1. Lisa Smith-Butler
Children & the Law
Spring 2013

2. JUVENILE PROCEEDING CRIMINAL PROCEEDING
 Respondent  Defendant
 Taking into Custody  Arrest
 Petition for Delinquency  Charged with a Crime
 Detention Hearing  Bail Hearing
 Adjudicatory Hearing
 Admits the Facts of the  Trial
Petition  Pleads
 Finding of Delinquency  Verdict
 Dispositional Hearing  Sentencing
 Commitment to Treatment  Jail

3.  Common Law
 Juveniles over 7 treated as adults.
 Juveniles under 7 treated as incapable of forming
criminal intent.
 12 year old hung as punishment.
 1899
 Illinois/1st Juvenile Court
 1925

4.  Create a separate court for children under the
age of 16 who were neglected, dependent, or
delinquent;
 Change the reason for the court from
punishment to rehabilitation;
 To avoid stigmatizing a juvenile, court
proceedings would be confidential;
 Juveniles were to be kept apart from
incarcerated adults; and
 Juvenile court proceedings were to be informal
rather than following and using the legal model.

5.  In Re Gault
 Gault sentenced to six years in detention home
via Arizona’s juvenile justice system.
 An adult could have been sentenced to no more
than 2 months in jail and fined between $5.00 to
$50.00 for having committed Gault’s offense.

6.  Whether the due process clause of the 14th
Amendment requires that constitutional
protections, such as notice, cross
examination, counsel, and self incrimination,
be made applicable in the adjudicatory phase
of a juvenile proceeding?

7.  During delinquency adjudicatory
proceedings, the due process clause of the
14th Amendment requires that proceedings
that may result in the child’s freedom being
curtailed require:
 notice of the charges;
 right to cross examine and confront witnesses;
 right to invoke the privilege against self
incrimination; and
 right to counsel.

8.  Began what critics called the
constitutionalization of the juvenile justice
system; or
 What advocates viewed as the application of
fundamental fairness in juvenile proceedings.

9.  What are the differences between the
juvenile justice process and criminal
proceedings for adults?

10.  Whether a juvenile will be tried as a juvenile
within the juvenile justice system and subject
to a juvenile court disposition or whether the
juvenile will be tried as an adult in a criminal
court and subject to adult sanctions?

11.  Legislative
 Exclude certain offenses committed by children of certain ages
from jurisdiction of the juvenile court.
 Prosecutorial
 The prosecutor decides in which court to charge the juvenile.
 Concurrent
 The juvenile and criminal court have jurisdiction.
 Juvenile Court Waiver
 The juvenile judge decides whether to waive jurisdiction and
transfer the juvenile up to criminal court.
 Reverse Certification
 The judge in the criminal court decides to transfer down the
juvenile to juvenile court.

12.  46 states provide for the waiver of jurisdiction
over the juvenile by the juvenile court judge.
 When deciding to waive jurisdiction over the
juvenile and transfer to criminal court,
legislatures understand Kent to constitutionally
require:
 waiver hearing;
 providing the juvenile and attorney access to any
records examined by juvenile judge; and
 providing a written statement of reasons for the
waiver by the judge.

13.  South Carolina’s State v. Pittman indicates that the
juvenile judge should consider the following criteria when
deciding whether to waive jurisdiction over a juvenile:
 seriousness of alleged offense;
 whether the offense was committed in a violent, willful, or
premeditated manner;
 whether the offense was committed against a person or
property;
 the prosecutive merit of the case;
 the desirability of trial and disposition in the same court;
 the sophistication and maturity of the juvenile;
 the record and previous history of the juvenile; and
 whether the public can be protected and whether the juvenile
can be rehabilitated.

14.  Intake
 Period between being taken into custody but before
formal court proceedings begin.
 Diversion
 To what?
▪ social agencies
▪ church programs
▪ Outward Bound
 Criteria to decide whether to divert?
▪ child’s attitude toward the offense
▪ child’s record
▪ offense

15.  Constitutionally permissible (Schall v. Martin) & bail not
required;
 Probable cause is necessary to detain;
 Counsel is required since juvenile faces loss of liberty (see
Gerstein v. Pugh)
 Incarceration, separate from adults, is required;
 Length of time for detention is limited;
 Juveniles do have the right to a speedy trial; criteria to
evaluate “speedy” are from Barker v. Wingo and include:
 length of the delay;
 reason for the delay;
 prejudice to the juvenile because of the delay; &
 seriousness of the offense.

16.  Most states’ statutes state that “taking into
custody” is not an arrest.
 To “take a juvenile into custody” usually requires
that the juvenile be found to be violating a
criminal law or ordinance.
 Special treatment is required once a juvenile is
taken into custody and includes:
 notification of parents;
 incarceration separately from adults;
 limited taking of fingerprints and photographs; and
 maintaining separate and confidential records.

17.  While taking into custody does not constitute
an arrest, the law of arrest is applied to
juveniles.
 Thus the Fourth Amendment’s instructions
regarding search and seizures, except in the
public school setting, are applicable to
juveniles.

18.  Probable Cause & Warrant
 Stop & Frisk
 Informant tip & evasive action
 Consent
 3rd Party Consent

19.  While probable cause is required to search
adults, reasonable suspicion will suffice to
search within the public school setting. (New
Jersey v. T.L.O.)
 Action (1995) permitted schools to require
student athletes to submit to drug testing if the
student wanted to participate in after school
athletics.
 Earls expanded this, allowing schools to drug
test all students who want to participate in
extracurricular activities.

20.  Miranda v. Arizona requires that individuals
taken into police custody be given the
following warnings before a police custodial
interrogation can begin:
 right to remain silent;
 anything you say can and will be used against you;
 right to an attorney; and
 if you cannot afford an attorney, one will be
appointed for you.

21.  Miranda focuses on the 5th Amendment
privilege against self incrimination and the 6th
Amendment right to counsel rather than
trying to determine the voluntariness of an
individual’s statement.
 Miranda is applicable to juveniles.

22.  When is a juvenile said to “knowingly and
intelligently” waive his Miranda rights?
 Consider:
 Age of juvenile
 Education of juvenile
 Juvenile’s understanding of the charges
 Whether juvenile is allowed to consult with friends
and relatives
 Methods used in the interrogation
 Length of the interrogation

23.  Does asking to speak to a probation officer
invoke the 5th amendment’s privilege against
self incrimination? No. See Fare v. Michael C.
 Many states do provide greater rights than the
Court’s understanding of the Constitution.
 Even if juvenile knowingly and intelligently
waived Miranda rights, Leon says that there is
still a need to inquire if a juvenile’s confession is
voluntary.
 The State can prove that a confession was
voluntarily made by a preponderance of the
evidence. See Lego v. Twomey.

24.  In McKeiver, the Supreme Court indicated
that juveniles were not constitutionally
entitled to a jury trial.

25.  While the Sixth Amendment guarantees
adults accused of a crime the right to a
speedy, public, and impartial jury trial,
 McKeiver indicates that a jury trial is not required;
 public trials are typically not required since
juvenile proceedings should be confidential but
that depends upon the state. See J.S. (VT) and
RLR (AL); and
 a speedy trial, though not public and without a
jury, is required. See In Re Thomas J.

26.  In Re Causey indicated that it is
constitutionally required that a juvenile be
granted the right to plead “not guilty” by
reason of insanity if not competent at the
time the delinquent act was committed.
 Juveniles must also be competent to stand
trial, i.e. “…present ability to consult with his
lawyer to a reasonable degree of rational
understanding.” See Dusky v. U.S. and

27.  Since the function of the juvenile court was
rehabilitation rather than punishment,
disposition favors rehabilitation; however, “get
tough” legislation by states has shifted the
emphasis from rehabilitation to proportionality,
i.e. make the punishment fit the crime.
 Appellate courts will generally uphold a juvenile
court’s disposition, including institutional
commitment, unless there is a showing of
“abuse of discretion.” See In Re Gregory S.

28.  Capital punishment or the imposition of the
death penalty for an act committed by a
juvenile under the age of 18 violates the 8th
Amendment’s prohibition against cruel and
unusual punishment. See Roper v. Simmons.
 Life in prison without the possibility of parole
for an act committed by a juvenile under the
age of 18 violates the 8th Amendment’s
prohibition against cruel and unusual
punishment. See Miller v. Alabama.

29.  After Gault, what are the differences between
the juvenile justice system and the criminal
justice process?