For the Defense - Vol. 4, Issue 3 - 30

good person ended up charged with a violent
crime. Note, however, that this information
could expose your trial strategy, so you will
need to be clear with your client and with your
expert what your expectations are in this area.
Finally, if your client is denying involvement, be
aware that a court may not refuse to transfer
the case because the juvenile is unwilling to take
responsibility for his or her criminal actions. To
do so would impermissibly violate the juvenile's
Fifth Amendment privilege against selfincrimination.13
Some clients have such significant histories
with the juvenile system that no expert will
be willing to testify that they are amenable to
treatment. This does not have to be the end of
your fight. Talk to your client and your client's
family to find anyone who might be willing
to come to court and say something positive.
Consider current or former coaches, teachers,
neighbors, parents, uncles, or even counselors
from a prior juvenile placement facility. In the
absence of an expert, present lay witnesses to
tell the judge all the good things they can about
your client.

The Decertification Hearing
At the decertification hearing, be prepared to
enter into evidence all helpful documentation.
Your expert's evaluation will likely be Defense
Exhibit A. You (or the Commonwealth) may
enter into evidence a copy of the preliminary
hearing transcript. The Commonwealth will
likely enter into evidence a copy of the juvenile
court file (if your client has a juvenile
delinquency history). Other items entered
into evidence could include school attendance
records, report cards, or even awards received
while the juvenile was in the jail or in a juvenile
detention center.
In addition to expert testimony relating to
amenability to treatment, you will need to
address as many of the statutory factors as you
can in your argument or in a brief submitted
to the court. The statute includes a list of the
factors the court must consider;14 refer to the
statute when preparing your argument.
Your preparation for a decertification hearing
begins at the preliminary hearing. A good

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preliminary hearing transcript will support your
argument for transfer. Cross-examination of
witnesses during a preliminary hearing could
include questions that flesh out any factor
that could weigh in your client's favor during
the decertification hearing. Attempt to elicit
testimony during the preliminary hearing that
might include any of the following: that your
client was merely present while the crime
occurred; that your client was a follower and
not the person directing the criminal act; that
your client was the only juvenile among a group
of adult actors; that your client was not the
person actually carrying or using the deadly
weapon; that your client immediately turned
himself in to police; or that the act occurred in a
private space where the public at large was not
at risk. Be creative, any testimony that shows
your client to be an unsophisticated, immature,
impulsive teenager can be helpful during the
decertification hearing. In addition, while
the burden to prove that the public interest
is served by transfer to juvenile Court, the
Commonwealth still has the burden of proving
a prima facie case that the criminal charges
mandated initial jurisdiction in adult criminal
court. Therefore, if you can use a preliminary
hearing to attack an element of the statutory
requirement for a direct file case, you should go
for it.
When arguing for transfer, incorporate your
knowledge of juvenile brain development
and the corresponding case law on this issue.
After all, children who commit crimes are still
children. While Pennsylvania defines a child as
one who is under the age of 18 at the time of
the commission of a crime, research indicates
that the human brain continues to grow and
mature through one's mid-twenties, perhaps
reaching a mature state around age 25.15
Juveniles are more susceptible to peer influence
than adults16 and because children lack control
over their immediate surroundings, they are less
able to avoid negative influences.17 Children,
by definition, are less mature than adults; that
immaturity combined with an underdeveloped
sense of responsibility contributes to many
"impetuous and ill-considered actions" among
the young.18 This is not to say that children
For the Defense - Vol. 4, Issue 3

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