The Initial Hearing: Prehearing Interview; Arraignment; Pretrial Detention Arguments; Probable-Cause Hearing

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 53-109

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CHAPTER 4

THE INITIAL HEARING:

PREHEARING

INTERVIEW;

ARRAIGNMENT;

PRETR I AL DETENTION

ARGUMENTS; PROBABLE

CAUSE HEARING

PAR T A . INT RODUCTION

§ 4.01 The Nature of the Initial Hear ing;

Scope of the Chapter; Ter minology

“In itia l Hear ing” (or “Init ial A ppear ance”) is the term u sed in m ost ju risdi ction s to refe r

to the first hear ing at which the respondent appears before a judicial off icer—a judge,

magistrate, or court com missioner. Depending upon the jurisdict ion, the hearing may

encompass all or some of the following cour t functions:

1. Ascertainment of the respondent’s eligibility for court-appointed counsel and, if

the respondent is eligible, appointment of defense counsel (see § 4.04 infra);

2. Arraignment of the respondent on the charging paper (commonly known as t he

“Petition”) (see §§ 4.12, 4.13 infra);

3. Determination whether the respondent will be released or detained pending trial

and, in some jurisdict ions, setting of bail (see §§ 4.15– 4.27 infra);

4. Scheduling of a trial date (see § 4.14 infra);

5. Referra l of the respondent for a mental health examination (see §§ 12.11–12.15

infra).

54 | Trial M anual for Defense Attorne ys in Juvenile Delinquency Ca ses

Most jurisdictions conduct t he arraignment at Initial Hea ring, see, e.g., N.Y. F. C.

A § 320.4(1) (2012), although some jurisdict ions permit the prosecution to post pone

the filing of a Petition and the arraign ment for a limited period of time under excep-

tional circumstances. See, e.g., In the Matter of T.G.T., 515 A.2d 1086 (D.C. 1986) (con-

struing a D.C. statute to permit a prosecution continuance of the filing of the Petition

for up to five days following In itial Hearing upon a “clear showing of a legitimate state

objective to be served by the postponement,” id. at 1087; but detention or shelter care

can only be ordered in such circumstances “if the juven ile is given reasonably specific

notice of the nature of the charge,” id.). Some jurisdictions incorporate both t he deten-

tion determination and t he probable-cause determin ation in the I nitial Hearing, see, e.g.,

D.C. C  §§ 16-2310(a), 16-2312(e)–(f) (2012), while others provide for an adversarial

detention determination at Initial Hearing followed some days later by a probable-cause

hearing, see, e.g., N.Y. F. C. A § 325.1(2) (2012).

Because of the substantial d iversity in the order in which the various stages are

reac hed, t his c hapte r wil l simpl y addr ess ea ch sta ge— arra ignme nt, de tentio n, pro bable-

cause hearing, and scheduling of the trial date—as a separate topic, without attempting

to elabor ate upon the nu merous permutat ions that re sult from combinin g or separati ng

the stages.

Terminology also varies substantia lly among jurisdict ions. For purposes of this

chapter and the rest of the book, the term “arraignment” wi ll be employed to refer to

the formal proceeding at which the respondent is advised of the charges and enters a

plea. That plea—which juvenile court parlance styles a n “admission” or “denial”—will

be designated a plea of “guilty” or “not guilty” in this discussion, to avoid confusion

with the concept of incriminating admissions in the context of police interrogation and

suppression of confessions. Finally, for the sake of simplicity, the term “judge” will be

employed to refer to the judicial officer conducting the Initial Hearing, even though

some jurisdictions assign such hearings to a magistrate or court com missioner rather

than a judge.

§ 4.02 Coping with the Idiosyncr asies of Initial

Hearings: Rushed Proceedings

and Juv enile Court Parla nce

Counsel should expect t hat the Initial Hearing wil l be a pretty rushed proceeding, espe-

cially in metropolitan courts where dozens of cases are scheduled for In itial Hearing

each day. The setting inside the court room is often chaotic, with juveni le respondents,

their parents, the prosec utors, defense attorneys, and bailiffs moving about the well of

the courtroom, periodically approaching the bench, and going back a nd forth to the

cell-block. Sometimes the prosecution will request a continua nce to complete its inves-

tigation, and th is will be granted before defense counsel even reaches counsel table.

The defen se at torne y wi ll ha ve to m aint ain c ompo sure in th is co nfu sion. When s/he

does not understand what the judge is doing, or has done, with counsel’s case, s/he should

ask the court respect fully for an explanation. The record should be clear on whether the

The Initia l Hearing

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arraignment has been held or continued and, if continued, on whose motion. Defense

objections to a prosecution-sought continuance should be noted. If defense counsel is

confronted by something unexpected, s/he should ask for time to confer with the client

or for a continuance to a later hour or date. S/he should resist being harr ied or pressured

into snap judgments on matters that s/ he has not previously considered.

Counsel will also encounter local idioms and acronyms that can bewilder novice

attorneys and even experienced attorneys whose practice has been in adult cr iminal

court or juvenile courts of other jurisdictions. See § 2.02 supra. Attorneys who are first

beginning practice in a juvenile court are well advised to learn the vocabula ry quickly

by consulting other attorney s who regularly appear in the cour t and by watching court

proceedings.

PART B. APPOINTMENT OF COUNSEL

§ 4.03 The Right to Counsel at Initial Hearing

A juvenile respondent in a delinquency proceeding, like an adult defendant in a crim inal

proceeding, has a constitutional right to counsel, including the right to court-appointed

counsel if s/he is indigent. See In re Gault, 387 U.S. 1, 41 (1967). In every delinquency

case the “child and his parents must be notified of the child’s right to be represented by

counsel retained by them or, if they are unable to afford counsel, that counsel will be

appointed to represent the child.” Id.

The Sixth A mendment right to counsel applies at every “critical stage” of the pro-

ceedings, W hite v. Maryland, 373 U.S. 59 (1963) (per curiam), “at or after the time that

adversary judicial pro ceedings have been initiated against [the indiv idual] . . .—‘whether

by way of formal charge, preliminary hearing, indictment, information, or arraign-

ment.’” Brewer v. Williams, 430 U.S. 387, 398 (1977). See also Montejo v. Louisiana, 556

U.S. 778, 786 (2009); Rothgery v. Gillespie County, Texas, 554 U.S. 191, 198, 213 (2008).

The right is triggered at “such time as t he ‘government has committed itself to prose-

cute, and . . . t he adverse positions of government and defendant have solidified.’ ” Moran

v. Burbine, 475 U.S. 412, 432 (1986).

Under these principles it has long been clear that the Sixt h Amendment requires

the appointment of counsel to represent indigents at arra ignment. Hamilton v. Alabama,

368 U.S. 52 (1961); see, e.g., Rothgery v. Gillespie Co unty, Texas, 554 U.S. at 198, 213; Moran

v. Bur bine, 475 U.S. at 428; see also Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012). Accord-

ingly, when, as in the majority of jurisdictions, Initial Hearing includes an arraignment,

a juvenile respondent is entitled to be represented by counsel at the In itial Hearing.

In those jurisdictions where Initial Hearing does not involve an arraignment but con-

sists of an adversarial detention hear ing and a determination of probable-cause, the

Sixth A mendment right to counsel should also apply. Although the Supreme Court

has occasionally descr ibed the time at which the right attaches as the “first formal

charging proceeding” (Moran v. Burbine, 475 U.S. at 428), it plainly can attach earlier,