In recent consultations our office has learned that some juveniles, prior to adjudication and sometimes prior to a petition being filed, are having evaluations performed. Sometimes the evaluations are routine psychological evaluations. In other instances, evaluations related to alleged abuse in the home are being performed, including when there have been accusations of sexual assault by the juvenile. In none of these instances was an attorney involved or consulted. This post will explore the potential legal pitfalls of pre-adjudication evaluations and what attorneys can do to minimize potential damage. We will present future posts exploring confidentiality and privilege in detail and the intersection with pre-adjudication evaluations.
Pre-adjudication evaluation referrals may come from a number of sources: law enforcement, social workers investigating allegations of abuse and/or neglect, or from the parents themselves looking for services. But it appears that referrals may also come from juvenile justice. The Juvenile Code is mostly silent as to whether an intake juvenile court counselor may recommend an evaluation, either informally or as part of a diversion plan or contract. However, under NCGS 7B-1706, a juvenile may be referred to counseling, be under certain conditions and actions (as well as the parent) to successfully complete the contract, and any agency shall be notified if providing “treatment.”
It’s unclear whether intake counselors consider the possibility that information provided during evaluations may be used against the juvenile, either at adjudication or disposition. NCGS 7B-2408 provides that “no statement made by a juvenile to the juvenile court counselor during the preliminary inquiry and evaluation process shall be admissible prior to the dispositional hearing.” However it is unlikely that this protection would automatically be extended to statements made during an evaluation that was requested by the court counselor.
Juvenile defenders should be aware of possible pre-adjudication statements, locate them, and shield their client from any negative impact that may arise from them. First, ask your client and their parent or guardian whether or not the juvenile has been evaluated or screened either in relation to the case, or within a recent time before the juvenile was court involved. Obtain copies of any documents from an evaluation through a signed release from the parent or guardian. Review the documents for any incriminating or otherwise harmful information. Check with the court counselor to see if she has received any information, and whether or not that information has been shared with the prosecutor.
If incriminating or harmful information is discovered, consider trying to limit or block the information. Certain privileges exist by statute and evidentiary law that protects information between patients and mental health professionals. File a motion in limine to prevent introduction of the information, or in the alternative, ask for an in camera inspection of the documents and ask the judge to remove or redact incriminating or harmful information. You may also consider asking the judge to recuse him or herself after reviewing the information.