For the Defense - Vol. 4, Issue 4 - 46

prosecutorial expert reports obtained later, prior to
the decertification hearing, should immediately be
forwarded to the evaluator.

File for Decertification Sooner, Rather
Than Later
It is critical to afford the client as much time as
possible to obtain the treatment and rehabilitation
needed through the juvenile court system, should
the judge decertify the case. There have been
cases in which a child of fifteen or sixteen at the
time of arrest did not proceed to a decertification
hearing until years later, only to hear a prosecutor
successfully argue that "not enough time"
remained to provide the requisite treatment
needed. Such concerns can be mitigated by making
decisions concerning the filing of decertification
motions and scheduling the case as promptly as
possible following the preliminary hearing or
arraignment.
The applicable Rule of Criminal Procedure
directs that "any motion to transfer from criminal
proceedings to juvenile proceedings shall be filed
after the preliminary hearing but not later than
30 days after arraignment."3 Unfortunately for the
child, it is not uncommon for petitions to be filed
months beyond this rule in many jurisdictions.
In this author's opinion, there is generally
little benefit for a youth to be held for a lengthy
time in an adult jail setting. This is especially true
when the youth is held in a "solitary confinement"
status, needing to be kept separate from the
over-eighteen adults in the jail setting. In such
circumstances, defense attorneys might consider
filing a motion to transfer the juvenile from the
adult jail to a juvenile detention facility in an
effort to bring to the court's attention the harm
that can occur by housing the juvenile in such an
environment.
In adult jail settings, the youth's schooling is
often negligible, recreational time is eliminated,
contact with family is more restricted, depression
and suicidal ideation increases, and counseling
is non-existent. However, in counties in which
educational resources and other services are
available in a detention or adult jail setting,
confinement may allow the juvenile to obtain good
grades, earn school credits, and improve behaviors
sufficiently to allow these accomplishments
to become part of the practitioner's report,

46

For The Defense

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Vol. 4, Issue 4

benefitting the client at the decertification
hearing. Regardless, any time spent in an adult
jail pending a decertification hearing is not
counted once decertification occurs and a juvenile
placement begins.

Know What to Expect From a
Decertifiction Expert
Counsel should expect the chosen expert to be
current in professional training, knowledge and
expertise in his/her field. The expert should also
be proficient at addressing all the decertification
factors that a judge must consider in determining
whether to transfer a case to juvenile court. In
every case in which an expert testifies, s/he needs
to be able to articulate "within a reasonable
degree of professional or scientific certainty" and
by a preponderance of the evidence presented,
why a transfer of the case to juvenile court is
more appropriate and reasonable than choosing a
lengthy and punitive sentence of criminal justice
incarceration.
The factors to be considered include: the
nature and circumstances of the offense and
the client's alleged involvement in the offense,
according to the discovery records; the impact of
the crime on the victim; the impact of the offense
on the community; the juvenile's actual degree of
culpability; the degree of "criminal sophistication"
exhibited; the threat to the safety of the public
posed by the client; and, the adequacy and
duration of dispositional alternatives that are
available. Factors related to the adolescent's
potential amenability to treatment include his/
her age, maturity, mental capacity/capabilities; the
prior nature and extent of a delinquent history
and adjustment to any treatment interventions
provided; and, other relevant factors (mental
illness, home, school, community trauma, etc.).
Defense counsel should expect the practitioner
to argue how transfer to the juvenile justice
system will lead to the provision of interventions
that will lessen the potential for future violent
acts. So, on a practical level, any expert used
should be able to specify the tasks and goals to be
met by the appropriate programs and agencies,
both residential and non-residential.
The attorney should also expect the practitioner
to be familiar with the one and only specific
alternative available within the state correctional



For the Defense - Vol. 4, Issue 4

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

Contents
For the Defense - Vol. 4, Issue 4 - 1
For the Defense - Vol. 4, Issue 4 - 2
For the Defense - Vol. 4, Issue 4 - Contents
For the Defense - Vol. 4, Issue 4 - 4
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For the Defense - Vol. 4, Issue 4 - 6
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