The Right to an Attorney in California Delinquency Cases
The assistance of a skilled, knowledgeable attorney helps to assure the protection of a young person’s legal rights and helps the person to make well-informed decisions about what to do. This assistance has been recognized as a fundamental constitutional right by the United States Supreme Court.
All youth have the right to an attorney, free of charge, to represent them upon the filing of charges in court. This right to an attorney continues throughout the court process until the judicial officer concludes the case. In 1967, the U.S. Supreme Court recognized in the In re Gault case that, The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’”
It is important for youth to understand that before they get to court, they need to clearly speak up to say that they want an attorney. For example, if the police want to ask them questions, youth should ask for an attorney — and have the attorney present — before even deciding whether to give any answers. Once youth get to court, if they don’t already have an attorney, the judge must appoint a lawyer to represent them.
Click here to read “What to Do If Your Child is Arrested,” a fact sheet for parents.
For more information about the actual language of the relevant laws, click here.
If you (or someone you are concerned about) are wrongly being denied the right to an attorney, contact the head of your local public defender office or the person in charge of juvenile defense services in your county to ask for assistance.
“The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.”
Kent v. United States (1966) 383 U.S. 541, 561
The In re Gault case involved Gerald Francis Gault, a 15 year-old boy who was taken into police custody in Arizona one afternoon after a neighbor complained that he and another boy had made a lewd phone call. When Gerald was taken into custody, both his parents were at work and no one advised them that their son had been arrested. Gerald was taken to the Children’s Detention Home without his parents’ knowledge. They did not see the petition that the police officer filed with the court until more than two months later. At the time, the court was not required to provide a lawyer or even to fully hear Gerald’s side of the story before acting with in loco parentis authority — on the judge’s own will — to “protect” him.
At Gerald’s court hearing, the neighbor who had filed the complaint against him was not present to be questioned. With no lawyer to advise him about the potential consequences of his statement, Gerald admitted making the lewd statements. The judge in the case then sent him back to the Children’s Detention Home. No transcripts, recordings, or memoranda of the proceedings were made.
The penalty for an adult making the same type of lewd phone calls that Gerald had been accused of making was $5 to $50. However, because Gerald had been on probation for a different incident two years earlier (in which another boy he was with had stolen a baseball glove and lied to the police about it), Gerald was ordered to be held in custody at the State Industrial School for the period of his minority, that is, until age 21 unless sooner discharged. He spent over two years in custody for the lewd phone call until the U.S. Supreme Court intervened.
In its ruling on In re Gault, the U.S. Supreme Court determined — for the first time — that juvenile court cases are adversarial criminal proceedings and that this gives youthful offenders the right to a defense lawyer; the right to know the charges filed against them; the right to question the people accusing them; the right not to admit or speak about the charges (privilege against self-incrimination); and the right to present their side of the story in a court hearing.
Triggering the “Right to Counsel”
In California, a youth’s “Right to Counsel” can be triggered in two different ways:
Since January 1, 2018, law enforcement must provide an opportunity for youth under 16 years of age to consult with counsel prior to waiving their Miranda rights.
- This law does not apply in cases where there are exigent circumstances or in cases where the probation officer is questioning the youth.
- Each county in California has a system to ensure that attorneys are available for these Miranda consultations, and law enforcement should be aware of how to obtain counsel for the county where the interrogation will occur.
Youth 16 and 17 years of age must demand an attorney.
- Under the law, a youth must “unequivocally ask” for an attorney in order for law enforcement to honor the request.
- Requests to speak to a parent or other authority figure are insufficient for law enforcement to stop questioning of youths aged 16 and 17. For these youth, the request must be specifically for an attorney.
- Upon Filing of a Juvenile Delinquency Case
Regardless of the financial circumstances of the young person, the court must appoint counsel for the youth unless the youth’s family has already made other arrangements.
- Court appointed counsel occurs after charges have been filed.
- It is important to understand that the attorney appointed works for the youth, not the youth’s family, and the attorney cannot disclose confidential discussions without permission of the youth.
- The appointed attorney will remain with the case all the way through the court process and throughout the period of juvenile court jurisdiction, including being available to the youth:
- If the youth is not receiving services the court ordered
- If the youth is subjected to probation violation proceedings
Important Things to Know About a Youth’s Right to Counsel
Unfortunately, many youth (and the adults advising them) do not understand the importance of the right to counsel. Youth may try to explain their way out of a situation, or make statements thinking that if they talk, they will be able to go home. Additionally, police are allowed to use trickery and lies to obtain statements from youth — and they do. Police may take a youth’s statements about what happened out of context. Police may also inaccurately record the youth’s statement. It is very difficult to undo later the damage this causes for the youth. Youth should also be aware that anything they tell their probation officer may be used against them.
Under California law, youth have the right to make a telephone call to an attorney within an hour of being taken into custody. It is important to understand that youth can ask to speak to a lawyer while in police custody and that upon their request for an attorney, generally the police are required to stop asking any questions of them.
If the young person’s family has not hired an attorney to represent the youth, the court normally appoints the public defender’s office. The public defender’s office represents youth in most of the cases. In counties where there is no public defender, the court may appoint an attorney off a panel of attorneys that contract with the county, or a lawyer or law firm that accepts cases by appointment of the court. Note that:
- The court may advise parent(s) that if it later turns out that the family has the financial ability to hire an attorney, the parent(s) may be billed for the attorney’s services.
- The parent has the right to a hearing on ability to pay and to be represented by an attorney (again, free of charge) during the billing process to show that they actually did not have the financial ability to pay.
What to Expect from the Attorney
Under California law, counsel appointed to a youth will:
- Represent the young person, not his or her parents
- Have a duty of confidentiality to the youth
- Not be able to disclose anything the young person has said without permission from the youth
- Represent the wishes of the young person on:
- whether to admit or deny the charges,
- whether to have an adjudication (trial) on the charges
- whether to take the stand to testify in the case
- Advise the child and make sure that any decisions the youth makes are well-informed
- Talk to the youth before each hearing
- Maintain contact with the child even after the court process is over, in the “post-dispositional” stage when the youth is in probation or in placement of the Division of Juvenile Facilities
- Continue to represent the youth unless the court terminates the appointment or appoints another attorney
- Seek out the help of experts — including social workers, mental health professionals, educators, and others — as needed to prepare the case
- Ask the court to appoint experts and, when needed, obtain payment for these experts
- Investigate and prepare the case
- Make well-informed decisions
- Participate in initial and ongoing specialized training to represent juveniles