service, counseling,
or school attendance. For juveniles with prior charges or more serious
charges, the case is put on the formal trial calendar. These proceedings
resemble adult criminal proceedings. The juvenile must be represented
by an attorney and the state is represented by an Assistant Prosecutor.
FORMAL TRIAL If the case goes to trial, the judge serves as the
fact-finder and makes all decisions, unlike adult court where those
charged can have a jury trial. The trial is held before a Superior
Court Judge in the county where the juvenile resides. Rule 5:19-1.
Another major difference in juvenile cases is that the prosecutor
does not make binding sentencing recommendations as part of a plea
bargain. The judge has total discretion regarding the sentence imposed.
If the juvenile pleads guilty or is found delinquent (guilty), the
judge has the discretion on sentence - deferred adjudication, probation,
incarceration, residential placement, restitution, fine, etc. Criminal
Justice System, supra at 21. Relatively few juveniles are currently
incarcerated but the number may increase as legislative changes
require jail terms for juveniles who commit certain offenses such
as auto thefts and for juveniles who continue to commit more and
more heinous offenses. For the most serious crimes, the County Prosecutor
can make a motion to remove to the Adult Criminal Court. Rule 5:22-1,
Rule 5:22-2.
FIRST APPEARANCE IN FORMAL TRIAL CASES
The Court itself will send a copy of the Complaint to the juvenile's
parents and a Mandatory Notice to Appear for an Interview for Public
Defender Eligibility. The Public Defender handles only indigent
cases - juveniles whose parents are on welfare, unemployed, and
have no assets. This mandatory appearance is unnecessary once the
client retains an attorney and the attorney sends in a Notice of
Appearance.
THE TRIAL
Interview witnesses to determine if they will be credible and help
your client. Serve your subpoenas on witnesses in sufficient time
prior to trial. Have your legal research done prior to trial, such
as on constructive possession of drugs or stolen property. Over
the years I have made it a practice to build up files on particular
legal subjects with complete case law. I now have files for drunk
driving, driving while suspended, speeding, drug possession, and
careless driving. Preparation is the key to winning cases. I often
practice an opening statement and argument on a tape recorder in
my car and play it back to determine if I have all the facts at
my fingertips. Upon arrival at court, we will attempt to ascertain
if the police officer is available.
Sometimes the police officer is on vacation, retired, unavailable
or suspended and this will assist your ability to work out a satisfactory
arrangement for your client.
You also must make sure that your client is prepared and looks
neat.
The Grateful Dead and Budweiser T-shirts should be replaced with
something that looks presentable. They should wear neat clothes
- shirts with collars, dress shoes and pants. Suits or T-shirts
should not be worn. There is no prohibition against speaking with
State's witnesses. Outside of the court room, I usually call out
the name of the non-law enforcement State's witnesses to determine
if they are present and to determine what their version of the facts
are. If you know you are going to have a trial, attempt to have
the case marked ready hold for an hour later, otherwise you will
be sitting around for a long period of time. If you have an excellent
trial issue but believe the judge is going to rule against you,
bring an appeal notice with you and file it with the Court on the
record.
V. PLEA TO A LESSER DEFENSE When your case is called, speak clearly
before the court, providing your name and spelling out your name
and where you are located. The judges always like to know the names
of new or unfamiliar attorneys.
Your name is your future and announcing it also provides free publicity
for yourself. The judges and prosecutors want to move the calendar.
However, your obligation is always to your client. Sometimes you
have nothing to lose by trying a case. Courts are forbidden from
increasing penalties merely because someone excused their constitutional
right to a trial.
If your client is going to enter a guilty plea to any offense,
it is important that they understand what the offense is and put
a factual basis on the record. You will be embarrassed if your client
is pleading guilty to a drunk driving case and the judge asked your
client what he had to drink, the client insists he only had one
beer. The judge will send you back to your seat and must refuse
to take the guilty plea unless an adequate factual basis is put
on the record. Having previously obtained for my client their favorable
background, I usually put on the record reasons why the judge should
give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial
intervention, or other programs that are available to clients charged
with drug offenses who have never previously been arrested or previously
been convicted of the drug offense. Again, to avoid embarrassment,
it is a good idea to speak with the prosecutor and the police officer
because they may have a criminal abstract to indicate that the client
is not eligible for a conditional discharge type program. Letters
of reference and character reference letters are helpful in cases
where the judge has wide discretion in his sentencing. After the
client pleads guilty, it is a good idea to also ask the client on
the record if he has any questions of myself or of the court.
VI. CONCLUSION Whether or not you have a trial or there is a plea
to reduce the charge, you wish to walk out knowing you did the best
you could for your client. Even if you lose, you want to have been
such an articulate advocate that your client walks out saying my
attorney is great but the judge is wrong. Always be innovative and
prepare new arguments. Plea bargaining varies from state to state
so you must be aware of where it is permitted. You must be able
to show your ingenuity and desire to win.
We handle a substantial amount of municipal court and personal
injury cases. If you have an overly difficult case and have problems
handling it, your client may benefit if the case is referred to
a more experienced attorney.
IMPORTANT LAWS MOST JUVENILES DON'T KNOW ABOUT
Assault: Any assault committed against any teacher, school board
employee, school board member, or school administrator is an aggravated
assault. NJSA 2C:12-1 et seq.
Graffiti: Penalties are increased for graffiti, and include driver's
license loss for juveniles, P.L. 1995 c. 251. Amends NJSA 2C:17-3
(Criminal mischief and other statutes). In the case of a person
who at the time of the imposition of sentence is less than 17 years
of age, the period of the suspension of driving privileges authorized
herein, including a suspension of the privilege of operating a motorized
bicycle, shall commence on the day the sentence is imposed and shall
run for a period of one year after the day the person reaches the
age of 17 years. If the driving privilege of any person is under
revocation, suspension, or postponement for a violation of any provision
of this Title or Title 39 of the Revised Statutes at the time of
any conviction or adjudication of delinquency for a violation of
any offense defined in this section, the revocation, suspension,
or postponement period imposed herein shall commence as of the date
of termination of the existing revocation, suspension, or postponement.
Any person convicted of criminal mischief involving graffiti may
be required to pay to the owner monetary restitution and perform
community service and remove graffiti.
Drugs: Sample Mandatory Penalties for Juvenile - Possession of
Small Amounts of Marijuana: -Suspension of Driver's License: 2C:35-16
Six months to two years from date of sentence. -DEDR Penalty $500
required under NJSA 2C:35-15a. This $500 penalty is required even
in juvenile cases, as required by statute. State in Intent of LM
22 NJ Super 88, (App. Div. 88) court denied 114 NJ 485
(1989) -Drug Lab Fee $50 2C:35-20a -VCCB $50 according to 2C:43-3.1a(2)(o)
-Safe Streets - Fee due upon conviction, PTI or CD $75
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