China Criminal Defense Manual - Special Considerations in Juvenile Cases

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Introduction

Representing children is a specialized area of criminal defense work and juvenile cases often constitute a significant percentage of a legal aid lawyer's caseload. CPL Article 34 states that if the defendant is a minor and no one has been entrusted to defend him "the People's Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender." The purpose of this section is to address some of the unique issues that may arise when representing juvenile defendants.

Who is the Client: Parent or Child?

One of the most common issues that may arise when representing a juvenile client is a conflict of interest between the minor client and the client's parents. For example, the child may not be willing to express remorse for the crime while his parents insist that he must do so. When these types of situations occur, who does the criminal defender represent: the parents or the child?

The answer to this question is that the criminal defender represents the child. The criminal defender should inform all parties (including the parents) that he has been appointed by the court to represent the child. If there is a disagreement between the child and his parent or guardian, the attorney is required to serve exclusively the interests of the child. The lawyer should advise the parents that they should consider hiring an attorney who can represent their interests but emphasize that as the child's attorney, he cannot serve the parents' interests if they conflict with the child's interests. Because the child is the client, the lawyer must respect the child's confidentiality at all times.

Counseling the Child Client

A lawyer engaged in juvenile court representation often has occasion to counsel the client and, in some cases, the client's family with respect to non-legal matters. This responsibility is generally appropriate to the lawyer's role and should be discharged, as any other, to the best of the lawyer's training and ability.

The counsel must arrange for prompt and timely consultation with the client, in person, in an appropriate and private setting. The counsel should assure him/herself that the client is competent to participate in his/her representation, understands the charges, and has some basic comprehension of criminal procedure. The client must be given adequate time to fully apprise the counsel of the evidence and defenses in his/her case. The counsel must also arrange for prompt and thorough consultation with the parent or guardian, and this consultation should be within parameters established by the client.

Interviewing the Child Client

Interviewing child clients can be much more challenging than interviewing adults. The following list contains some suggestions that may make client interviews more effective.

  1. Take some time to establish rapport with your child client. Let the client know that you care about what he thinks and what happens to him.
  2. Keep your client informed. Children sometimes have a very different perception of time than adults do and what may not seem like a long time to an adult can seem to be a very long time to a child. Depending on the child, you may have to spend considerably more time communicating with him in person than you would with an adult client who is facing the same charges.
  3. Use simple phrases, for example, "What happened?"
  4. Use proper names and places instead of pronouns: for example, "What did Wang do?" instead of "What did he do?"
  5. Use concrete nouns instead of abstract ones: for example "Internet cafe" instead of "place".
  6. Try to ask about one main idea in each question or to get the client to tell you about one main idea in each answer that he gives you.
  7. Avoid using negatives.
  8. Avoid using legal words. Be sure to explain legal terms in simple words and phrases that the child can understand.
  9. Listen carefully for possible miscommunications. If the child's answers are inconsistent or do not make sense, you need to determine whether there is a problem with how you phrased the question, whether you assumed that the child has knowledge that he does not have, or whether the child is interpreting the question literally.
  10. Make sure that you and the child give the same meanings to words. If you are not sure, ask the child what he means when he uses a word in a way that makes the word's meaning unclear.
  11. Avoid asking the child about abstract concepts and asking the child questions of belief.
  12. Let the client tell you his story in his own words. Ask simple follow-up questions to make sure that you understand the child's meaning.
  13. Encourage the child to tell the truth, even if it means that he implicates co-defendants. Children can be very loyal to their friends even when their friends do not deserve it and may be reluctant to discuss a co-defendant's role in a crime. Gently advise the child that the co-defendant friend will probably not be as loyal to the child. Also, remind the child that he must tell the truth and that telling the truth may enable him to seek a mitigated punishment such as suspended sentence.
  14. Remind the child that he must not discuss the case with anyone except you and the authorities. This includes speaking about the case with his family members, potential witnesses, friends and co-defendants.

Investigating the Case

It is the duty of the lawyer to conduct a prompt investigation into the circumstances surrounding the case, and to explore all avenues that might uncover information about who should bear responsibility for the alleged acts and conditions. The investigation should always involve efforts to secure information in the possession of prosecution, law enforcement, education, and other authorities. The defense lawyer has a duty to investigate regardless of the client's admissions, statements of fact establishing responsibility for the alleged acts, or any stated desire by the client to admit responsibility for those acts.

Conducting a thorough investigation and developing a theory of the case that focuses on both the crime and the resolution of the case is especially critical when representing a child. Children frequently believe that if they maintain their innocence, do not admit responsibility, and evade punishment that they are lying or being dishonest. The criminal defender must explain to the client that the prosecution has the burden of proving that the facts are clear and that the evidence is reliable and sufficient before the People's Court can find him guilty of committing the offense. (CPL Article 162).

Another important thing to remember when investigating a juvenile case is that the Criminal Law states that children who are between the ages of 14 and 17 "shall be given a lighter or mitigated punishment" (CL Article 17). This means that even children who commit serious crimes are entitled to receive a lighter or mitigated punishment (CL Article 17). In developing the theory of the case, the defense lawyer should thus present a comprehensive portrait of the client to the court so that it can fulfill its legal obligation to give the child a lighter or mitigated punishment.

Capacity

When representing a juvenile client, the criminal defender must always consider whether the child had the capacity to form the intent required to commit the crime with which he is charged. CL Article 17 makes 16 years the presumptive age at which children are old enough to face criminal responsibility for their actions. Article 17 also requires children who are 14 or 15 years old and who commit serious crimes such as intentional homicide, rape, robbery, drug-trafficking, arson, explosion or poisoning, or who intentionally hurt another person and cause serious injury or death to be held criminally responsible.

If the child is 16 or 17 years old or is a 14 or 15 year old juvenile who has committed a serious crime, the criminal defender must determine whether he was able to form the intent required to commit the alleged crime. Determining whether or not the child had sufficient capacity requires the evaluation of a mental health professional. Although the criminal defender can (and should) obtain a great deal of information about the child's mental limitations from interviewing the child's family members, doctors, and school officials, and by obtaining any records they may have, the criminal defender must also seek the court's permission to retain a mental health expert witness who can testify in court that the child lacked the capacity to form the requisite intent to commit the alleged offense.

The criminal defender should raise the capacity issue even if CL Article 17 states that the child is old enough to face criminal responsibility. Even if the child is old enough to be held criminally responsible for his actions, he may function at a much lower age level than other children of the same age because of mental retardation, developmental delays that occurred during early childhood, learning disabilities, or other cognitive impairments.

Drafting a Winning Mitigation Sentence Plan to Resolve Your Child Client's Case

The criminal defender representing a child client must always remember that children between the ages of 14 and 17 "shall be given a lighter or mitigated punishment" (CL Article 17). Children who are 14 and 15 years old and who have not committed serious crimes may even be able to avoid criminal punishment completely. In this situation, the court can order the head of the child's family or the child's guardian to discipline him. The child may also be taken in by the government for rehabilitation (CL Article 17).

The criminal defender's objective is to make certain that the child receives the least severe possible punishment and that the setting in which the child is placed is the least restrictive alternative. For example, it is far less restrictive to have the child living at home with his family than for the government to take custody of him. Therefore, in designing a mitigation/sentencing plan, the criminal defender must persuade the court that the child will become a productive member of society if he is allowed to remain at home and to continue attending school.

When drafting a mitigation/sentencing plan to propose to the court, the criminal defender must consider the child's unique personal needs, attributes and limitations, the quality and quantity of family support that the child can reasonably expect to receive, whether the child has any sources of support in addition to his family members, the types of controls that would insure community safety without unnecessarily restricting the child, and alternative sanctions that might be effective. A partial list of options to consider includes:

  1. Living Arrangements - Where and with whom will the child live during the period of court supervision? If remaining in the family home is not possible, are there other adult relatives or adult family friends who are willing and able to assume custody of the child? If the criminal defender proposes placing the child in another adult's home, he should provide some information to the court to prove that the proposed custodian is willing and able to assume responsibility for the child.
  2. Geographic Relocation - Removing the child from his current environment may be desirable in order to keep him away from a particular group of friends or to prevent him from encountering the victim on a regular basis. Are there adult relatives or friends living elsewhere who would be willing and able to assume custody? Again, the criminal defender must provide the court with information about any proposed adult custodians and assure the court that they are willing and able to properly supervise the child.
  3. Psychological Assessment or Treatment - If psychological issues or addiction to drugs or alcohol contributed to the child's delinquent behavior, the criminal defender should propose that the child receive either inpatient or outpatient treatment, depending on the nature and severity of the child's problems.
  4. Community Service - Having the child do meaningful volunteer work in the community can be a form of symbolic restitution, which may be appropriate if the child is not able to pay monetary restitution.
  5. Public Acknowledgement of the Crime - CL Article 37 provides that if the circumstances of a person's crime are minor and he is exempt from punishment, he may nevertheless be reprimanded, ordered to make a statement of repentance, or offer an apology. Public acknowledgement of the crime can be done in several different ways, such as placing an ad in the newspaper or posting a sign. Although the fact that juvenile court proceedings are usually not held in public (CPL Article 152) might preclude public acknowledgement, the criminal defender should consider whether it is a viable option.
  6. Contributions to Law Enforcement - The criminal defender should consider whether the juvenile would benefit from working with members of local law enforcement and whether a local law enforcement agency would be willing to mentor the child client.
  7. Public Information Services - The child client may be able to educate other teenagers, the general public and media representatives about what he has learned from his experience. For example, possible topics could include such issues as the dangers of substance abuse or being involved in a gang.
  8. Victim Restitution - CPL Article 77 allows victims who have suffered material losses to file incidental civil actions. CL Article 37 states that individuals whose crimes are minor and who are exempt from punishment may still be ordered to compensate the victim for his losses. If applicable, a mitigation/sentencing plan should include a provision for compensating the victim. If it is not possible for the child client or his family to pay money to the victim, some sort of restitution that has special meaning for the victim should be proposed.
  9. Special Consideration for the Victim - There is no reason that the child's sentence should not take the victim's needs into consideration. For example, in some cases, it may be appropriate to order the child to stay away from the victim. Other possibilities include requiring the child to make a statement of repentance or to apologize to the victim.
  10. Education - A mitigation/sentencing plan must contain a plan for the child's continued education. If the child is to be eligible to receive a suspended sentence, he must continue to remain enrolled in and attending school pending the resolution of his case.
  11. Employment - If the child is not enrolled in school, he should be employed if possible. The criminal defender should provide the court with information about who will supervise the child, his job duties, rate of compensation and work schedule.
  12. Letters of Support and Recommendation - A mitigation/sentencing plan needs to provide the court with information about sources of support in the community for the child, including family members, friends, employers, teachers and other individuals. Letters must be consistent with the overall strategy being presented to the court.

Suspended Sentences and Keeping Your Child Client in School Pending the Resolution of His Case

In addition to the items listed above, another important element in a comprehensive mitigation/sentencing plan may be a proposal to suspend the child client's sentence.

A delinquent minor can get a suspension of sentence under certain circumstances, as stipulated by CL Article 72:

  1. Legal conditions:
    1. The defendant must have received a sentence of criminal detention or of fixed-term imprisonment of not more than three years,
    2. The defendant must demonstrate his repentance.
    3. Applying a suspended sentence will not result in further harm to society.
  2. Conditions pertaining to the defendant:
    1. The delinquent minor must be a first-time and causal offender in order to obtain a suspension of his sentence.
    2. The delinquent minor has either committed a crime that is not serious in nature and consequence, or has committed a crime that is serious in nature and consequence but was only an accessory or played a secondary or supplemental role in the crime.

The delinquent minor must acknowledge, admit, and repent his crime in an honest and frank manner. Suspensions of sentences will not be granted to those minors who refuse to admit their crimes after committing them.

  1. Family conditions:
    1. The parents of the minor must have the capabilities and provide the conditions to educate and discipline the minor.
  2. Social conditions:
    1. According to CL Article 76, a criminal for whom a sentence suspension has been pronounced is to be observed by the public security organ during his probation period, in coordination with his unit (danwei). Thus, besides the three types of conditions mentioned above, another condition for sentence suspension is that a school or unit will accept the delinquent minor as a student/member.

Note in particular:

  • The school where the defendant was enrolled at the time of the crime may attempt to persuade the defendant to leave the school on the grounds that his presence is damaging to the school's reputation, or that "it is difficult to manage" the defendant.
  • If the student does not agree to leave, he will likely be expelled from the school.
  • The school may threaten the student or his legal representatives with entering negative records or reports in their personal files in order to get the student to voluntarily leave the school.
  • The schools may use other methods to push the minor students out of the school.

Thus, if a minor student leaves school before being sentenced, he will likely lose his claim for a sentence suspension. Without the school's acceptance of the student's continued enrollment, and because it is unlikely that a convicted minor will find a unit (danwei) to accept him on short notice, a judge will most likely think that there is no suitable social institution that might cooperate with the public security organ in supervising the minor. Under these circumstances, it is therefore less likely that a judge will grant sentence suspension.

Hence, the defense lawyer of a delinquent minor should pay particular attention to this issue. The following are some strategies for addressing this problem:

  • The defense lawyer can inform the client and his legal guardian of Article 44 of the Law on Prevention of Juvenile Delinquency of the People's Republic of China, which states that a minor who is a defendant in a criminal case cannot have his status as a student revoked before the ruling of the people's court takes effect. The lawyer should emphasize that the defendant has the right to get an education, and that continued education is especially important for a student with a criminal record. Again, student status is a very important condition for the people's court to grant a suspension of sentence. Thus, if the school tries to persuade the student to leave, this should be refused firmly; if the student is expelled, the school should be sued for violation of law.
  • A defense lawyer should use this provision to actively coordinate with relevant authorities and to do his utmost to safeguard the minor defendant's legitimate rights and interests under the law. The lawyer should pay special attention to these issues; they are in fact an indispensable part of preparing a defense in a case, besides being a necessary condition for getting a suspension of sentence for the client.

Conclusion

Representing juvenile clients is a specialized area of criminal defense, requiring criminal defenders to utilize unique interviewing, counseling, and investigative skills. Juvenile cases provide criminal defenders with the opportunity to think creatively and to act as role models for children who may not have any other positive relationships with adults in their lives. Although challenging, representing children well can also be extremely rewarding because it provides the criminal defender with the chance to make a difference in the life of a child.


See China Criminal Defense Manual