Current through 2024-13, March 27, 2024
1. Diversion/Informal Adjustment
Defense counsel should be familiar with diversionary programs
and alternative solutions available in the community. Such programs may include
diversion, mediation, or other alternatives that could result in a juvenile's
case being dismissed or handled informally. When appropriate and available,
defense counsel should advocate for the use of informal mechanisms that could
divert the juvenile's case from the formal court process.
2. Mental Health Examinations
Preserve Rights in Mental Health Examinations. Throughout a
juvenile proceeding, the judge may order a mental health examination of the
juvenile. Admissions made during such examinations are not protected from
disclosure. Defense counsel should ensure the juvenile understands the
consequences of admissions during such examinations and advise the juvenile on
the lack of confidentiality and that personal information about the juvenile or
the juvenile's family will be revealed to the court or other personnel.
3. Competency and Insanity
A. Competency
(1) Defense counsel should be familiar with
procedures for a determination of mental incompetence under the Maine Juvenile
Code and Maine Rules of Criminal Procedure;
(2) Although the juvenile's expressed
interests ordinarily control, defense counsel may question capacity to proceed
without the juvenile's approval or over the juvenile's objection, if
necessary;
(3) If at any time, the
juvenile's behavior or mental ability indicates that he or she may be
incompetent, or may be mentally retarded, defense counsel should request the
court issue an order for a juvenile to be examined for competency to stand
trial through State Forensics. Prior to the evaluation by the expert, defense
counsel should request from the child and provide to the experts all relevant
documents including but not limited to prior psychological/psychiatric
evaluations, school records and any other important medical records;
and
(4) Defense counsel should
prepare for and participate fully in the competency hearing.
B. Defense of Insanity
(1) Defense counsel should be familiar with
the substantive law and procedures governing the insanity defense in
Maine;
(2) If defense counsel
believes that the juvenile did not appreciate the wrongfulness of his/her
actions at the time of the offense, the attorney should discuss with the
juvenile the possibility of an insanity defense;
(3) Before raising the issue of insanity in
open court, defense counsel should consider retaining their own mental health
professional to evaluate whether the juvenile appreciated the wrongfulness of
his or her actions at the time of the offense. Prior to the evaluation by the
expert, defense counsel should request from the child and provide to the
experts all relevant documents including but not limited prior
psychological/psychiatric evaluations, school records and any other important
medical records;
(4) Defense
counsel must fully prepare the witnesses to testify on the juvenile's behalf in
regard to the juvenile's sanity at the time of the offense;
(5) Defense counsel must advise the juvenile
of the potential dispositions available to the Court if he/she is found not
guilty by reason of insanity; and
(6) Defense counsel must be prepared to
advocate on behalf of the juvenile against involuntary commitment and provide
other treatment options such as outpatient counseling or services.
4. Initial
Appearance/Arraignment
A. If appointed prior
to the juvenile's initial appearance, defense counsel should preserve the
juvenile's rights at the initial appearance on the charges by reviewing
discovery materials to determine probable cause, preserving the right to file
motions, and entering a "no answer" to the charges in all but the most
extraordinary circumstances where a sound tactical reason exists for not doing
so.
B. However, there may be
reasons to enter a plea at arraignment such as to benefit from a concurrent
sentence or a unique opportunity for a favorable disposition. Defense counsel
is required to explain to the juvenile the consequences of waiving counsel and
the collateral consequences of a plea entered.
5. Bind-over
A. Defense counsel must be familiar with the
substantive law and procedures governing bind-over under the Maine Juvenile
Code;
B. Defense counsel must
advise the juvenile of the consequences of bind-over and of the maximum
possible sentence to which the juvenile would be exposed if tried as an
adult;
C. Defense counsel must
investigate the circumstances of the alleged conduct and the circumstances of
the juvenile to identify specific evidence relevant to the issue of
bind-over;
D. Defense counsel must
identify and prepare witnesses, including expert mental health witnesses, to
testify on behalf of the juvenile at any hearing on bind-over; and
E. Defense counsel must prepare for and
participate fully in any bind-over hearing.
6. Investigation. Defense investigation is an
essential aspect of competent representation. Defense counsel should:
A. Review the court file and any prior court
records of the juvenile, and other relevant records;
B. Examine all charging documents to
determine the specific charges that have been brought against the juvenile. The
relevant statutes and precedents should be examined to identify: the elements
of the offense(s) with which the juvenile is charged; both the ordinary and
affirmative defenses that may be available; any lesser included offenses that
may be available; and any defects in the charging documents, constitutional or
otherwise, such as statute of limitations or double jeopardy;
C. Identify and interview any potential
defense witness;
D. Interview any
state witnesses;
E. Where
appropriate, visit and investigate the scene of the alleged act. Defense
counsel should consider obtaining photographs, maps and measurements of the
area; and
F. Seek investigators and
experts, as needed, to assist defense counsel in the preparation of a defense,
in the understanding of the prosecution's case or in the rebuttal of the
prosecution's case.
6.
Participate in Discovery
Defense counsel should pursue discovery pursuant to the Maine
Rules of Criminal Procedure in all cases and review the response to this
quickly to determine what additional investigation or discovery needs to be
conducted or obtained.
7.
Develop a Theory of the Case
During the investigation and trial preparation, defense
counsel should develop and continually reassess a theory of the case. A theory
of the case is one central theory that organizes the facts, emotions, and legal
basis for a finding of not guilty or adjudication of a lesser offense, while
also telling the juvenile's story of innocence, reduced culpability, or
unfairness. The theory of the case furnishes the basic position from which
defense counsel determines all actions in a case.
8. File Motions
A. Defense counsel should file motions, or
objections as necessary to zealously represent the juvenile. Defense counsel
should file motions as soon as possible due to 21 day time constraints for
filing pre-trial motions as set out in Maine Rules of Criminal
Procedure.
B. Motions should be
filed in a timely manner, should comport with the formal requirements of the
court rules and should succinctly inform the court of the authority relied upon
in the case. When a hearing on a motion requires the taking of evidence,
defense counsel's preparation for the evidentiary hearing should include:
investigation, discovery and research relevant to the claim advanced; the
subpoenaing of all helpful evidence and the subpoenaing and preparation of all
helpful witnesses; and full understanding of the burdens of proof, evidentiary
principles and trial court procedures applying to the hearing, including the
benefits and costs of having the juvenile testify.
C. Relief requested may include, but is not
limited to:
(1) In consultation with the
juvenile, a mental or physical examination of the juvenile;
(2) Relief due to mental incapacity,
incompetency, mental retardation or mental illness;
(3) Relief based on the unconstitutionality
of the implicated statute or statutes;
(4) Relief based on the insufficiency of the
charging document;
(5) Relief based
on improper or prejudicial joinder or severance of charges or defendants in the
petition or adjudicatory hearing;
(6) Relief based on the failure of the state
to meet its discovery obligations;
(7) The suppression of evidence gathered as
the result of violations of the Fourth, Fifth or Sixth Amendments to the United
States Constitution, state constitutional provisions or statutes, including:
(a) The fruits of illegal searches or
seizures;
(b) Involuntary
statements or confessions;
(c)
Statements or confessions obtained in violation of the juvenile's right to an
attorney or privilege against self-incrimination;
(d) Unreliable identification evidence which
would give rise to a substantial likelihood of irreparable
misidentification.
(8)
Suppression of evidence gathered in violation of any right, duty or privilege
arising out of state or local law;
(9) Access to resources which or experts who
may be denied to the juvenile because of his or her indigence;
(10) The juvenile's right to a speedy
trial;
(11) The juvenile's right to
a continuance in order to adequately prepare his or her case;
(12) Matters of trial evidence which may be
appropriately litigated by means of a pretrial motion in limine;
(13) Motion for judgment of dismissal;
or
(14) Matters of trial or
courtroom procedures, including inappropriate clothing or restraints of the
juvenile.
9.
Plea Negotiations
A. Defense counsel should
participate in plea negotiations to seek the best result possible for the
juvenile consistent with the client's interests and directions to his or her
attorney.
B. Prior to entering into
any negotiations, defense counsel should have sufficient knowledge of the
strengths and weaknesses of the case(s), or of the issue(s) under negotiation
enabling defense counsel to advise the juvenile of the risks and benefits of
settlement.
C. Defense counsel
should keep the client fully informed of any continued plea discussion and
negotiations and convey to the juvenile any offers made by the prosecution for
a negotiated settlement. Defense counsel should not accept any plea agreement
without the juvenile's consent. The decision to enter a plea rests solely with
the juvenile client and defense counsel should not attempt to unduly influence
that decision or let a parent or other adult unduly influence whether a
juvenile enters a plea.
D.
Notwithstanding the existence of ongoing tentative plea negotiations with the
prosecution, defense counsel should continue to prepare and investigate the
case in the same manner as if it were going to proceed to trial.
E. In preparing to enter a plea before the
court, defense counsel must explain to the juvenile the nature of the plea
hearing and prepare the juvenile for the role he or she will play in the
hearing, including answering questions of the judge and providing a statement
concerning the offense and the appropriate disposition. Specifically, defense
counsel should:
(1) Be satisfied there is a
factual basis for the plea or admission;
(2) Make certain that the juvenile
understands the rights he or she will waive by entering the plea and that the
juvenile's decision to waive those rights is knowing, voluntary and
intelligent;
(3) Be satisfied that
the plea is voluntary and that the juvenile understands the nature of the
charges; and
(4) Make certain that
the juvenile fully and completely understands the conditions and limits of the
plea agreement and the maximum punishment in juvenile court, sanctions and
other consequences the juvenile will be exposed to by entering a
plea.
F. When the plea
is against the advice of defense counsel or without adequate time to
investigate, defense counsel should indicate this on the record.