In delinquency court, we often rely heavily on the statutes in the Juvenile Code to argue our position and persuade our judges to see things our way. But it’s no secret that the Code has gray areas and gaps that make the Grand Canyon look like a hairline fracture. That’s where case law comes in to play as a tool to help sway the opinion of the Court and make a ruling in our favor. There is an art to arguing case law beyond having looked up and read the cases. Using the facts from an opinion to draw parallels to your own facts or distinguish them paves the way for your judge to follow precedent and rule in your favor. Here are some tips to refresh your trial skills when it comes to arguing cases during your motions:
Know where to find case law related to your topic.
1. The Juvenile Code book published annually by LexisNexis, is annotated with cases addressing each topic in the code. For example, § 7B-1903. Criteria for secure or nonsecure custody, has a notation of “Juvenile Entitled to Hearing at Intervals of No More Than Ten Calendar Days,” followed by the summary of that portion of the case and the case citation for In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449, 2009 N.C. A pp. LEXIS 1175 (2009), rev'd, 364 N.C. 214, 694 S.E.2d 753, 2010 N.C. LEXIS 421 (2010).
2. If you have access to Lexis or Westlaw online, the same annotations appear at the end of the code on the web.
3. Case law will cite to other case law within the body of the opinion. Read those opinions, too.
4.There’s no rule that you can’t “Google” the question. It’s ok, ask the internet. Sometimes you’ll stumble across a resource you didn’t know about that may help. Just be sure to follow the other rules – like don’t create your own case law. Have you explored the OJD website? How about the IDS motions bank? The juvenile defense listserv has lots of defenders ready to make suggestions or share sample motions / briefs. The Office of the Appellate Defender has a plethora of briefs as well. And the School of Government, along with other scholars, often publish Legal Bulletins with topical summaries. See my war story below for one of my favorite resources.
Have a strategy for your argument.
1. Will you be arguing to the judge that your case is so similar to a published opinion that there is no proper outcome other than ruling in your favor? Maybe in a case where your client is charged with sexual battery, which shares the element of “for the purpose of sexual arousal” with the charge of indecent liberties between children, you reference the case law that expounds upon the requirement that “the State must show some evidence of the child's maturity, intent, experience, or other factor indicating his purpose in acting before imputing sexual ambitions to the child” as required in In re T.C.S., 148 N.C. App. 297, 298, 558 S.E.2d 251, 252 (2002).
2. Will you be throwing the kitchen sink at the judge and asking the Court to consider many cases that each have a slight bearing on the decision to be made? This might be an argument that each piece may not be enough in and of itself for the judge to rule in your favor, but that taken as a whole, the judge should find for you. Delinquency cases lend themselves well to kitchen sink arguments as often considerations of the child’s age, maturity, etc., are a totality of the circumstance's argument.
Know the difference between controlling and persuasive authority.
Back to basics – Legal Research 101: Controlling authority is published case law that comes from both NC Appellate Courts, the US Supreme Court, and on some topics, the 4th Circuit Court of Appeals. All other case law, including that from other states or other circuits, and any cases that are “unpublished,” are not controlling authority, and instead are persuasive authority. If a judge finds that the facts in your case are indistinguishable from the facts of a case that has controlling authority, they must follow the rule of law established in the controlling authority case. By contrast, persuasive authority cases may be considered by a judge but will not be binding on the judge as to how they rule on a matter.
Does this mean you shouldn’t bother with persuasive authority cases? Please put that silly thought right out of your head. In a world with very minimally developed case law and guidance to the courts, persuasive authority is a gold mine of information and potential persuasion to a court that doesn’t have any other lens through which to view the facts of your case. The majority of delinquency cases that go up on appeal are issued as unpublished opinions and leaving those cases out there to collect dust is a waste of an incredibly valuable resource.
Motion to Suppress, Kitchen Sink Method, Relying on Persuasive Authority: An Example
The best way to illustrate the power of using case law is through an example. The case involves a scenario familiar to so many of us: A Black child in his home, being questioned by white officers. The question: was this child in custody at the time of the questioning? In this case, the State wanted to point out that the child was in his own home, with his mother present and participating in the process, the officers were not in uniform, and the child was not told he was under arrest or otherwise “forced” to answer any questions. The defense argument included, amongst other things, pointing out the racial makeup (and thus, suggested authority!) of the people in the room, the time of night, the presence of multiple officers and their placement throughout the home (i.e., in front of the only exit from the house), and the reality that this child didn’t feel free to leave and didn’t even have anywhere to go if he did walk out.
The motion to suppress started with the factors from J.D.B. v. North Carolina, and the argument was structured very similar to the 2016 Juvenile Law Bulletin written by LaToya Powell. However, for every point the state tried to make showing that evidence tended to indicate a non-custodial interview, the Bulletin also had persuasive case law to potentially counter that evidence. A highlight of that was the consideration of the child’s mother during the interview (interrogation!). While the State tried to argue that the child’s mother’s presence weighed heavily in favor of a non-custodial setting, the defense argued that In re A.W., 51 A.3d 793, 804 (N.J. 2012) states that a parent who is present “must be acting with the interests of the juvenile in mind” for the parent’s presence to be weighed in favor of a non-custodial setting.
In this case, the mother was telling her child that he needed to cooperate with police, that he needed to answer their questions, and generally directing and pressuring him to incriminate himself. Giving the judge the persuasive authority and the reasoning found in In re A.W., despite it being a New Jersey case, allowed the judge to distinguish that factor in a meaningful way and determine that the mother’s presence was not, in fact, supportive of a finding of non-custodial interrogation. What a powerful example of persuasive authority giving the judge a lens through which to see the facts of a case and to decide that a factor that is often found to weigh in favor of non-custodial status does in fact likely weigh in favor of custodial status.
And yes, that case had a great outcome for the youth. 😊