For the Defense - Vol. 4, Issue 4 - 45

D

ecertification is a pre-trial process by which
a defense attorney files a motion to have
the charges of an adolescent, under age
eighteen, transferred from the criminal justice
system to the juvenile court based upon a
preponderance of evidence, for the sake of the
client as well as the victim and the general public.
An expert witness can be invaluable in assisting
the defense attorney in presenting sensible and
evidence-based arguments to the judge deciding
the case. While not all cases are decertified, the
odds seem to favor decertification, especially in
non-homicide offenses. I would like to share some
practical advice that, in my opinion, can lead to
successful outcomes in these cases.

Determine Who Can Help
Experts in decertification usually are social
workers, psychologists or psychiatrists who
have specialized knowledge in understanding
adolescent developmental factors and pathways
that can lead to serious violent delinquent
behaviors. Very few experts are formally trained
for this endeavor,1 and those who choose to
conduct evaluations will typically write reports
that reflect their professional background. Thus,
social workers may place heavier weight on
psychosocial stressors, abuse, neglect and other
adverse childhood experiences detailed in narrative
life history reports; psychologists may rely more
heavily on personality testing and assessments;
and, psychiatrists may focus more heavily
on psychopathology with genetic etiologies,
formulating psychiatric diagnoses to explain the
aberrant behavior. Regardless of educational and
employment history, the practitioner chosen should
be able to write a report that clearly articulates
this point to the judge-What is it about this
adolescent, currently charged as an adult, that
mitigates his/her remaining in the criminal justice
system, especially given the current scientific
research concerning the plasticity and continued
development of neural connections into the midtwenties.2 Just as importantly, the practitioner
needs to be able to defend his position in the
courtroom.
When searching for the practitioner that best
fits the circumstances of the case at hand, defense
counsel may wish to consult with other respected
attorneys who have previously used experts in such
cases to obtain recommendations. In particular,

public defender offices in most counties should
certainly be familiar with individuals willing and
able to successfully testify in these cases.

Provide Documents Early
A practitioner's role in the decertification
process typically begins when appointed by the
court as an expert witness through the filing of
a motion to appoint an expert. The practitioner
might also be under contract with an agency, such
as the county public defender's office, in which
case this motion would not be necessary.
The second order to be obtained is a motion to
access records that allows the practitioner to obtain
all necessary records (juvenile court, children and
youth, school, prior placement facilities, detention
and jail records, mental health records, etc.). This
order should also grant the practitioner private
(attorney-type) visiting privileges if the youth
is being held in confinement. This is critically
important as it allows the practitioner to more
easily establish trust and rapport and complete any
testing or documentation needed. Both motions
should be obtained and forwarded to the expert
promptly, as sometimes months will pass before
records are sent.
Following receipt of discovery records and
an initial client interview, most practitioners
should be able to decide whether arguments for
decertification can be made and a report written. If
they are not able to make arguments favorable for
decertification, the practitioner should promptly
inform the attorney of this decision so perhaps
some other expert can be consulted.
The more relevant information a practitioner
initially obtains regarding the charges that were
filed and the juvenile's background, the better
prepared s/he will be when deciding whether
decertification arguments can be made. The
discovery packet should include the criminal
complaint, the affidavit of probable cause, all
police reports detailing the offense including
offender statements, eyewitness interviews,
and any forensic evidence gathered relative to
the client's culpability. Additional information
known from initial attorney contacts with the
adolescent and his/her family should be shared
also. Preliminary hearing transcripts, when
available, are also extremely helpful, as charges
may be added or dropped from the originally filed
criminal complaint. Any additional discovery or
Vol. 4, Issue 4

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For The Defense

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For the Defense - Vol. 4, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 4
