94- 649 C.M.R. ch. 101, § 3

Current through 2024-50, December 11, 2024

Section 649-101-3 - INITIAL OBLIGATIONS

1. Prompt Action to Protect the Juvenile

Many important rights of the juvenile in juvenile court proceedings can be protected only by prompt advice and action. Defense counsel should immediately inform the client of their rights and pursue any investigatory or procedural steps necessary to protect the juvenile's interests.

2. Advocate for the Juvenile's Release from Detention

A. Defense counsel has an obligation to attempt to secure the pretrial release of the juvenile under the conditions most favorable and acceptable to the juvenile unless contrary to the expressed wishes of the juvenile.

B. Defense counsel should be prepared to present to the juvenile judge a statement of the factual circumstances and the legal criteria supporting release including challenges to probable cause and to make a proposal concerning conditions of release.

C. Defense counsel should determine whether a parent or other adult is able and willing to assume custody of the juvenile. Defense counsel should be aware that most juvenile courts will not release a juvenile without a responsible adult in court willing to take custody. Every effort should be made to locate and contact such a responsible adult.

D. Defense counsel should arrange to have witnesses to support release and have anyone the juvenile wishes to have present at any hearing.

E. If the juvenile is released, defense counsel should fully explain the conditions of release to the juvenile and the juvenile's custodian and advise both of the potential consequences of a violation of those conditions.

F. Following the detention hearing, defense counsel should continue to advocate for release of a juvenile or expeditious placement.

G. Whenever a juvenile is held in some form of detention, defense counsel should periodically visit the client.

H. Whenever a juvenile is held in some form of detention, defense counsel should be prepared for an expedited adjudicatory hearing.

3. Meet with Juvenile

A. Defense counsel should conduct a client interview as soon as possible after being assigned by the court/MCILS in order to obtain the information necessary to provide quality representation at the early stages of the case and to provide the juvenile with information concerning the representation and the case proceedings. Any meeting should be held sufficiently before any court proceeding so as to be prepared for that proceeding.

B. Prior to conducting the initial interview defense counsel should, where possible:

(1) Be familiar with the elements of the offense and the potential punishment where the charges against the juvenile are already known; and

(2) Obtain copies of any relevant documents which are available, including copies of any charging documents, recommendations and reports made by the Department of Correction, and law enforcement reports that might be available.

4. Defense counsel should specifically:

A. Ascertain:

(1) The juvenile's current living arrangements, family relationships, and ties to the community, including the length of time his or her family has lived at the current, as well as the juvenile's supervision when at home;

(2) The immigration status of the juvenile and his or her family members, if applicable;

(3) The juvenile's educational history, including current grade level, attendance and any disciplinary history;

(4) The juvenile's work history, if any:

(5) The juvenile's physical and mental health, including any impairing conditions such as substance abuse or learning disabilities, and any prescribed medications and other immediate needs;

(6) The juvenile's record, if any, including arrests, detentions, diversions, adjudications, and failures to appear in court;

(7) Whether there are any other pending charges against the juvenile and the identity of any other appointed or retained counsel;

B. Explain the nature of the attorney-client relationship to the juvenile including the requirements of confidentiality;

C. Explain the attorney-client privilege and instruct the juvenile not to talk to anyone about the facts of the case without first consulting with defense counsel;

D. Explain the nature of the allegations, what the prosecution must prove, and the likely and maximum potential consequences;

E. Explain a general procedural overview of the progression of the case;

F. Explain how and when to contact defense counsel;

G. Explain the role of each player in the system;

H. Obtain a signed release(s) authorizing defense counsel and/or his/her agent to obtain official records related to the juvenile including medical and mental health records, school records, employment records, etc;

I. Discuss arrangements to address the juvenile's most critical needs; e.g., medical or mental health, or contact with family or employers; and

J. Assess whether the juvenile is competent to proceed or has a disability that would impact a possible defense or mitigation.

5. At the initial meeting and thereafter as appropriate, defense counsel should gather information relevant to the preparation of the defense. Such information may include, but is not limited to:

A. The facts surrounding the charges against the juvenile;

B. Any evidence of improper police investigative practices or prosecutorial conduct which affects the juvenile's rights;

C. Any possible witnesses or other potential sources of information; and

D. Where appropriate, evidence of the juvenile's competence to stand trial and/or mental state at the time of the offense.

6. Throughout the process, defense counsel should take the time to:

A. Keep the juvenile informed of the nature and status of the proceedings on an ongoing basis;

B. Maintain regular contact with the juvenile during the course of the case, and especially before court hearings;

C. Review all discovery with the juvenile as part of the case theory development;

D. Promptly respond to telephone calls and other types of contact from the juvenile, where possible, within one business day or a within reasonable time thereafter; and

E. Counsel the juvenile on the options available and the consequences of each, as well as decisions that need to be made by the juvenile.

94- 649 C.M.R. ch. 101, § 3