NCJ Number
64750
Date Published
1979
Length
6 pages
Annotation
THE ATTORNEY'S DILEMMA IN DEFENDING JUVENILE DELINQUENTS IS PRESENTED AND A SOLUTION IS SUGGESTED.
Abstract
AS A RESULT OF THE GAULT DECISION (1967), CHILDREN BEFORE JUVENILE COURTS ON A CHARGE OF DELINQUENCY HAVE TO BE GIVEN TIMELY NOTICE OF CHARGES, NOTIFICATION OF THE RIGHT TO COUNSEL AND OF THE PRIVILEGE AGAINST SELF-INCRIMINATION, THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES, AND THE RIGHT TO REMAIN SILENT. IN IMPLEMENTING THE DUE PROCESS RIGHT OF JUVENILES, THE PROBLEM FREQUENTLY ARISES THAT A LAW GUARDIAN REPRESENTING THE YOUTH FINDS HIMSELF ARGUING FOR THE DEFENDANT'S FREEDOM, WHEN IN REALITY A CONVICTION (LEADING TO TREATMENT AND OTHER EDUCATIONAL MEASURES) WOULD BE IN THE DELINQUENT'S OWN BEST INTEREST. IF THE LAWYER FAILS TO DEFEND HIS CLIENT TO THE BEST OF HIS ABILITY, HE IS ACTING UNETHICALLY. THE ADVOCATES OF THIS PRINCIPLE OF BEST DEFENSE OVERLOOK THAT THE ADVERSARY PROCEDURE ACTUALLY APPLIES TO ADULTS. MOREOVER, NUMEROUS DIFFERENCES EXIST BETWEEN ADULT AND JUVENILE DEFENDANTS: (1) THE DEPENDENCE OF JUVENILES ON THEIR PARENTS, (2) THEIR INCOMPLETE COGNITIVE DEVELOPMENT, (3) THEIR INCOMPLETE BRAIN DEVELOPMENT UNTIL THE AGE OF 18, (4) ADOLESCENT STRUGGLES WITH INDIVIDUATION, (5) FREQUENT GUILT FEELINGS RESULTING FROM THIS STRUGGLE, (6) THE NEED TO HAVE STRICT LIMITATIONS, AND (7) THE UNRELIABILITY OF JUVENILE VERBAL EXPRESSIONS. TO PROTECT JUVENILES' RIGHTS TO DUE PROCESS AS WELL AS THEIR BEST INTERESTS, EACH JUVENILE SHOULD BE REPRESENTED IN COURT BY A LEGAL GUARDIAN WHO IS QUALIFIED TO DETERMINE WHAT WILL BENEFIT THE JUVENILE. SINCE LAWYERS HARDLY POSSESS THIS QUALIFICATION, PSYCHOTHERAPISTS, PSYCHOLOGISTS, OR SOCIAL WORKERS (WITH SOME COURT EXPERIENCE) SHOULD REPRESENT JUVENILES IN FAMILY COURTS. REFERENCES ARE PROVIDED. (SAJ)