Difference between revisions of "China Criminal Defense Manual - Special Considerations in Juvenile Cases"

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== SPECIAL CONSIDERATIONS IN JUVENILE CASES ==
 
  
  
===Introduction===
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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.
 
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.
  
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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.
 
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===
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==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.
 
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.
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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.
 
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===
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==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.
 
Interviewing child clients can be much more challenging than interviewing adults.  The following list contains some suggestions that may make client interviews more effective.
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#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.
 
#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===
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==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.
 
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.
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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.
 
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===
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==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.   
 
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.   
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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.   
 
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===
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==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 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).
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===Suspended Sentences and Keeping Your Child Client in School Pending the Resolution of His Case===
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==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.   
 
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.   
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*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.
 
*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===
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==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.
 
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.

Revision as of 08:56, 16 April 2010