Legal Rights of Juveniles

Learn about the basic rights of juveniles in court.

What does due process mean?

“Due process of law” means that citizens must be treated fairly by the government. A guarantee of due process is written into the U.S. Constitution in the Fifth, Sixth, and Fourteenth Amendments.

The Fifth Amendment is key in guaranteeing due process of law. It says that the government cannot:

try a person more than once for the same crime;
make a person testify against himself/herself in a criminal case;
take away a person’s life, liberty, or property without good reasons and fair procedures; or
take away a person’s property unless the person is fairly paid for his/her property.

The Sixth Amendment guarantees a right to a fair trial. Under this amendment, a person charged with a crime has the right to:

a speedy and public trial;
a fair jury trial in a criminal case;
be told what he/she is accused of doing wrong;
face the people who say he/she did something wrong;
call witnesses to speak on his/her behalf; and
have an attorney.

The Fourteenth Amendment guarantees equal protection to all persons. This means that regardless of race, creed, color or status, all persons are to be treated equally before the law.

If someone is accused of committing a crime, what rights does he or she have?

The basic rights of someone accused of a crime are:

to be informed of their rights and of the charges against them;
to a trial by jury;
to a speedy and public trial;
to confront their accuser and cross-examine witnesses;
to refuse to testify against himself or herself; and
to be represented by an attorney.

Do juveniles have the same due process rights as adults?

Historically, juveniles have not had the same rights as adults (in Virginia, a juvenile is someone under the age of 18). However, in 1967, the U.S. Supreme Court established four basic rights for juveniles who are accused of committing a crime. The landmark case (In re Gault, 387 U.S. 1 (1967)), involved Jerry Gault, who at age 15 was given a six-year sentence for a prank phone call to a neighbor. The four basic rights for juveniles established by this decision are:

to be informed of their rights and of the charges against them;
to be represented by an attorney;
to refuse to testify against themselves; and
to confront their accuser and cross-examine witnesses.

Basic Legal Rights – Adults	Basic Legal Rights – Juveniles
1. to be informed of their rights and of the charges against them	1. to be informed of their rights and of the charges against them
2. to be represented by an attorney	2. to be represented by an attorney
3. to confront their accuser and cross-examine witnesses	3. to confront their accuser and cross-examine witnesses
4. to refuse to testify against themselves	4. to refuse to testify against themselves
5. to a trial by jury
6. to a speedy and public trial

When you compare the six rights of adults listed above with the four rights of juveniles, you see that rights to a trial by jury and to a public trial are not listed for juveniles. That is because in a juvenile court in Virginia, decisions are made by a judge rather than a jury and there is a duty to protect the confidentiality and privacy of juveniles coming before the court.

For additional information on the juvenile justice system, see Virginia Rules topic “Introduction to Juvenile Justice in Virginia.”

When I see people being arrested on television programs, the police always tell them they have the right to remain silent and some other rights. Are these additional rights?

When someone is taken into custody, a law enforcement officer must read them “Miranda warnings,” named in the landmark U.S. Supreme Court case (Miranda v. Arizona, 384 U.S. 436 (1966)), that established basic rights to which a defendant is entitled. The warnings are:

You have the right to remain silent.
Anything you say can and will be used against you.
You have the right to talk to a lawyer and have the lawyer present with you while you are being questioned.
If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.

In a trial, what rights do juveniles have?

The trial in juvenile delinquency cases is called an adjudicatory hearing. It is at the adjudicatory hearing that the judge determines whether the facts as stated in the petition or warrant are true.

The judge may temporarily postpone a case to allow all parties time to obtain a lawyer or for any other reason needed to have a fair trial. A juvenile accused of a crime has the following rights at the adjudicatory hearing:

the right to be represented by a lawyer to the extent provided by law;
the right to have witnesses appear on their behalf;
the right to subpoena (to require to come to court) witnesses to appear;
the right to confront and cross-examine (question) witnesses testifying against them (accusers); and
the right against self-incrimination (to answer questions or make statements tending to show guilt and have them used against him or her).

During the adjudicatory hearing in delinquency cases, all charges must be proven beyond a reasonable doubt before guilt is established.

If the judge finds the juvenile to be guilty, the case is usually continued to another day for the judge to make a disposition decision (sentencing). The disposition decision is not always made immediately because the judge may require information about all aspects of the juvenile’s background, including prior offenses and personal history, before determining what corrective measures to take with the juvenile.

What does proving something “beyond a reasonable doubt” mean?

“Beyond a reasonable doubt” means that the available evidence leaves you firmly convinced of a defendant’s guilt.

Prior to the U.S. Supreme Court decision In re Winship (397 U.S. 358) in 1970, juveniles were sometimes found guilty using a lower standard – “preponderance of the evidence.” “Preponderance of the evidence” means that the available evidence makes it more likely than not that the person committed the crime.

Now, in a standard adult criminal trial or juvenile adjudicatory hearing, the government has to prove “beyond a reasonable doubt” that the accused committed the crime or offense.

What if someone cannot afford an attorney?

In a criminal trial, if someone cannot afford an attorney, the court can appoint one. In a civil case, someone who cannot afford an attorney may qualify for free legal services from a legal aid office (https://www.valegalaid.org/) and from the Legal Aid Justice Center (https://www.justice4all.org/).

In a non-criminal case such as when someone is suing another party, for example, some attorneys will agree to represent a person in exchange for a share of the settlement. This is called a “contingency” fee arrangement because the amount of the fee depends on the outcome of the case. It is important to know whether the attorney’s pay is based on an hourly rate or contingency fee.

In Virginia, someone trying to locate an attorney to represent him or her can obtain a referral from the Virginia Lawyer Referral service at 1-800-552-7977. (See at https://vsb.org/Site/Site/legal-help/vlrs.aspx)

If someone is found guilty, can he or she appeal the verdict?

Yes. Decisions made by general district and juvenile and domestic relations district courts can be appealed to circuit courts. Decisions by circuit courts can be appealed to the Virginia Court of Appeals. Some decisions of the Virginia Court of Appeals can be appealed to the Virginia Supreme Court.

Can someone’s juvenile court record be sealed or destroyed?

The term “expungement” means records of a case are destroyed. In cases where the juvenile is found not guilty or the case is otherwise dismissed, the person may ask to have the records of the case destroyed. The request must be granted unless the Commonwealth’s Attorney shows good cause why the records should be retained.

Once records have been destroyed, “the violation of law shall be treated as if it never occurred.” Virginia law requires the court and all law enforcement agencies, if asked, to say that there is no record and permits the person to say that he or she has no record. (Code of Virginia § 16.1-306(C) and (E)).

For crimes that would be felonies if committed by an adult, the records remain public just as an adult conviction would. (Code of Virginia § 16.1-305(B1)) In addition, if the juvenile committed an “ancillary offense” along with the delinquent act – that is, an offense related to the act – it may also stay on the juvenile’s record. For example, if Tom intimidated Gary into giving him his Nintendo DS (robbery, which is a felony) by threatening him with a butterfly knife he brought onto school property (which is a Class 1 misdemeanor), the misdemeanor possession of the butterfly knife would be an ancillary offense to the felony offense of robbery, and could stay on the juvenile’s record. (Code of Virginia § 16.1-306(B)).

Do victims of crimes have any rights?

Virginia law contains a Crime Victim and Witness Rights Act, usually referred to as the Victims’ Bill of Rights. (Code of Virginia § 19.2-11.01).

The Victims Bill of Rights is intended to ensure that crime victims:

have opportunities to make the courts aware of the full impact of crime;
are treated with dignity, respect, and sensitivity and have their privacy protected;
are informed of their rights;
receive authorized services; and
are heard at all critical stages of the criminal justice process.

The specific rights victims have depend on case circumstances. The law enforcement agencies investigating a crime will give victims written information about their rights, including the telephone numbers of the Commonwealth’s Attorney and other numbers to call for additional information or to receive services. A victim may also call the statewide toll-free Virginia Crime Victim Assistance INFO-LINE at 1-888-887-3418.

(Virginia Victim Assistance Directory: https://www.dcjs.virginia.gov/sites/dcjs.virginia.gov/files/publications/victims/virginia-victim-assistance-directory.pdf)

What rights do other juveniles before the court have?

The right to be represented by a lawyer in Virginia Juvenile and Domestic Relations Courts extends not only to juveniles involved in delinquency cases, but also to abused and neglected juveniles and juveniles who are the subject in some types of custody cases.

In Virginia, the court appoints a lawyer who represents the juvenile’s best interests; this lawyer is called a guardian ad litem.

In fulfilling the duties of a guardian ad litem (GAL), an attorney will:

meet face-to-face with and interview the child;
conduct an independent investigation in order to ascertain the facts of the case;
advise the child, in terms the child can understand, of the nature of all proceedings, the child’s rights, the role and responsibilities of the GAL, the court process, and the possible consequences of the legal action;
participate, as appropriate, in pre-trial conferences, mediation, and negotiations;
ensure the child’s attendance at all proceedings where the child’s attendance would be appropriate and/or mandated;
appear in court on the dates and times scheduled for hearings, prepared to fully and vigorously represent the child’s interests;
prepare the child to testify, when necessary and appropriate, in accordance with the child’s interest and welfare;
provide the court sufficient information, including specific recommendations for court action, based on the findings of the interviews and independent investigation;
communicate, coordinate, and maintain a professional working relationship to the extent possible with all parties without sacrificing independence;
file appropriate petitions, motions, pleadings, briefs, and appeals on behalf of the child and ensure the child is represented by a GAL in any appeal involving the case; and
advise the child, in terms the child can understand, of the court’s decision and its consequences for the child and others in the child’s life.

Court Appointed Special Advocates

In addition, in many courts, a child who is brought to court and is alleged to have been abused or neglected will have a court appointed special advocate (CASA), who is a volunteer. The role of the CASA is to speak up for that child, to provide information to the court about the child’s best interest, and to help the child understand the legal proceedings in which he or she is involved.

A CASA may also be assigned to children who are in need of services or in need of supervision. A CASA works closely with the child’s court-appointed attorney (Guardian ad litem or GAL). The CASA prepares a written report that is sent to the judge hearing the case. To learn more about CASA programs in Virginia visit https://virginiacasa.org/va-programs/

The CASA:

gets to know the child by visiting him or her as often as possible (both in and out of the child’s home);
researches the child’s background by reviewing records (school, medical, etc.) and by interviewing persons who know the child (doctors, teachers, neighbors, relatives, etc.);
assesses what is in the child’s best interest and makes recommendations to the judge regarding placement and services; and
monitors court orders to assure the child receives court-ordered services.

To learn about juveniles who were helped by the CASA program visit https://virginiacasa.org/success-stories/