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Protecting a Juvenile's Right to be
Represented by Counsel

It has been estimated that two-thirds of the 147,867 children who were the subject of delinquency or unruly complaints resolved in 2004 faced those proceedings without an attorney. A report from the Children’s Law Center found that roughly 15% of children committed to the Ohio Department of Youth Services and 20% of those placed at community corrections facilities were unrepresented by counsel during their delinquency proceedings.

Too many children in Ohio waive their right to counsel. And, they do so without an appreciation of their constitutional rights and without fully understanding the consequences of their waiver.

In March 2006, the American Civil Liberties Union, the Children's Law Center, the ACLU of Ohio, and the Office of the Ohio Public Defender filed a petition with the Supreme Court of Ohio, calling for the Court to amend the Juvenile Rules of Procedure to better protect the right to counsel for children accused of a crime.  These groups strongly believe that too many children in Ohio waive their right to be represented by counsel and that there aren't enough protections in place to ensure children understand and feel comfortable asserting their right to counsel.

The petition was assigned to the Supreme Court of Ohio Advisory Committee on Children, Families, and the Courts.  Jill Beeler, Chief Counsel for the Juvenile Division, is an active member of the Advisory Committee and worked with the Subcommittee on Rules & Statutes and the Workgroup on Juvenile Defendant's Access to Counsel.

In January 2010, the full Advisory Committee voted and approved the Report of the Advisory Committee on Children, Families, and the Courts on Juvenile Defendant Access to Legal Counsel.  Among other recommendations, the report details a proposal to amend Juvenile Rule of Procedure 3 to reflect current statutory, rule, and case law requirements, as well as a new requirement that, if the child is facing the potential loss of liberty, the child shall be fully and effectively informed of his right to counsel and the disadvantages of self-representation by an in-person consultation with an attorney, and counsel shall inform the court in writing that such consultation has occurred.  In addition, the court shall inquire to determine if the child has met privately with the attorney, and shall advise the child and make findings at the commencement of the hearing pursuant to Juvenile Rule 29.  Any waiver of counsel shall be made knowingly, intelligently, and voluntarily.

The proposal to require a child to consult with an attorney prior to waiving their right to be represented by counsel has received support from former Supreme Court of Ohio Chief Justice Eric Brown and the U.S. Department of Justice Access to Justice Initiative.

Juvenile Rule 3, as passed, was limited to require consultation with an attorney only in felony cases.  However, the Rule clarifies a child's right to counsel in the following ways:

  • Specifically lists instances in which a child cannot waive their right to counsel

    • Bindover proceeding

    • Serious Youthful Offender proceeding

    • When there is a conflict or disagreement with parent, guardian, or custodian; or, if the parent, guardian, or custodian asked that the child be removed from the home

  • Requires the juvenile court to inform a child of their right to counsel and the disadvantages of self-representation

  • In all felony cases, the child cannot waive their right to counsel unless they have consulted with an attorney

The Rule is effective July 1, 2012.

Click here for a copy of Juvenile Rule 3.

Click here for a manual, produced by Children’s Law Center, Inc., discussing the implementation of the new version of Juvenile Rule 3.


Supreme Court of Ohio Decides Two Juvenile Right to Counsel Cases

In re C.S., 2007-Ohio-4919. C.S. represented by APD Amanda Powell.

In C.S., the Supreme Court of Ohio held that the juvenile’s right to counsel is a right that he may waive, subject to certain conditions. Through R.C. 2151.352, the legislature provided a statutory right to appointed counsel that goes beyond constitutional requirements. Important reasoning and holdings by the Court:

  • If a juvenile is not counseled by his parent, guardian, or custodian and has not consulted with an attorney, he may not waive his right to counsel.

  • A judge must appoint counsel for a juvenile if there is a conflict between the juvenile and his parent, custodian, or guardian on the question of whether counsel should be waived.

  • As in cases involving adults, there is a strong presumption against waiver of the constitutional right to counsel.

  • When a juvenile is charged with a serious offense, the waiver of the right to counsel must be made in open court, recorded, and in writing.

  • In a juvenile delinquency case, the preferred practice is strict compliance with Juv.R. 29(D). However, if the trial court substantially complies with Juv.R. 29(D) in accepting an admission by a juvenile, the plea will be deemed voluntary absent a showing of prejudice by the juvenile or a showing that the totality of the circumstances does not support a finding of a valid waiver.

In re Andrew, 2008-Ohio-4791. Andrew represented by APD Elizabeth Miller.

Because a juvenile court retains jurisdiction over a child until the age of twenty-one on a delinquency matter, the issue before the Court was whether Andrew was a “child,” even though he was 18 years old, when he putatively waived his right to counsel at a parole violation hearing. The Court applied the definition of child, provided in R.C. 2152.02(C), and held that Andrew is deemed a child for purposes of the juvenile court’s exercise of jurisdiction over him. Though he was over 18, he was not yet 21, and the court was exercising jurisdiction on a matter related to his prior adjudication as a delinquent child. Accordingly, Andrew “may not waive his right to counsel” unless he is “counseled by his parent, guardian, or custodian [or has] consulted with an attorney.”

“The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.'"

In re Gault (1967), 387 U.S. 1

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