Waiver Of Jurisdiction Article

Opinion

Waiver of Jurisdiction: A Juvenile’s Dilemma What begins with a horrible situation – learning the State is going to prosecute your daughter or son in juvenile court for her or his involvement in an alleged offense – can quickly morph into a parent’s nightmare with this simple sentence: “The State respectfully requests that the Court waive its original jurisdiction so the Respondent may be tried in adult court.”

Simply put, the judge looks at all the available evidence to decide whether your child belongs in juvenile court or in adult court. As a parent, you may be wondering what makes a waiver hearing so crucial for my child’s future? Juvenile vs. Adult Court: The Maryland juvenile court is based upon the rehabilitation model, which assumes that children can change, and those children’s mistakes are a basis for learning to do the right thing. In a related issue, similar to the expression, “What happens in Vegas stays in Vegas,” the rehabilitation model permits the juvenile’s offense to remain in a confidential juvenile record not available to the public. In contrast, the Maryland criminal court is based upon the punishment model, which assumes that adults should know better, and that adults have limited capacity to change ingrained criminal behaviors. The view is that adults who offend should be punished for their harm against society. Additionally, the punishment model requires that adult criminal records are available to the public. Waiver Hearings and Your Child’s Future: If convicted in an adult criminal court, an adult criminal record can hobble your son or daughter’s early employment opportunities

and networks, acceptance into college, military and government employment, and credit record. The waiver hearing to adult is a critical step in your son or daughter’s case. Because of the severe consequences on a young adult’s life, the court makes this decision by carefully examining all the factors permitted in making this decision. The judge must determine the venue based on these five statutory factors: • Age of the child; • Physical and mental condition of the child; • Amenability to treatment at the juvenile court level; • Nature of the offense and degree of the child’s participation in the offense; and • The public safety.

Which factor is supposed to be more important in a judge’s decision? Amenability of treatment at the juvenile level is considered the most critical factor for a judge in her decision, according to Maryland case law. Matter of Trader; State of Maryland v. Richard Trader, at 17 (315 A.2d 528, 538). In addition, the prosecution must prove, by a preponderance of the evidence, that the child is unfit for rehabilitation. That means that the judge must determine whether the juvenile is more likely than not to be helped with a rehabilitative program implemented by the juvenile justice system. In re: Randolph T., at 112 (437 A.2d 230, 238). What if the crime your child is charged with is a serious crime? According to one Maryland case, the judge cannot dismiss the child’s amenability to rehabilitation because

the nature of the offense is extremely grievous. Matter of Diane Johnson, at 712 (304 A.2d 859, 863). In this case, the juvenile, who had never been in trouble with the law, was directly responsible for the vehicular manslaughter of a child. The appellate court ruled that the nature of the offense, however grievous, cannot dismiss the juvenile’s amenability to rehabilitation. If the juvenile can be rehabilitated, the weight of rehabilitation can be given greater weight than the weight of the nature of the offense. What Can I Do To Help My Child At The Waiver Hearing?: Though it is the prosecution’s job to prove that your child is unfit for rehabilitation, see In re: Ricky B., 43 Md. App. 645, 406 A.2d 690, your child’s attorney must gather as much evidence as possible demonstrating that your child can and is willing to make amends from their actions, and is able and willing to learn from her or his mistake. Encourage your child to avoid social activities such as late-night parties); get good grades and maintain good school attendance or make improvements in school performance; provide evidence of future goals, such as college or trade school applications or applications to take the GED; and a provide a sincere apology letter to the victim and to the judge written by your child. This evidence will help demonstrate to the court that your child’s alleged involvement with the crime pales in comparison to the weight of evidence showing your child’s amenability to rehabilitation. The possibility of your daughter or son’s juvenile charge being waived up to adult charges and adult court is real. As with any juvenile charges, an attorney should represent your child. But in the instance when the prosecution requests that your child’s case be transferred to adult court, be certain to obtain representation with an attorney who has experience with juvenile court and the waiver process.

By Melissa Ngaruri

for HooverLaw© News

HooverLaw© News • Produced by Patrick Hoover Law Offices and Patrick J. Hoover, Esq. • 600 E Jefferson St., Ste 308, Rockville, MD 20852 • 301-424-5777 • www.hooverlaw.com