by Brittani Lewit, J.D.
Defendants in criminal proceedings have a due process right to present a meaningful defense. They have the right to see and hear the State’s witnesses, to have those witnesses cross-examined by their attorney, to present witnesses of their own, and to testify in their own defense. Juvenile defendants have these same rights in law violation proceedings. However, extra efforts need to be made to ensure that a juvenile’s right to present a meaningful defense is preserved.
Children and adolescents differ from adults in their cognitive, social, and emotional development. For this reason special care should be taken when conducting direct or cross-examination of a juvenile defendant who testifies in his or her own defense. Defense attorneys and prosecutors need to not only keep the limitations of the defendant’s vocabulary in mind, but also their potential response to examination methods and the risks associated with an aggressive examination. At last year’s National Association of Counsel for Children’s annual conference, Frank Vandervort, a clinical assistant professor of law at the University of Michigan law school, discussed issues unique to examination of juvenile defendants in his presentation entitled “The Juvenile’s Right to be Cross-Examined in a Developmentally Appropriate Fashion: The Role of Defense Counsel and the Court.”
Barriers to a Meaningful Defense
Juvenile court proceedings are designed to protect and rehabilitate children who are accused of violating or are found to have violated the law. For example, dispositions do not include jail time, but instead efforts designed to address the juvenile’s needs and those of his or her family. The unique protections afforded to juveniles in these cases should also extend to their ability to present a meaningful defense. In order to preserve this constitutionally protected right, children and adolescents need to be cross-examined in a developmentally appropriate way.
One barrier to presenting a meaningful defense is the tendency of attorneys to overestimate the development of adolescents. While we do much better with younger children, we often examine teenagers as though they are adults, and we do not always recognize when the witness does not understand our questions. Research further suggests that it is not until age sixteen that adolescents’ cognitive development is similar to adults. However, their social and emotional development is still not fully developed, contributing to a lack of impulse control. This does not take into consideration the fact that allegedly delinquent youth tend to be developmentally behind their peers; making the need for attorneys to be cognizant of an individual’s development even more important.
This lack of emotional and social development means a very aggressive, attacking cross-examination by the prosecution will likely result in a juvenile defendant either shutting down or striking back with an inappropriate outburst. While a juvenile defendant may understand the prosecutor’s question about whether he shoplifted, if the question is overly antagonistic or the examiner harassing, it will only serve to upset the defendant in a way that does nothing to further the truth finding process. This is not meant to imply that prosecutors should not be permitted to cross-examine a juvenile defendant in a way she or he finds effective, but simply that when doing so consideration should be given to the defendant’s cognitive, emotional, and social development. Otherwise a defendant’s response may be more reflective of his or her inability to handle an attacking examination than truthful testimony.
Another barrier to a juvenile defendant’s ability to present a meaningful defense is the fact that attorneys and judges tend to treat juvenile defendants differently than we treat child victims. We take a gentler approach to youth victims than alleged perpetrators. For instance, some courts have held that underage victims cannot be asked leading questions on cross-examination. An argument can be made that this same protection should be given to child defendants since their development is no greater than that of a child victim’s of the same age. There is a tendency to assume that a juvenile defendant is more mature than a child of the same age who has been a victim. This is also reflective of our tendency to forget that many juvenile defendants have themselves been victimized at some point in their lives and may be struggling with issues similar to a child victim.
The Role of the Courts
Judges have a duty to ensure that defendants’ due process rights are not violated. This duty also applies to juvenile proceedings. Federal Rule of Evidence 611 addresses the mode and order of interrogation and presentation. Rule 611(a) specifically addresses the control the court is to exercise over the examination of witnesses, stating “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Fed. R. Evid. 611(a)
Under Rule 611(a)(1) juvenile court judges arguably have a duty to ensure that the method of cross-examination is effective for ascertaining the truth from a juvenile defendant. If the prosecutor is unnecessarily attacking or aggressive, leading the defendant to shut down or lash out, the court has a duty to instruct the prosecutor to refrain from being antagonistic so that the defendant is able to give truthful testimony. The court should also pay attention to whether the examination is only serving to confuse the defendant. If this is the case, steps should be taken to adjust the examination and course of proceedings to better fit the defendant’s development. The court can also utilize subsection 2 of this rule if the method of cross-examination is only serving to cause the defendant to strike back at the prosecutor instead of answering the questions, as this only serves to waste time and does not further the truth finding process. Finally, if the prosecutor is using cross-examination as a way to harass or embarrass a juvenile defendant, the court should not hesitate to turn to Rule 611(a)(3) to address this abuse and take steps to protect the defendant and his or her right to present a meaningful defense.
The Role of the Defense Attorney before and During Trial
It is ultimately the role of the juvenile’s defense attorney to protect the juvenile from impediments to his or her due process right to present a meaningful defense. A juvenile client’s development and maturity should be kept in mind at every stage of representation.
A juvenile client’s development should be considered when reviewing discovery, in particular police interviews or interrogations of the client. When reviewing police reports the totality of the circumstances of the interrogation and the impact the interrogation method could have had on the juvenile needs to be considered. The defense attorney should ask whether protective measures for the child were ignored or undermined. For instance, was the youth permitted to have his or her parent present during the interview? Was the child permitted to talk with his or her parent? Did this lack of contact with or presence of the parent place undue pressure on the juvenile to give a confession? Most children are taught to respect authority figures, including law enforcement officers. Given the type and amount of pressure put on a juvenile, he or she may believe that they have no choice other than to tell officers what they want to hear. This may especially be true if the child or adolescent is told “if you don’t tell the truth you will be in trouble and will have to go away for a long time,” or “if you tell the truth you can go home.” Both of these statements place undue pressure on a young suspect to give an officer the answer he or she is looking for, regardless of whether that answer may be true. If when looking at the totality of the circumstances surrounding the interrogation it appears as though undue pressure was placed on the juvenile defendant, then her or his attorney should raise this issue with the court in an effort to suppress the statements all together or limit the weight the court gives to them.
Juvenile defense attorneys should also scrutinize any waiver of Miranda rights given by their young client. If a juvenile does not understand his or her Miranda rights, or what they are giving up by waiving them, then any confession or statement was arguably not given freely. If a client does not understand that he or she can request an attorney and can have one appointed if their family cannot afford one, that his or her statements can be used against them in court, or that she or he could end the interview at any time, then voluntariness of any statement or confession is an issue that should be raised as part of a meaningful defense.
In the context of trial, defense attorneys need to raise the issue of any developmental concerns with the court at the first sign of a potential issue. To do this attorneys need to be as familiar as possible with their client’s cognitive, emotional, and social abilities, as well as their background and if they have been through the juvenile court system before. If there is a concern about a client’s development and age hindering his or her ability to present a meaningful defense, such an issue needs to be addressed to provide them a reasonable opportunity to understand the proceedings.
If the decision is made that the juvenile defendant will testify in her or his own defense, their attorney needs to take special care to ensure that the client has a good understanding of how the trial will work and the roles of everyone involved. As part of preparing a client to testify, attorneys need to practice not only direct examination, but also cross-examination. One of the most important aspects of witness preparation with juvenile clients is making sure they understand that it is acceptable for them to state that they do not understand a question or do not know the answer to a question. This may help to alleviate some of the pressure a young witness may feel to give an answer even if he or she does not understand the question or does not have an answer to give. Such preparation will hopefully help the defendant’s comfort level when being examined by the prosecutor, and reduce the likelihood that he or she will shut down or lash out during their testimony.
As with any court proceeding, it is imperative that the defense attorney create a record of any events that occur and treatment of the defendant during trial. In the case of an overly antagonistic prosecutor or a harassing method of cross-examination, the defense attorney may need to add narration to the record in order to preserve the issue of whether the defendant had an opportunity to present a meaningful defense for appeal. For instance, the record may read as though a prosecutor asked, “you told the store’s manager that you did not steal anything, didn’t you”; however the black and white transcript does not relay the prosecutor’s tone, whether she or he was yelling, or the prosecutor’s physical proximity to the defendant. In such instances the defense attorney will need to specify the conduct that needs to be corrected when objecting, or asking that the record reflect a detailed account of the prosecutor’s conduct in order to create an accurate record.
Conclusion
One of the aims of our juvenile court system is to rehabilitate children and adolescents who are found to have violated the law in some way. In order to carry out this goal without violating juveniles’ rights, their right to present a meaningful defense must be preserved. In order to do this, judges, prosecutors, and defense attorneys must ensure that they are cross-examined in a developmentally appropriate way.
Brittani Lewit is an attorney at Legal Aid of Nebraska. She can be reached at belewit@legalaidofnebraska.com
