Week in Review: November 8-12
To our Defenders who served and are serving, Thank You.
Happy Friday Readers! Not to skip over Thanksgiving, but Christmas is in 43 days!! It's time to start planning gifts and putting up trees. But before we get too far in the future, let's start with this week's recap and get us one step closer to the weekend.
Tip of the Week—Juvenile Records: Access to DJJ File and Disposition Reports
Assistant Juvenile Defender Terri Johnson is providing this week's Tip of the Week. Thank you, Terri!
In some areas where juvenile court counselors, prosecutors, and defense attorneys work closely together, information obtained during intake may be revealed to the prosecutor prior to disposition. At the same time, court counselors sometimes withhold the pre-disposition/disposition report from either the defense attorney, prosecutor, or both until the disposition hearing begins. When asked for the disposition report, there is sometimes a misconception among court counselors that the report must be withheld until the date of disposition. Each of these issues comes from a misunderstanding of sections of the Juvenile Code.
First, N.C. Gen. Stat. § 7B-2408 states, “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.” Second, N.C. Gen. Stat. § 7B-2413 states, “the court shall proceed to the dispositional hearing upon receipt of the predisposition report” and “no predisposition report shall be submitted to or considered by the court prior to the completion of the adjudicatory hearing.” Court counselors may cite these two statutes when withholding predisposition reports until the minutes just prior to disposition.
In addressing this misunderstanding of the law, counsel should first note the statutory language. Both statutes speak to admissibility in court prior to disposition. Neither statute requires withholding information from the juvenile’s attorney. In fact, N.C. Gen. Stat. § 7B-2413 provides that the juvenile shall have an opportunity to inspect any predisposition report and risk and needs assessments and to offer rebuttal evidence. Counsel should request a continuance to review the predisposition reports and all assessments and obtain appropriate rebuttal evidence. In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979) and N.C. Gen. Stat. § 7B-2406 addresses such requests.
While the two statutes referenced address admissibility in court, it is also important to note that the information obtained during intake should not be made available to the prosecutor prior to disposition. N.C. Gen. Stat. § 7B-3001(c) addresses records maintained by the Division (the Department of Adult Correction and Juvenile Justice). The statute provides that all records maintained by the Division “shall be withheld from public inspection” and provides a list of persons who are entitled to access to those records without a court order. The list specifically includes the juvenile and juvenile’s attorney and specifically excludes the prosecutor. Those not included in the list of approved persons can only examine the records with a court order.
Counsel should utilize N.C. Gen. Stat. §§ 7B-2408, 7B-2413, and 7B-3001 to protect all clients’ confidentiality and to prevent unauthorized use of intake information in the prosecution of child clients. Counsel should utilize N.C. Gen. Stat. § 7B-3001 to obtain copies of the juvenile court counselor’s file and all other records maintained by the Division. OJD has a sample request for Department of Juvenile Justice records on the website here. If a request for records is refused, OJD can provide a motion for the release of DJJ files. As a last note, if the release of protected information prior to disposition is a continuing issue, counsel should note that N.C. Gen. Stat. § 7B-2413 provides that no predisposition report or risk and needs assessment shall be prepared prior to adjudication without the written consent of the parent/guardian/custodian or the juvenile’s attorney. Counsel can and should withdraw consent for such reports and assessments to further the defense of the child.
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REMINDER - OJD CLE
Please join OJD on November 19, 2021 from 12:00PM to 1:15PM for Raise the Age Part II: Senate Bill 207.
This training will be a statutory review of the changes to Raise the Age presented in Senate Bill 207. This includes expanding jurisdiction on 16 and 17 year olds and discussing the minimum age changes in juvenile delinquency.
CLE Application is currently pending and CLE costs will be an attorney expense at this time.