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Contents : THE ADJUDICATION HEARING NUTS AND BOLTS OF JUVENILE LAW CONFERENCE AUSTIN TEXAS August 12-14 2009 Stephanie L. Stevens Clinical Professor of Law St. Mary s University 2507 N.W. 36th Street San Antonio TX 78228 (210) 431-5710 sstevens@stmarytx.edu I. The Scope of the Paper As this paper is designed to cover the juvenile adjudication hearings little to no mention of pretrial matters disposition hearings or appeals will be discussed. II. The Supreme Court s View of Juvenile Adjudication Hearings and Constitutional Protections In 1967 the Supreme Court looked at the informality of the juvenile system and began to question the fairness of it. The landmark case of In re Gault revamped juvenile courts and held that children had a Fifth Amendment privilege against self-incrimination at an adjudication hearing the same way adults did at trial. Additionally children were granted the right to counsel confrontation and cross-examination of witness and a Due Process right to notice of charges pending. All of these rights were limited by the Supreme Court to the adjudication phase of the juvenile proceedings. In re Gault 387 U.S. 1 (1967). Further review by the Supreme Court required states to prove charges against children beyond a reasonable doubt (In re Winship 397 U.S. 358 (1970)) and gave children double jeopardy protections (Breed v. Jones 421 U.S. 519 (1975)). The Court however refused to find a right to a trial by jury for children. McKeiver v. Pennsylvania 403 U.S. 528 (1971). III. Texas s View of Juvenile Adjudication Hearings and Constitutional Protections Texas has not only followed the Supreme Court s mandate for the minimum amount of constitutional protection but expanded on it. A. Self-incrimination This protection is codified for juveniles in 54.03 (e). A juvenile is afforded this protection in both delinquent conduct and CINS (child in need of supervision) cases. An extrajudicial statement taken in violation of any of the provisions of Title 3 the Texas Constitution or the United States Constitution is not admissible. Perhaps even more importantly an out of court statement can not support a finding of delinquent conduct or CINS unless the statement is corroborated at least in part by other evidence. 54.03 (e). 2 B. Right to Counsel 51.10 states that children have the right to representation by an attorney at all stages of proceedings under Title 3 of the Family Code. In fact a child cannot waive an attorney in a transfer adjudication disposition probation revocation or Chapter 55 (mental illness) hearing. Moreover juveniles are entitled to effective assistance of counsel. In re K.J.O. 27 S.W.3d 340 (Tex. App. Dallas 2000 rev. denied). C. Proof Beyond a Reasonable Doubt Children are presumed innocent. 54.03(f). All delinquent conduct and CINS cases must be proven beyond a reasonable doubt by the state. 54.03 (f) And the jury s decision on this must be unanimous. 54.03( c ) see In re M.P. 126 S.W.3d. 228 (Tex. App. San Antonio 2003 no pet.)(error not to require unanimous verdict on at least one of four theories submitted to jury on charge of aggravated sexual assault). D. Double Jeopardy Jeopardy is found to have attached in a juvenile proceeding when the jury has been empaneled and sworn. In re C.J.F. 183 S.W.3d 841 (Tex. App. Houston 1st Dist. 2005 no pet.). E. Jury Trial Although not mandated by the constitution of the United States Texas requires that juvenile adjudication hearings shall be before a jury unless waived in accordance with 51.09. If the case is a determinate sentence one then a 12 person jury is required. New legislation allows for a six person jury in a misdemeanor trial even if the case is tried in district court. Note that a child is only entitled to a jury at a disposition hearing if the case is a determinate sentence case. To ensure the right to have a jury make the sentencing decision the child must make an election in writing before the beginning of voir dire. 54.04 (a). F. Speedy Trial Various courts have held that juveniles have a constitutional right to a speedy trial. Grayless v. State 567 S.W.2d 216 (Tex. Crim. App. 1978) In re J.W.G. 988 3 S.W.2d 318 (Tex. App. Houston 1st Dist. 1999) In the Matter of D.M. 611 S.W.2d 880 (Tex. App. Amarillo 1980). The test established in Barker v. Wingo 407 U.S. 514 (1972) is utilized. It consists of four parts: 1) the length of delay 2) the reason for the delay 3) the child s assertion of his right to a speedy trial and 4) the prejudice to the child from the delay. IV. Basics of the Adjudication Hearing A. Conduct Covered Juvenile court has exclusive jurisdiction over children between 10 and under 17 for the following types of conduct: 1. Delinquent Conduct is the first broad category and it is subdivided into 3 main areas: a. Violations of state or United States law other than traffic laws that are punishable

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