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
Specifically lists instances in
which a child cannot waive their right to counsel
Serious Youthful Offender
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
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.
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
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
“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