I. Transfer HearingsThis section includes standards on the following topics:
Commentary. Transfer hearings to determine whether a juvenile should be charged as an adult rather than as a juvenile are unique proceedings. The procedure and rules governing the transfer hearing are unique to each jurisdiction. The Massachusetts standards presented below reflect the requirements of that state's law. Nonetheless, many aspects of these standards are relevant elsewhere.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
J 3.1 Initiation of Transfer Hearing Request
Counsel should be prepared to argue strenuously to the court, as well as to the assistant district attorney, that the case should not be heard as a transfer hearing, because the Commonwealth made an inadequate effort to bring the defendant into court before his/her 18th birthday or because such a proceeding would not be in the interests of justice. Counsel should also consider whether changes in the rest of the juvenile code have created new options for contesting this process.
J 3.2 Transfer Hearing Part A
(a) Counsel should be aware that transfer requires the judge to make a finding of probable cause that the defendant committed the charged offense. Counsel should always seek a complete and recorded probable cause hearing except in the most extraordinary circumstances. Counsel should order a copy of the tape or transcript. In many courts it will be appropriate to request a stenographer to assure a record of the hearing, given the poor quality of the recording systems around the state. Counsel should also argue that there is no statutory provision for substituting Grand Jury minutes for a hearing and that even if the Grand Jury minutes are admitted into evidence the defendant is still entitled to call any relevant witnesses.
(b) Counsel should refer to Section IV, Probable Cause Hearings, of the Standards for Criminal Practice, for other issues relating to preparation for the hearing.
J 3.3 Transfer Hearing Part B
(a) Counsel should be aware of the statutory findings (protection and interests of the public) that [state law] requires the judge to make. Counsel should be prepared to argue that the judge must consider, but is not limited to, the five subsidiary factors listed in [state law]. Counsel should also be prepared to argue that the Court should apply a "clear and convincing" evidence standard of proof to be met by the prosecution.
(b) Counsel must have up-to-date knowledge of the statutory and case law governing these findings.
(c) Counsel shall, at a minimum, review, and unless inappropriate, obtain copies of the client's psychosocial evaluations, social services records, psychological reports and evaluations, placement or program evaluations and reports, school records, and medical history. Protective orders concerning access to and prosecutorial use of such information should be requested. Counsel should consider moving under ex parte, if possible, for independent evaluations, reports and histories. Counsel shall also facilitate and make substantial efforts to secure services through school, community agencies, DSS, DYS, or DMH, as appropriate.
(d) Counsel should be prepared to present testimony by people who can provide helpful insight into the client's character, including: teachers, athletic personnel, counselors, DYS counselors, psychologists, community members, probation offices, religious affiliates, employers, or other persons with a positive personal and/or professional view of the defendant.
(e) Counsel should be certain that all Part B proceedings are recorded. Counsel's file should contain notes of names, addresses and essential testimony at the Part B proceeding. Due to the inadequacies of recording systems and the importance of the hearing, counsel should consider a motion for funds to obtain a court reporter.
(f) Counsel shall order the tape or transcript of Part A & B proceedings.
J 3.4 Post Transfer Responsibilities
(a) After dismissal of the juvenile complaints, the youth is arraigned on adult charges; counsel should be prepared to argue bail. Counsel should consider arguing that the defendant be held in a DYS facility, even if the youth has attained the age of 19. Counsel should advise the client of his/her right to a bail appeal, and of the advantages and disadvantages of pursuing such an appeal.
(b) Counsel shall carefully review the judge's findings to determine if the order of transfer is deficient. Where findings are deficient, counsel should file a Motion to Dismiss and/or Remand to Juvenile Court.
(c) Counsel's motion, affidavit and memorandum should set forth relevant testimony or materials, or refer to the lack thereof, presented at the Part B hearing. Because these motions are not de novo proceedings, relevant portions of the part B hearing should be appended. If new counsel is representing the youth, he/she should confer with prior counsel who represented the client in the juvenile court and review the proceedings in detail. Counsel should ascertain whether there have been any significant personal or family changes arising since the conclusion of the juvenile court proceedings. Counsel should secure any further evaluations or other materials that are in the youth's best interest. New counsel should, as appropriate, confer with any representatives of state agencies or others involved with the youth.
Commentary. In many jurisdictions, a decision to transfer the juvenile to adult criminal court can be reviewed de novo in the criminal court. In other jurisdictions, review may be limited to an abuse of discretion standard. In others, no trial court review may be allowed.
ABA Juvenile Justice Standards Relating to Counsel for Private Parties
8.5 Posthearing remedies. (Transfer.)
If transfer for criminal prosecution is ordered, the lawyer should act promptly to preserve an appeal from that order and should be prepared to make any appropriate motions for post-transfer relief.