Prior to this point, an affidavit was filed and determined to be legally sufficient. The prosecutor or juvenile justice court staff decided to handle the case formally in the juvenile justice court, and a petition alleging delinquency was filed. If the youth was summoned to juvenile justice court after the petition was filed, the JUVENILE JUSTICE GUIDELINES refers to the youth’s first appearance in juvenile justice court as the “initial hearing.” If the youth is in detention, the JUVENILE JUSTICE GUIDELINES refers to the first hearing as the “detention hearing.” Although most juvenile justice courts call the first hearing when a youth is held in detention the “detention hearing,” many different names are used for the first hearing when a youth is summoned to juvenile justice court, including arraignment, probable cause, pre-trial, or plea hearing. Usually, the only differences between a detention hearing and an initial hearing are: 1) the timing requirements; and, 2) the need to determine whether the youth will continue to be detained if the hearing is a detention hearing.

In juvenile justice courts where counsel is appointed and has met with the youth prior to the detention or initial hearing, a single hearing can often cover issues of detention and probable cause, can allow a plea to be entered, and if the youth denies the charge, can address pre-trial issues. Consequently, pre-trial issues are included in this chapter. This concept of combining all detention, probable cause, plea, and pre-trial issues into one hearing may be foreign to some juvenile justice court jurisdictions. However, in many instances, counsel and prosecutor can be prepared to address all of these issues resulting in a one-hearing system that is more timely for the youth, reduces detention lengths of stay, conserves juvenile justice court docket time, and conserves prosecutor and counsel time.

Whenever practical, if the youth is being detained in secure detention, a detention hearing held in a courtroom setting within the detention center or on the grounds of a juvenile justice complex is preferred because this reduces safety and security concerns and saves transportation costs. Preferably, the first hearing, and subsequent hearings through disposition, are held face-to-face, as opposed to electronically. For this reason some jurisdictions have established courtrooms inside the detention center or otherwise accommodate detention hearings at night and on weekends which reduces crowding and lengths of stay.

The areas of transfer, waiver, and non-amenability are complex areas of juvenile law, and the juvenile justice court judge’s decision to waive jurisdiction and transfer a youth to criminal court is a profoundly important one. One of the key Supreme Court cases affecting the rights of alleged juvenile justice offenders, Kent v. United States (1966), states that:

“The Juvenile Court has considerable latitude in determining whether a child should be certified to the adult court, but it must provide fairness and basic due process including: a fair hearing, the assistance of counsel, access to social records, and findings by the court as to the reasons for certifying.”

State laws provide for multiple ways for a juvenile charged with a serious offense to come under the jurisdiction of the criminal court:

• Discretionary Judicial Waiver — If a motion to waive is filed by the prosecutor, the juvenile justice court judge has the authority to make the decision whether to waive juvenile justice court jurisdiction and transfer the case to criminal court or to retain jurisdiction. With discretionary waivers, both the prosecutor and the juvenile justice court judge are part of the decision-making process. The prosecutor chooses, within certain statutory parameters, whether or not to file a motion requesting a discretionary judicial waiver with transfer to criminal court; and, the juvenile justice court judge makes the decision whether to grant the motion within the parameters of age, offense, and potential for amenability as defined by state statutes. The discretionary judicial waiver process consists of two decisions – the first is the determination of probable cause, and the second is the determination of whether the youth should remain under the jurisdiction of the juvenile justice court or be transferred to the criminal court. Other terms used by states for waiver include transfer, relinquish, or decline jurisdiction, and other terms used for transfer are certification, remand, and bind over.

  Typically, with judicial waivers, the prosecutor is charged with the burden of proving why the youth is not amenable to a juvenile justice court response. Some states have added presumptive waiver provisions in certain types of cases that shift the burden of proof regarding amenability from the prosecutor to the youth. A presumptive waiver provision assumes that the youth is not amenable to juvenile rehabilitation and requires the youth to prove why he or she is amenable to juvenile rehabilitation.

• Mandatory Judicial Waiver — The juvenile justice court is required to transfer a case to criminal court if the juvenile justice court judge finds probable cause, and the alleged offense is specified by state statute eligible for a mandatory waiver. In mandatory judicial waivers, neither the prosecutor nor the juvenile justice court judge has discretion or authority not to waive the youth to the criminal court after probable cause is established. Though the prosecutor does have some control in his or her charging decision. The mandatory judicial waiver process consists of only one decision, the determination of probable cause.
• Prosecutor Discretion — The prosecutor has the authority to decide whether to file the charge in the juvenile justice court or the criminal court if the alleged offense falls within offense and age parameters established by state statutes. Concurrent jurisdiction is another term used for prosecutor discretion. Some states refer to this as prosecutor “direct filing” in criminal court, which could also include the prosecutor’s actions under statutory exclusion provisions described below.
• Statutory Exclusion — State statutes require that certain offenses be directly filed in the criminal court if allegedly committed by a juvenile of a certain age, removing discretion from both the prosecutor and the juvenile justice court judge. As with mandatory judicial waiver, the prosecutor does have charging authority which can affect statutory exclusion. Exclusions are generally limited to capital crimes, murders, and other serious offenses against persons. Where statutory exclusion exists, state statutes may allow “reverse waiver,” which gives the criminal court discretion to decline jurisdiction and transfer the case of a juvenile to the juvenile justice court.
• Blended Sentencing — In some states, the juvenile justice court has a dispositional mechanism to impose criminal sentencing in a juvenile matter. This mechanism is called “blended sentencing” and gives the juvenile justice court the power to impose both juvenile and adult sentences concurrently under certain circumstances.

  Blended sentencing power may also be given to the criminal court to choose between juvenile and criminal sentencing, or to impose concurrent sentences, when a juvenile is in criminal court on a statutory exclusion or mandatory judicial waiver. When blended sentences are imposed concurrently, the criminal sentence may be suspended unless the offender violates the conditions of the juvenile sentence. Or, the juvenile sentence may be served until the youth reaches the age of majority at which time the criminal sentence is imposed, minus time already served in the juvenile justice system.

For more information on the provisions and pathways associated with the transfer of youth to adult criminal court as well as who makes the transfer decision in each state, visit JJGPS.ORG

The JUVENILE JUSTICE GUIDELINES recommends that waiver and transfer of juveniles to adult court should be rare and only after a very thoroughly considered process. A review of studies of juvenile transfers to the criminal justice system reveals that recidivism rates are higher among juveniles transferred to criminal court than among those retained in the juvenile justice system, and that transferred juveniles are more likely to reoffend, to reoffend more quickly, and to reoffend at a higher rate.

The Detention and Initial Hearing described the process leading up to and including the youth entering a plea to the petition. If the youth denied the allegations, the case was either referred for a dispute resolution alternative or set for trial. If set for trial, pre-trial issues, including discovery, were discussed and resolved either at the initial or detention hearing or at a subsequent pre-trial hearing. Because discovery delays and disputes are a common cause of unnecessary continuances and delayed trials, the juvenile justice court should clearly define discovery obligations and hold prosecutor and defense counsel to these defined obligations. The juvenile justice court, the prosecutor, and counsel for the youth agreed on a date for the trial, and the juvenile justice court judge determined the amount of time necessary to set aside for the trial based on the number of prosecution and defense witnesses and the nature of their testimony. The juvenile justice court judge ensured that a sufficient amount of consecutive trial time was scheduled on the court’s docket.

In some juvenile justice court jurisdictions, youth have the right to request a trial by jury under certain circumstances. In most jurisdictions, however, a judge or judicial officer determines the facts in most trials.

Prior to the disposition hearing, a youth charged in the formal juvenile justice court with a violation of the law either admitted the offense or the juvenile justice court judge determined the youth committed the offense at trial. The disposition process concludes when the juvenile justice court judge makes the disposition order and determines whether post-disposition review is appropriate.

Depending on the seriousness of the offense, the youth’s history of prior juvenile justice adjudications, whether there are indicators of potentially serious treatment issues, and the amount of information already available to the juvenile justice court, the disposition process can be clear-cut or complex. When juvenile justice courts diverting cases to alternative systems whenever possible and appropriate, the cases that reach disposition in the formal juvenile justice court involve serious or chronic offenses. Many will require in-depth investigation to determine the most appropriate disposition.

At the time a youth is adjudicated, the juvenile justice court judge determines if additional information is needed in order to select the appropriate disposition. If no additional information is needed, the juvenile justice court can move directly into the disposition phase after adjudicating the youth.