JuCR 7.15 - Waiver of Right to Counsel

• Proposed Changes to JuCR 7.15 - Waiver of Right to Counsel (in Word Format)
• Comments Received for JuCR 7.15 - Waiver of Right to Counsel

GR 9 COVER SHEET
Suggested Amendment
JUVENILE COURT RULES
JuCR 7.15 – Waiver of Right to Counsel

Submitted by the Washington State Bar Association

Suggested Juvenile Court Rule 7.15 addresses the significant problem of juveniles appearing in court without representation by counsel. The Washington State Assessment of Access to Counsel and Quality of Representation in Juvenile Offender Matters¹ recommended: “Washington law should be changed to conform to national standards prohibiting children from waiving the right to counsel.” Although the suggested rule does not go so far as prohibiting the waiver of counsel in juvenile proceedings, it sets forth minimum protections to ensure that all children brought before juvenile courts in Washington understand the serious consequences that can flow from proceeding in juvenile court matters without the assistance of counsel.

Forty years ago, the U.S. Supreme Court’s landmark ruling in In re Gault, 387 U.S. 1 (1967), held that the “juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Today, the protections found necessary by the Court in Gault are even more critical because juvenile convictions result in criminal history that is easily accessible to the public even after the youth reaches adulthood and can be used against the juvenile in future adult criminal proceedings. Youth in juvenile court face not only incarceration, legal financial obligations, and community supervision, but also collateral consequences such as loss of employment, housing, and educational opportunities that can limit them for the rest of their lives.

RCW 13.40.140(2)² and JuCR 9.2(d) provide that a juvenile has the right to be represented by counsel in all critical stages of the proceedings unless that right is waived. There is currently no court rule that establishes a standard procedure for accepting a waiver of counsel in a juvenile offender matter. As a result of this lack of uniform procedure, courts around Washington State can and do allow children to proceed to a finding of guilt without assistance of counsel. This can happen with minimal inquiry into the young person’s ability to understand the significant consequences of the decision to proceed without counsel. Although this practice might appear expedient to some courts and even to some parents, such expedience comes at a tremendous cost to juveniles and to the public’s confidence in the fairness of the juvenile justice system.

Suggested JuCR 7.15 provides a standard procedure for the court to determine whether a juvenile is knowingly, voluntarily, and intelligently waiving his or her right to counsel. The suggested rule sets forth a procedure for the court to determine, on the record, whether a young person understands the right to representation by counsel and the consequences of waiving that right. Youth and their parents in juvenile court are often encountering the legal system for the first time and are unaware of the gravity of their decisions. The suggested rule requires that the juvenile consult with a lawyer prior to making the significant decision to forego counsel. This will ensure that the juvenile understands the role of a lawyer and the consequences of the decision to proceed without a lawyer’s assistance. This suggested procedure is not unduly cumbersome and it provides a meaningful safeguard to ensure that every youth in Washington State has equal access to justice in the juvenile court system.

¹ Washington State Assessment of Access to Counsel and Quality of Representation in Juvenile Offender Matters (American Bar Association Juvenile Justice Center, National Juvenile Defender Center, Northwest Juvenile Defender Center, 2003)

² RCW 13.40.140:

(1) A juvenile shall be advised of his or her rights when appearing before the court.
(2) A juvenile and his or her parent, guardian, or custodian shall be advised by the court or its representative that the juvenile has a right to be represented by counsel at all critical stages of the proceedings. Unless waived, counsel shall be provided to a juvenile who is financially unable to obtain counsel without causing substantial hardship to himself or herself or the juvenile's family, in any proceeding where the juvenile may be subject to transfer for criminal prosecution, or in any proceeding where the juvenile may be in danger of confinement. The ability to pay part of the cost of counsel does not preclude assignment. In no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay therefore. The juvenile shall be fully advised of his or her right to an attorney and of the relevant services an attorney can provide.