JUVENILE LAW Haley Wamstad ASA Grand Forks County

JUVENILE LAW Haley Wamstad, ASA Grand Forks County Renata Selzer, ASA Cass County June 22, 2012

Juvenile Law Issues: Preview � Juvenile Court Process � Interviewing � Transfer Juveniles to Adult Court � Extended Juvenile Court Jurisdiction

Juvenile Court Process: Cass County � Juvenile court receives police report from the PD. � Unless case is handled informally, juvenile court sends the report to SA’s office for consideration of charges. � Juvenile court sends a copy of the juvenile history sheet with the police report. � If an initial detention hearing, juvenile court emails report to SA’s office. It is not logged in at SA’s office unless juvenile court has determined that it should be referred formal charges.

Juvenile Court Process: Cass County � Secretary prints the police report and gives to receptionist to log in and assign a case # and attorney. � Attorney reviews the report and makes charging decision. � If attorney decides to file charges, the attorney fills out a “case intake” worksheet.

� � � � Juvenile Delinquency Case Intake Worksheet – 4/20/12 *Name of Juvenile: ___________________ � Burglary (FC) or (FB) � MIP/MIC (child’s DOB________) � Criminal Mischief (MB) or (MA) � Possession of < ½ oz. of Marijuana (MB) or (MA—driver) � Disorderly Conduct— 1(a) or 1(g) or 1(h) � Possession of Drug Para (MA) or (FC) � Disturbance of a Public School—(1) or (2) or (3) � Simple Assault or Simple Assault DV � DUI � Theft (MB) or (MA) or (FC) � False Info to LE (MA) � Unauthorized Use of a MV (MA) or (FC) � GSI with victim <15— 1(d) or 2(a) � Unlawful Entry into a MV (FC) or (FB) � Other: ___________________________________________ � Date: ___________________ � Location: ________________________ To-Wit Language: _____________________________________________________________________________________________________ � ROUTE TO VW (trial only) � ROUTE TO VW (full involvement) � RCF/VIS TO______ � AUDIO/VIDEO � � NOTIFY DOT � NOTIFY DJS/CCSS/Other: ______ � REGISTERABLE � EVIDENCE TO LAB ______

Juvenile Court Process: Cass County � If report is charged, then SA’s office prepares the summons and petition. The petition must note whether the child is currently in custody. � Juvenile court puts a note on the police report when it is sent over. If child is in detention, the report is marked “ASAP. ” �A detention booking sheet must accompany the police report if child is in detention. � Secretary gets the addresses for the child’s parents/guardians from the juvenile history sheet.

Juvenile Court Process: Cass County � Attorney signs petition. Secretary scans it and e-mails it to juvenile court for the referee’s signature and to be filed with the court. � Juvenile court prepares the scheduling order and then serves the summons and petition, along with the scheduling order. � Signed copies of petition and scheduling order are sent back over to SA’s office.

Juvenile Court Process: Cass County � Secretary prepares the file. � If there is a victim in the case, then secretary sends cover letter, information sheet, restitution claim form (RCF), and victim impact statement (VIS) to the victim, along with a copy of the scheduling order. ◦ Information sheet explains the purpose of the VIS, restitution, and the crime victims’ compensation fund.

Juvenile Court Process: Cass County � RCF gives victims a deadline of 14 days to complete and return the RCF to SA’s office. Victims must provide supporting documentation with the RCF (receipts, estimates, bills, etc. ) � If there is no claim for restitution, we ask that victims mark that on the RCF. That way, the issue of restitution is not held open. � When we receive the completed RCF and/or VIS, the original is filed in our working file. A copy is sent to the assigned juvenile court officer.

Juvenile Court Process: Cass County � Court filings (e. g. motions, stipulations, etc. ) ◦ If document needs a referee’s signature, then it is sent directly to juvenile court. After referee signs it, then juvenile court files it with the clerk of court. ◦ If no signature is needed (e. g. notice of hearings), then a copy is sent to juvenile court. SA’s office files the original with the clerk of court.

Juvenile Court Process: Cass County � Review of custody: ◦ Juvenile court officer or DJS caseworker files an affidavit requesting review with juvenile court. ◦ Juvenile court prepares the review of custody order and the scheduling order. ◦ Juvenile court serves the paperwork on all parties. ◦ SA’s office sends a copy of the scheduling order to the victim.

Juvenile Court Process: Cass County � Court process after delinquency petition has been filed with juvenile court: ◦ Arraignment ◦ Pretrial ◦ Trial � Review of custody court process: ◦ Arraignment ◦ Pretrial ◦ Trial

Juvenile Court Process: Cass County � Findings of Fact, Conclusions of Law, & Order: ◦ Juvenile court prepares it, files it with the clerk, and then sends a copy to the SA’s office. Secretary then closes the file. ◦ SA’s office prepares it if specific language is needed (e. g. GSI cases in which we want specific conditions of probation). ◦ SA’s office prepares pre- and post-disposition orders prohibiting contact. �SA’s office provides victim with a signed copy of the OPC.

Juvenile Court Process: Grand Forks County � Detained: hearing held w/in 24 hours ◦ If child remains in detention, SA files petition w/in 14 days � Informal: � Formal: weekly Juvenile Court staffing ◦ SA prepares petition, sent to Juvenile Court ◦ Juvenile Court: prepares summons & scheduling order; service on parties; contacts victim for restitution � Court Process: ◦ 1 st Appearance ◦ Pre-trial ◦ Trial � Review of custody: DJS or SS prepares affidavit; SA prepares Request for Permanency Hearing � Findings of Fact, Conclusions of Law, & Order: prepared by SA

Juvenile Court Process: Cass County � ANY QUESTIONS?

Interviewing Juveniles: Basic Principles � Juveniles adults. have more legal protections than ◦ “A juvenile is recognized as a member of a special class of citizens who may require additional legal protection. ” In re R. P. , 2008 ND 39, ¶ 13, 745 N. W. 2 d 642. � Right against self-incrimination applies to juvenile proceedings. ◦ “A child charged with a delinquent act need not be a witness against or otherwise incriminate oneself. ” N. D. C. C. § 27 -20 -27.

Interviewing Juveniles: Basic Principles � An extrajudicial statement is inadmissible in juvenile court if it was obtained in violation of the Juvenile Court Act or the Constitution. N. D. C. C. § 27 -20 -27.

Interviewing Juveniles: Right to Counsel �A juvenile has the right to counsel at custodial, post-petition, and informal adjustment stages of proceedings under the Uniform Juvenile Court Act. N. D. C. C. § 27 -20 -26. � Juveniles have the right to counsel during custodial interviews. In Interest of B. S. , 496 N. W. 2 d 31, 32 (N. D. 1993).

Interviewing Juveniles: Right to Counsel � Prior versions of 27 -20 -26 ◦ Provided that juvenile had right to counsel “at all stages of any proceedings. ” ◦ Court interpreted that language as “circumstances in which an officer has focused his investigation on a particular suspect and is intent on gathering evidence, not merely investigating a complaint. ” In re J. D. Z. , 431 N. W. 2 d 272, 275 (N. D. 1988). ◦ 27 -20 -26 was amended in 1995 to “custodial, post -petition, and informal adjustment stages of proceedings”

Interviewing Juveniles: Right to Counsel � Can a juvenile waive the right to counsel? ◦ Yes, if the juvenile is represented by a parent and the waiver is knowingly, intelligently, and voluntarily made. In Interest of B. S. , 496 N. W. 2 d 31, 32 (N. D. 1993). ◦ “Representation” by a parent means more than mere presence at the interview. �Parents must understand that their role is to advise the child. �Parents must take an “active role, ” rather than simply answering any questions that the officer directs towards them.

Interviewing Juveniles: Right to Counsel � Child’s statements held inadmissible: ◦ In Interest of B. S. – �Child was interviewed at police station regarding an incident involving damage to property. �Child did not have an attorney at the interview, but both of his parents were there. �At the suppression hearing, mom testified that she and her husband were not able to represent the child at the interview because they were unfamiliar with the proceedings and didn’t know what they were doing. �ND Supreme Court held that parents were not representing child because “[the mom]'s testimony reveals that neither she nor [dad] attempted to speak or act with authority on [child]’s behalf, nor did they attempt to stand in [child]'s place at the interrogation. “

Interviewing Juveniles: Right to Counsel � Child’s statements held inadmissible: ◦ In Interest of D. S. , 263 N. W. 2 d 114 (N. D. 1978) �Juvenile was initially placed in detention at his parents’ request due to damage he caused to his home. �Detectives later interviewed the juvenile at the detention center in reference to a homicide. �Juvenile confessed to the murder. �Court held that juvenile’s right to counsel was violated because he did not have an attorney present at the interview. Court noted that parents did not represent him because they had adverse interests (had requested that he be placed in detention).

Interviewing Juveniles: Right to Counsel � Traffic stops ◦ Officer is not required to contact juvenile’s parents before asking routine questions at a traffic stop (e. g. asking the driver to step out of the vehicle and inquiring whether the driver had been drinking after smelling the odor of alcoholic beverage). In re Z. C. B. , 2003 ND 15, 669 N. W. 2 d 478. ◦ Juveniles have a “limited right to counsel before deciding whether to consent to chemical testing under N. D. C. C. § 39– 20– 01. ” The child “must be given a reasonable opportunity to consult only if doing so does not materially interfere with the test administration. ” In re R. P. , 2008 ND 39, 745 N. W. 2 d 642.

Interviewing Juveniles: Right to Counsel � No right to counsel before submitting to DNA test when officer has search warrant. See State v. Poitra, 2010 ND 137, ¶ 27, 785 N. W. 2 d 225 (holding that “[t]he execution of the warrant was not a custodial, post-petition, or informal adjustment stage of the proceedings”).

Interviewing Juveniles: Right to Counsel � J. D. B. v. North Carolina, 131 S. Ct. 2394 (2011) ◦ 13 -year-old suspect in home break-ins was removed from class and called to the school conference room. ◦ J. D. B. was met by uniformed police officer, the SRO, the assistant principal, and an administrative intern. ◦ J. D. B. was questioned for 30 -45 minutes without a parent/guardian present. Was not given Miranda warnings and was not told he was free to leave.

Interviewing Juveniles: Right to Counsel � J. D. B. v. North Carolina, 131 S. Ct. 2394 (2011) ◦ J. D. B. confessed to the break-ins. ◦ J. D. B. moved to suppress his statements, arguing that he had been subject to a custodial interrogation without being read the Miranda warnings. ◦ Held: A child’s age is a factor to be considered in the analysis of whether a child was “in custody” for purposes of Miranda.

Interviewing Juveniles: Right to Counsel � J. D. B. v. North Carolina, 131 S. Ct. 2394 (2011) ◦ “[S]o long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. ” ◦ “[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. ”

Interviewing Juveniles: Right to Counsel � Bottom line: If officers want to question a child who is in custody, then the child needs to have an attorney or a parent present. If a parent is present, the child can waive the right to counsel. But the parent must actively participate in the interview and take the role of advising the child. ◦ Watch out for cases in which parent and child have adverse interests!

Interviewing Juveniles: Right to Counsel � Any questions?

Transfer to Adult Court � N. D. C. C. § 27 -20 -34 � 3 Methods ◦ Voluntary Transfer ◦ Mandatory Transfer ◦ Permissive/Discretionary Transfer

Voluntary Transfer � Child must be 16 or more years of age � Any offense � Child requests transfer

Mandatory Transfer � Child must be 14 years of age or more � The Court “shall” transfer � Probable cause for certain offenses: ◦ Murder or attempted murder ◦ GSI or attempted GSI by force or by threat of imminent death, serious bodily injury, or kidnapping ◦ Poss. w/intent to manufacture/deliver a C. S. in violation of 19 -03. 1 -23(1)(a) or (b) �Except if it is for less than 1 lbs. of marijuana ◦ Delivery of C. S. not a narcotic drug or methamphetamine – even if gratuitous & for personal use

Permissive Transfer � Child must be 14 or more years of age � “Reasonable grounds” (aka, probable cause) to believe: ◦ The child committed the offense; ◦ Child is not amenable to treatment or rehabilitation in juvenile court; ◦ Child is not treatable for intellectual disability or MI ◦ Interests of community require the child be placed under legal restraint and discipline; and ◦ If child is 14 or 15 y. o. , the offense involves the infliction or threat of serious bodily harm

Permissive Transfer (cont. ) � Burden to prove amenability to tx. or rehab. ◦ The burden is on the State, except: �If offense of manslaughter, aggravated assault, robbery, arson involving an inhabited structure, or escape involving the use of a firearm, destructive device, or other dangerous weapon = burden on child �If offense is a felony and child has two or more previous delinquency felony adjudications = burden on child � Amenability for tx. or rehab. factors (N. D. C. C. § 27 -20 -34(3)).

Process for Transfer � Petition + Notice of Intent to Transfer � 1 st Appearance � “Transfer Hearing” ◦ ◦ ◦ � If Similar to a Prelim Rules of Evidence do NOT apply Right to confront witness Can be held before a Judicial Referee Hearing is open to the public transferred, charged out in adult court � Any subsequent offense is handled in adult court

Transfer Case Law � In re R. A. , 2011 ND 119 (mandatory transfer) � In re M. W. , 2010 ND 135 (discretionary transfer) � In re M. W. , 2009 ND 55 (mandatory transfer) � In re A. E. , 1997 ND 9 (discretionary transfer) ◦ Court does not make credibility determinations on the evidence in a transfer hearing. When conflicting evidence or an issue of credibility exist, it is a question of fact for the jury. ◦ When a child reaches the age of 20, the juvenile court is without jurisdiction to issue an order transferring charges to the district court. ◦ The clause “by force or by threat of imminent death, serious bodily injury, or kidnapping” modifies both GSI and attempted GSI. ◦ Juvenile has the burden to show that he is amenable to tx. in juvenile court when the offense is conspiracy to commit armed robbery. Burden is not met when the YCC report states that juvenile is “unlikely to respond to such programs. ”

Transfer Case Law (cont’d) � In re J. K. M. , 557 N. W. 2 d 229 (1996) (discretionary transfer) ◦ Juvenile with no criminal record, is not a danger to society, and has been cooperative with treatment is “amenable to treatment” in juvenile court. � In re C. R. M. , 552 N. W. 2 d 324 (1996) � In re J. A. G. , 552 N. W. 2 d 317 (1996) ◦ Use of exclusively hearsay testimony at transfer hearing did not deprive juvenile of due process and fair treatment. ◦ Transfer affirmed when juvenile had prior delinquency adjudications, was unwilling to participate in treatment, and was in need of a high level of supervision.

Transfers to Adult Court � Any questions?

Extended Juvenile Jurisdiction (EJJ)

� Renata Selzer ◦ selzerr@casscountynd. gov ◦ 701 -241 -5850 � Haley Wamstad ◦ haley. wamstad@gfcounty. org ◦ 701 -780 -8281