Due Process Rights

Section 3.10

Lawyers for Alleged and Adjudicated Status Offenders Should Advocate for Child Clients to be Treated Fairly throughout the Court Process and for their Due Process Rights to be Protected

To effectively represent a child client in a status offense case, the lawyer must not only advocate for what the child wants, but ensure the child is treated fairly throughout the court process and that his or her rights are protected.  There are many ways the lawyer can ensure fair treatment, such as:

  • Ensuring the child is present at every court hearing.  If the child does not want to participate in court proceedings, counseling the child on the importance of his or her participation and, if appropriate, discussing available alternative means to participation (such as videoconferencing or phone).
  • Making sure that a child who is not fluent in English is provided an interpreter during all court proceedings and when the lawyer meets with him or her (if the lawyer does not speak the child’s native language).
  • Ensuring that information the court and attorneys convey, whether written or oral, is understood by the child, if he or she has low or no literacy skills or a disability that makes reading and/or comprehension difficult.  Explaining key documents, reports and court orders may be required. 
  • Advocating that any services that the court orders are appropriate for the child’s needs and that he or she can realistically comply with them (which may include ensuring that the service is offered at a time and location that is convenient for the child).
  • Ensuring that screening, assessment and services are provided in such a way that privacy is protected and results are used to help youth, rather than incriminate them or cause them to become more deeply involved in the juvenile justice system.
  • Taking into consideration gender differences, a child’s disability and culture when agreeing to court-ordered assessments, treatments or services.  (See Section 1.8, Section 1.9, Section 1.10 and Section 1.11 for more information)
  • Taking time to meet with the child regularly to get updates on case progress, counsel the child on how to proceed and get instructions on what the child wants the lawyer to advocate for in and out of court.

The lawyer must also ensure that the child’s due process rights are protected throughout the court proceedings.  This includes ensuring that the child is:1

  • Given notice of the charges against him or her and that he or she understands those charges.
  • Properly notified of court hearings and meetings.
  • Able to invoke his or her Fifth Amendment right against self-incrimination.
  • Given the opportunity to confront and cross examine witnesses.

To the extent the court threatens to incarcerate the child for violating a valid order of the court, additional due process protections must be afforded.  The child has a right to:2

  • Receive adequate and fair warning of the consequences of the violation at the time it was issued and the warning must be provided to the child, his or her lawyer and his or her legal guardian.
  • Have the charges against him or her in writing served in a reasonable amount of time before the hearing.
  • A hearing before a court.
  • An explanation of the nature and consequences of the proceeding.
  • Confront witnesses and present witnesses.
  • Have a transcript or record of the proceedings.
  • Appeal to an appropriate court.
  • Have the judge determine whether all dispositions other than secure confinement have been exhausted or are clearly inappropriate.

1 See, e.g., North Carolina Office of Indigent Defense Services. (2008). Rights and Protections Afforded to Juveniles. Juvenile Defender Manual, Chapter 2.

2 28 CFR § 31.303(f)(2) (listing numerous conditions that must be met before a child can be found to have violated a valid order of the court).