Tips on Defending Very Young Clients – Veronika Sykorova

As a third year law student in the UNC Youth Justice Clinic, I was assigned to represent a six-year-old client who was charged with a minor property offense. It quickly became clear that my client, whom I will call Devon, a cognitively normal six-year-old, was unable to understand the juvenile delinquency process. As I attempted to prepare him for an adjudicatory hearing, I soon found that Devon could not distinguish among the roles of the prosecutor, court counselor, and his attorney. It was obvious that he would not be able to assist in his own defense. Through no fault of his own, he simply could not grasp the complicated system that is juvenile delinquency court. He was anxious and upset; he knew something was wrong, but could not make sense of the circumstances he was facing.

North Carolina has the lowest age of juvenile jurisdiction in the country (and is one of only two states that automatically ends juvenile jurisdiction at age 16). Social science research demonstrates that pre-pubescent children lack the cognitive abilities possessed by adults to reason, exercise judgment, and control impulses. Without such abilities, young children often cannot participate meaningfully in their own defense and do not appreciate the wrongfulness of their actions. Even teenagers lag behind adults in their ability to predict and respond to the likely consequences of their actions. Given this reality, lawyers representing very young clients – clients like Devon, but even clients who are slightly older – must be prepared to challenge juvenile prosecutions from the outset.

There are at least two approaches a juvenile defender may take: (1) file a motion to determine a client’s capacity to proceed, and (2) file a Motion to Dismiss (click to access) based on the common law infancy defense. In North Carolina, a person must meet certain capacity requirements to stand trial (see N.C. Gen. Stat. § 15A-1001(a)). In drafting a motion to determine capacity, attorneys should provide as many factual details about the attorney-client relationship as possible. Supplementing the motion with educational records, including grades and Individualized Educational Program (IEP) information, can be very helpful. While these motions can result in a judicial finding that the client lacks capacity and thus the prosecution cannot proceed, capacity evaluations can also be quite burdensome for a child and his family in that the child will have to meet with a certified forensic evaluator. Additionally, in some cases, a prosecutor may recommend confinement rather than dismissing the case.

The second approach is limited to six-year-old clients, and avoids the potential negative impacts of capacity motions. A motion to dismiss based on the common law infancy defense argues that under the common law infancy defense, a child under the age of seven is presumed incapable of committing a criminal act, and that North Carolina has not abrogated the infancy defense in juvenile proceedings. In my case, the judge granted a motion to dismiss based on the common law infancy defense, which is attached.  A commitment by lawyers to utilizing these advocacy approaches can help ensure that very young clients, like Devon, will no longer be fixtures in juvenile court.

Veronika Sykorova is a third year law student at UNC School of Law and participates in the Youth Justice Clinic.

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