Transcription

1 Pre-Adjudicatory Procedures 7 Summary of Cotets This chapter explores a variety of prelimiary matters that must be addressed prior to adjudicatio hearigs, icludig petitio filig ad cotet requiremets, the appoitmet of cousel, discovery, summos ad otices, ad motios procedures Petitios 7-2. Attorey Represetatio 7-3. Discovery 7-4. Motio Procedures 7-5. Summoses, Notices, ad Subpoeas 7-6. Preservatio of Testimoy Key Statutes 42 Pa.C.S (subpoeas) 42 Pa.C.S (petitios) 42 Pa.C.S (right to cousel) 42 Pa.C.S (other basic rights) Rules Rule 123, Pa.R.J.C.P. (subpoeas) Rules , Pa.R.J.C.P. (cousel) Rules , Pa.R.J.C.P. (petitios) Rules , Pa.R.J.C.P. (procedures followig filig of petitio) Rules , Pa.R.J.C.P. (motio procedures) Rules , Pa.R.J.C.P. (adjudicatory summos ad otice) Rules , Pa.R.J.C.P. (preservatio of testimoy ad evidece) JCJC Stadards Hearig Procedures 73

2 7-1 Pre-Adjudicatory Procedures 7-1 Petitios The hearig process is formally iitiated by the filig of a verified petitio. The required cotets of a petitio track those applicable to writte allegatios (see 4-2), icludig the followig: 1 The ame of the petitioer, together with a verificatio ad sigature. The juveile s ame, age, ad address. The time ad place the alleged offese was committed, the ames ad ages of ay cocospirators, ad either a summary of the facts sufficiet to advise the juveile of the ature of the offese alleged, together with the provisio of law violated, or else a certificatio that the juveile has failed to comply with a setece imposed for a summary offese. Statemets that the acts alleged were agaist the peace ad digity of the Commowealth or i violatio of a local ordiace, that proceedigs i the matter are i the best iterest of the juveile ad the public, ad that the juveile is i eed of treatmet, supervisio, or rehabilitatio. I additio to the above requiremets, a petitio must cotai three additioal items of iformatio: The ame ad address of the juveile s paret or guardia. If the whereabouts of the juveile s parets, guardia, or custodia are ukow, or if they reside out of state, the ame ad address of ay kow adult relative residig withi the couty (or, failig this, earest the court) may be substituted. 2 If the juveile is presetly i custody, the petitio must provide place ad time iformatio so as to permit the schedulig of a expedited adjudicatio hearig. 3 A avermet as to whether the case is eligible for limited public iformatio pursuat to 42 Pa.C.S. 6307(b)(1)(i). 4 Oly a juveile probatio officer or a attorey for the Commowealth may file a formal deliquecy petitio. Multiple offeses alleged to have bee committed by the same juveile withi the same judicial district may be icluded i oe petitio, as log as they are described separately. If all the offeses arose from the same deliquet episode, they must be combied i a sigle petitio. 5 However, if more tha oe juveile is alleged to have participated i a offese, a separate petitio must be filed for each juveile. 6 74

3 7-2 Filig ad Service of Petitios While a private citize may file a writte allegatio of deliquecy, oly a juveile probatio officer or a attorey for the Commowealth may file a formal deliquecy petitio. A couty District Attorey may opt to require that petitios be filed oly by attoreys for the Commowealth, either i all deliquecy cases or i a defied class of cases, by filig a certificatio to that effect with the Court of Commo Pleas. 7 Promptly after filig, a copy of the petitio must be served i perso or by first-class mail o the juveile ad the juveile s paret or guardia. 8 Copies must also be served o the juveile s attorey, the attorey for the Commowealth, ad juveile probatio, but this service may be by alterative meas (such as fax or ) if the idividuals agree. 7-2 Attorey Represetatio Juveiles are etitled to represetatio by cousel at every stage of a deliquecy proceedig; those who are without fiacial resources or otherwise uable to employ cousel are etitled to court-appoited cousel. 9 The first time a juveile appears before the court urepreseted, the judge must iform him of these rights i plai laguage. 10 It should be remembered that ot all juveiles uderstad the term cousel, or eve attorey, ad that eve apparetly sophisticated oes may ot fully grasp the eed for a advisor ad advocate i the situatio i which they are placed. The basic poits to be impressed upo each juveile are that havig a lawyer i court (1) is expected, (2) is free, ad (3) helps the system fuctio as it should. The court may cotiue proceedigs at ay time to eable a urepreseted juveile to obtai cousel. If a attorey is to be assiged, the assigmet must occur prior to the detetio hearig if the juveile is detaied, or otherwise prior to the adjudicatio hearig. 11 Oce a attorey has bee assiged or has etered a appearace o behalf of a juveile, represetatio cotiues util court supervisio is termiated ad the case closed, uless the attorey is permitted to withdraw (see below). 12 Waiver of Cousel A juveile may waive the right to cousel, but oly if the waiver is kowig, itelliget ad volutary ad the court has tested its basis by meas of a o-the-record colloquy with the juveile (see sidebar A Recommeded Waiver Colloquy ). 13 I geeral, as a matter both of law ad of fudametal fairess, the court should be extremely reluctat to accept a juveile s waiver of the right to cousel. The JCJC Stadards Goverig Hearig Procedures provide that a juveile may ot waive his right to cousel uless he has had the opportuity to cosult with a iterested ad iformed adult who is primarily iterested i the welfare of the juveile ad aware of the rights guarateed to him uder the costitutio. 14 Judges should be extremely reluctat to accept a juveile s waiver of the right to cousel. 75

4 7-3 Pre-Adjudicatory Procedures Judges should ot oly be skeptical regardig attempts to waive the right to cousel, but alert to the possibility of iterfamilial coflicts of iterest i this area. The right to cousel is a persoal oe, ad may be waived oly by the juveile, ot by the juveile s family. 15 Where there is reaso to believe that a paret s iterests may be i coflict with the juveile s, ad that the juveile has bee iduced to waive his right i the service of a paretal iterest, it may be ecessary to coduct separate colloquies regardig the positios of the family members with the juveile s occurrig out of the hearig of his parets. The court may assig stad-by cousel wheever a juveile waives represetatio. I ay case, the waiver applies oly to the hearig for which it is made. Not oly may it be revoked at ay time, but the court must iform the juveile of the right to cousel agai at each subsequet hearig i the case. 16 Withdrawal of Cousel Uder the Rules of Juveile Court Procedure for Deliquecy Matters, oce a appearace has bee etered or a assigmet made, a attorey s obligatio to represet a juveile exteds util the case is closed or a motio to withdraw is grated. 17 A motio to withdraw may be made orally i ope court i the presece of the juveile, or filed with the clerk of courts, with a copy to be served o the attorey for the Commowealth as well as the juveile. Uless ew cousel for the juveile has already etered a appearace, a motio to withdraw may be grated oly if good cause is show Discovery The Pesylvaia Rules of Juveile Court Procedure for Deliquecy Matters provide detailed rules ad procedures for the pre-trial exchage of evidece i juveile deliquecy cases. 19 Based geerally o the discovery provisios of the Pesylvaia Rules of Crimial Procedure, 20 they list items that must be disclosed o request, provide for additioal disclosure orders at the court s discretio, ad prescribe remedies for a party s failure to comply with the duty to disclose. Attoreys are expected to resolve discovery issues iformally. Discovery is iteded to be a iformal process. Attoreys i deliquecy proceedigs are required to make good faith efforts to resolve discovery issues iformally before resortig to motios to compel disclosure. 21 If a discovery motio becomes ecessary, it must be made, either orally or i writig, as soo as possible prior to the adjudicatory hearig. Pedig resolutio of the motio, the parties should disclose all material about which there is o dispute. 76

5 7-3 A RECOMMENDED WAIVER COLLOQUY It is recommeded that, at a miimum, the court ask questios to elicit the followig iformatio i determiig a kowig, itelliget, ad volutary waiver of cousel: Whether the juveile uderstads the right to be represeted by cousel; Whether the juveile uderstads the ature of the allegatios ad the elemets of each of those allegatios; Whether the juveile is aware of the dispositios, commuity service, or fies that may be imposed by the court; Whether the juveile uderstads that if he or she waives the right to cousel, he or she will still be boud by all the ormal rules of procedure ad that cousel would be familiar with these rules; Whether the juveile uderstads that there are possible defeses to these allegatios that cousel might be aware of, ad if these defeses are ot raised at the adjudicatory hearig, they may be lost permaetly; Whether the juveile uderstads that, i additio to defeses, the juveile has may rights that, if ot timely asserted, may be lost permaetly; ad if errors occur ad are ot timely objected to, or otherwise timely raised by the juveile, these errors may be lost permaetly; Whether the juveile kows the whereabouts of abset guardias ad if they uderstad they should be preset; ad Whether the juveile has had the opportuity to cosult with his or her guardia about this decisio. Source: Commet, Rule 152, Pa.R.J.C.P. 77

6 7-3 Pre-Adjudicatory Procedures Madatory Disclosure by the Commowealth The Commowealth is required to provide the juveile or the juveile s attorey with all of the followig upo request: 22 Evidece favorable to the juveile that is material either to adjudicatio or dispositio ad that is withi the possessio or cotrol of the attorey for the Commowealth. Ay writte cofessio or iculpatory statemet i the possessio or cotrol of the attorey for the Commowealth, or the substace of ay oral cofessio or iculpatory statemet, ad the idetity of the perso to whom the cofessio or iculpatory statemet was made. The circumstaces ad results of ay idetificatio of the juveile by voice, photograph, or i-perso idetificatio. Ay results or reports of scietific tests, expert opiios, ad writte or recorded reports of polygraph examiatios or other physical or metal examiatios of the juveile that are withi the possessio or cotrol of the attorey for the Commowealth. Ay tagible objects, icludig documets, photographs, figerprits, or other tagible evidece. The trascripts ad recordigs of ay electroic surveillace, ad the authority by which the said trascripts ad recordigs were obtaied. With respect to all of the above items, the duty to disclose is cotiuig. That is, upo the discovery of previously requested evidece, material or witess idetities comig withi the madatory disclosure rule, at ay time prior to the ed of the adjudicatory hearig, the attorey for the Commowealth must promptly otify the court ad the juveile s attorey. 23 Additioal Disclosure Orders I additio to the madatory disclosure items listed above, the court may also order either party to disclose additioal materials upo a showig that they are material to the preparatio of the case ad that the request is reasoable. 24 Such a discovery order is specifically made subject to the juveile s right agaist self-icrimiatio. The Commet accompayig this provisio lists the followig examples of evidece that may be material to the preparatio of the case: Names ad cotact iformatio for ay eyewitesses. All writte or recorded statemets, ad substatially verbatim oral statemets, of eyewitesses. All writte ad recorded statemets, ad substatially verbatim oral statemets, made by the juveile, or by co-cospirators or accomplices, whether such idividuals have bee charged or ot. 78

7 7-3 Ay other evidece specifically idetified, provided the requestig party ca also establish that its disclosure would be i the iterests of justice, icludig details regardig ay perso ivolved i the case who has received or bee promised valuable cosideratio i exchage for iformatio. As is the case with madatory disclosures, a party subject to a discovery order has a cotiuig duty to disclose additioal evidece, material or witess idetities comig withi the order. 25 Remedies for Nocompliace Wheever it appears that the Commowealth has failed to make a madatory disclosure or that either party has failed to comply with a discovery order, the court may (1) order the party to permit discovery/ispectio, (2) grat a cotiuace, (3) prohibit the itroductio of the evidece ot disclosed (assumig it is evidece other tha the testimoy of the juveile), or (4) make ay other order it deems appropriate. 26 Limits o Discovery Discovery of attorey work product legal research or documets cotaiig opiios, theories, or coclusios of the attoreys o either side or their legal staffs is ot permitted. 27 I additio, either party may apply for a protective order deyig, restrictig, or deferrig discovery, which the court may grat upo a sufficiet showig. 28 The court may permit this showig to be made wholly or partly i the form of a writte statemet to be ispected by the court. If the motio for a protective order is grated, the writte showig must be preserved uder seal for appeal purposes. Disclosure of Alibi Defese At least two days i advace of the adjudicatory hearig, a juveile who iteds to offer a alibi defese must provide otice to the attorey for the Commowealth, idicatig the place where the juveile claims to have bee at the time of the offese, the ames of all witesses who will be called i support of the alibi, ad cotact iformatio for each. 29 I the evet of the juveile s failure to comply, the court may (1) exclude all alibi evidece (except for the juveile s ow testimoy), (2) exclude oly the testimoy of witesses who were ot idetified i advace, (3) grat a cotiuace to eable the Commowealth to ivestigate the alibi, or (4) make ay other order that the iterests of justice may require. 30 While the juveile caot be preveted from testifyig as to a alibi claim, the Commowealth may cross-examie the juveile cocerig discrepacies betwee the alibi claimed at the hearig ad ay alibi otice give. 31 Followig receipt of a alibi otice but prior to the adjudicatory hearig, the attorey for the Commowealth must disclose the ames of ay witesses who will be called to disprove or discredit the alibi claim, ad provide cotact iformatio for each. 32 Otherwise, the court may (1) exclude all evidece offered to disprove the alibi, (2) exclude oly the testimoy of witesses who were ot idetified i advace, (3) grat a cotiuace to eable the juveile to ivestigate, or (4) make ay other order that the iterests of justice may require

8 7-4 Pre-Adjudicatory Procedures A party s pre-hearig requests for relief must geerally be icluded i oe omibus motio. 7-4 Motio Procedures Motios practice i deliquecy cases is govered by Rules 344 through 353 of the Pesylvaia Rules of Juveile Court Procedure for Deliquecy Matters. Motios may be oral or writte, but if time permits, writte motios are preferred. 34 They must state with particularity the grouds, ay supportig facts, ad the relief or order requested. If writte, they must be siged; ay factual basis ot already o the record must be verified to be true ad correct to the persoal kowledge, iformatio, or belief of the perso makig the motio. 35 Aswers are ot geerally required, but writte aswers are subject to sigature ad verificatio requiremets similar to those applicable to motios. 36 Geerally, uless the iterests of justice require otherwise, all pre-adjudicatory requests for relief must be icluded i oe omibus motio, to be made as soo as practical before the adjudicatory hearig, but i ay case prior to the callig of the first witess. 37 Types of relief to be icluded i a omibus motio iclude requests for cotiuace, for joit or separate hearigs, for suppressio of evidece, for psychiatric examiatio, for dismissal of a petitio, for disqualificatio of a judge, for appoitmet of a ivestigator, ad for a pre-hearig coferece. 38 The court should geerally dispose of omibus motios prior to the adjudicatory hearig, postpoig the hearig if ecessary. 39 Suppressio of Evidece A motio to suppress evidece obtaied i violatio of the juveile s rights 40 must ormally be cotaied i the juveile s omibus motio for relief. If ot, the suppressio issue will be deemed waived, uless the opportuity to seek suppressio did ot previously exist, or the iterests of justice otherwise require. 41 Followig a motio to suppress, the court must make formal fidigs of fact ad coclusios of law regardig whether the evidece i questio was illegally seized, ad issue a order gratig or deyig relief. If the court deies the motio, the decisio is fial ad bidig for purposes of the subsequet adjudicatio hearig, ad the evidece will be admitted uless the juveile ca make a showig of ew evidece i favor of suppressio that was uavailable at the time the origial motio was resolved. 42 A motio for suppressio of evidece may be joied with a motio for the retur of property illegally seized. 43 Motios for Joit or Separate Hearigs Separate petitios ivolvig oe juveile may be resolved i a sigle adjudicatory hearig if (1) evidece of each of the offeses alleged would be admissible i a hearig o the other offeses or (2) all of the offeses alleged are based o the same act or trasactio. Whe offeses are alleged i separate petitios ivolvig differet juveiles, a sigle hearig may be held if all the juveiles are alleged to have participated i the same act or trasactio or the same series of acts or trasactios. 44 Oral or writte otice of cosolidatio must be provided to the juveile(s) prior to ay joit hearig

9 7-5 Whe a cosolidated hearig is plaed, ay party may move for separate hearigs. Coversely, ay party may request cosolidatio of hearigs. Either type of request should ordiarily be icluded i a omibus motio. If the above requiremets for joit hearigs are ot met, the court must order separate adjudicatory hearigs. But eve if cosolidatio would otherwise be proper uder the rules, the court may order separate hearigs (or other appropriate relief ) if ay party would be prejudiced by a joit hearig Summoses, Notices, ad Subpoeas A writte summos compellig attedace at the adjudicatio hearig, together with a copy of the petitio, must be issued by the court ad served o the juveile ad the juveile s parets/ guardias at least 14 days i advace of the hearig (or 7 days if the juveile is detaied). 47 The summos must specify the date, time ad place of the hearig, iform the juveile of the right to cousel (ad to assiged cousel if ecessary), ad cotai a warig that failure to appear may result i arrest. 48 Service must be made i perso or by first-class mail. 49 The attorey for the Commowealth, the juveile s attorey, ad the juveile probatio office are all etitled to writte otice of a adjudicatio hearig as well. Like the summos, the otice must be served i perso or by firstclass mail at least 14 days i advace of the hearig (or 7 days if the juveile is detaied). 50 Victims must be otified of the date, time, ad place of the adjudicatio hearig. I additio, victims of juveile offeders are etitled to receive otice of all sigificat actios ad proceedigs i deliquecy cases, which would obviously iclude adjudicatio hearigs. 51 Resposibility for otifyig victims rests with the attorey for the Commowealth i some couties, ad with juveile probatios i others. Subpoeas At the request of the juveile, the juveile s parets, a probatio officer or district attorey, or ay other party, or o the court s ow motio, the court or the court clerk may issue a subpoea requirig the attedace of a witess or the productio of papers at the hearig. 52 The subpoea must idetify ad provide the address ad telephoe umber of the perso who applied for it, ad state o whose behalf the witess is beig ordered to testify. 53 It may be served via first-class mail as well as i perso or by registered or certified mail, retur receipt requested. However, oly a completed retur receipt, siged receipt of persoal delivery, or a process-server s siged affidavit of i-perso delivery costitute prima facie evidece of service. Bech Warrats The court may issue a bech warrat for the arrest of a perso who fails to appear i respose to a summos or subpoea, but i either case the warrat must be supported by a fidig that sufficiet otice was give

10 7-6 Pre-Adjudicatory Procedures 7-6. Preservatio of Testimoy Followig the commecemet of a deliquecy proceedig, the testimoy of a witess who may be uavailable for a later hearig may be take ad preserved, either pursuat to a court order or by agreemet of the parties. 55 Ay party may request the court to order the preservatio of testimoy. 56 After otice ad hearig, the court may order a witess s testimoy to be take ad preserved if it appears that the witess may later become uavailable (by dyig, becomig icompetet, or leavig the jurisdictio, for example), or if, due to exceptioal circumstaces, the iterests of justice require it. The judge must state o the record the The rules provide a procedure for preservig testimoy for a later hearig, either by court order or by agreemet. grouds for a order to take ad preserve testimoy, ad the order itself must specify the time ad place at which the testimoy will be take ad the maer i which it will be recorded, preserved, ad safeguarded util the hearig. Testimoy that is to be preserved pursuat to a court order, uless the order specifies otherwise, is take i the presece of the judge as well as the juveile, the juveile s attorey ad the attorey for the Commowealth, who are give full opportuity to examie ad cross-examie the witess ad to raise objectios. 57 However, the court eed ot make ruligs o admissibility util the testimoy is offered ito evidece at the later hearig. The parties may also agree to take ad preserve a witess s testimoy, coductig what amouts to a depositio. 58 The parties agreemet must be reduced to writig ad filed with the clerk, ad must cotai the same specifics as a court order for the preservatio of testimoy that is, the time, the place, ad the maer of recordig, preservig ad keepig the testimoy util the hearig. Testimoy to be preserved by agreemet should be take i the presece of the juveile, the juveile s attorey, ad the attorey for the Commowealth, uless the parties agree otherwise. As whe the testimoy is presided over by the court, the parties have full opportuity to examie, cross-examie, ad raise objectios. The court must rule o admissibility whe the testimoy is later offered ito evidece. The court may order or the parties may agree to the recordig of testimoy by ay meas, but if the testimoy is to be recorded o video, it must be simultaeously take dow by a steographer, ad certai basic techical requiremets must be met. 59 For example, the recordig must begi with detailed idetifyig statemets, must show the swearig-i of the witess, ad must be timed throughout by a o-camera digital clock. All objectios ad their grouds must be made o the recordig. If the testimoy is recorded without the court presidig, a log must be kept of each objectio, showig the time it was made, i order to facilitate later admissibility ruligs; i makig its ruligs o objectios, the court may either read the steographic trascript or view pertiet sectios of the video with the aid of the log

11 ENDNOTES 1 42 Pa.C.S ad Rule 330, Pa.R.J.C.P Pa.C.S. 6334(a)(3) Pa.C.S. 6334(a)(4) ad Rule 330, Pa.R.J.C.P. 4 Rule 330, Pa.R.J.C.P. 5 Rule 332, Pa.R.J.C.P. 6 Rule 333, Pa.R.J.C.P. 7 Rule 330(A), Pa.R.J.C.P. 8 Rule 331, Pa.R.J.C.P Pa.C.S Rule 151(A), Pa.R.J.C.P. 11 Rule 151(B), Pa.R.J.C.P. 12 Rule 150(B), Pa.R.J.C.P. The laguage of the rule that cousel shall represet the juveile util fial judgmet should be uderstood to mea util the court s supervisio is termiated ad the case closed. 13 Rule 152, Pa.R.J.C.P Pa. Code See Commet to Rule 152, Pa.R.J.C.P. Prior to the adoptio of the Rules of Juveile Court Procedure for Deliquecy Cases, a juveile s paret or guardia was allowed to waive the juveile s right to cousel uder 42 Pa.C.S. 6337, but that provisio has bee superseded by Rule Rule 152, Pa.R.J.C.P. 17 Rule 150(B), Pa.R.J.C.P. 18 Rule 150(C), Pa.R.J.C.P. 19 See Rules , Pa.R.J.C.P. 20 Rule 573, Pa.R.Crim.P. (Pretrial Discovery ad Ispectio). 21 Rule 340(A), Pa.R.J.C.P. 22 Rule 340(B), Pa.R.J.C.P. As the Commet to Rule 340 otes, the rule is ot iteded to limit i ay way disclosure of evidece costitutioally required to be disclosed. Accordigly, ay exculpatory evidece comig withi the rule of Brady v. Marylad, whether or ot listed i Rule 340(B), must be disclosed. 23 Rule 340(D), Pa.R.J.C.P. 24 Rule 340(C), Pa.R.J.C.P. 25 Rule 340(D), Pa.R.J.C.P. 26 Rule 340(E), Pa.R.J.C.P. 27 Rule 341(G), Pa.R.J.C.P. 28 Rule 341(F), Pa.R.J.C.P. 29 Rule 341(A), Pa.R.J.C.P. 30 Rule 341(B), Pa.R.J.C.P. 31 Rule 341(C), Pa.R.J.C.P. 32 Rule 341(D), Pa.R.J.C.P. 33 Rule 341(E), Pa.R.J.C.P. 34 See Official Commet, Rule 344, Pa.R.J.C.P. 35 Rule 344(C), Pa.R.J.C.P. 36 Rule 344(D), Pa.R.J.C.P. 37 Rules 346 ad 347, Pa.R.J.C.P. 38 Commet, Rule 346, Pa.R.J.C.P. 39 Rule 348, Pa.R.J.C.P. 40 See 42 Pa.C.S. 6338(b): A extrajudical statemet, if obtaied i the course of violatio of this chapter or which could be costitutioally iadmissible i a crimial proceedig, shall ot be used agaist him. Evidece illegally seized or obtaied shall ot be received over objectio to establish the allegatios made agaist him. 41 Rule 350, Pa.R.J.C.P. 42 Rule 350(D), Pa.R.J.C.P. 83

12 43 Rule 353, Pa.R.J.C.P. 44 Rule 351(A), Pa.R.J.C.P. 45 Rule 351(B), Pa.R.J.C.P. 46 Rule 352, Pa.R.J.C.P. 47 Rules 360, 362, ad 363, Pa.R.J.C.P. 48 Rule 362, Pa.R.J.C.P. 49 Rule 363, Pa.R.J.C.P. 50 Rules 360 ad 363, Pa.R.J.C.P P.S Pa.C.S Rule 123, Pa.R.J.C.P. 54 Rules 123 ad 364, Pa.R.J.C.P. 55 Rule 380, Pa.R.J.C.P. 56 Rule 380(A), Pa.R.J.C.P. 57 See Commet, Rule 380, Pa.R.J.C.P. 58 Rule 380(B), Pa.R.J.C.P. 59 Rule 381, Pa.R.J.C.P. 60 See Commet, Rule 381, Pa.R.J.C.P. 84