motions in juvenile court - materials - parent...

MOTIONS PRACTICEIN JUVENILE COURT

Ari Mathe’The Law Office of

Arianne E. Mathe’, P.C.678-696-0807

[email protected]

structure of motions

• Caption

• Introduction

• Procedural History

• Statement of Relevant Facts

• Argument & Citation of Authority

• Reservation of Rights

• Conclusion/Prayer for Relief

• Certificate of Service

• Proposed Order

• Rule Nisi

• Reveal enough facts and argument to proceed

• File amended motions prior to hearing date

• Include grounds for motion and relief sought

• Include case references/memorandum of law

particularizing motions

motions hearings

• Know when you have the burden of proof

• Know what the burden/standard is

• Present evidence/call witnesses

• Have case law with you and copied for judge

• Preserve the record for appeal

• Bring a proposed order with you

Delinquency Petitions(15-11-520 through 15-11-523)

520 - petition MUST be filed by an attorney

Not an “intake officer” who is not an attorney

Not another lay person (like a parent or a PO)

Different from a “complaint”

• 521 - time limits for filing petition

• If child in detention, within 72 hours after detention hrg.

• If not, “shall” be released, “shall” be dismissed

• If child not in detention, within 30 days of complaint or release

• If not, appears to require dismissal (unless extension requested and granted in writing)


• 522 - contents of petition (SHALL)

• Must be verified (sworn, signed, dated, notarized)

• Jurisdiction; best interest need for supervision, treatment, or rehabilitation

• Name and address of parent, custodian, guardian

• If in custody, place of detention

• If child being charged with class A or class B DF act

• Whether any of required info is unknown


• 523 - amendment of petitions

• Prosecuting attorney may amend at any time prior to commencement of adjudication hearing

• If amendment made, child may request continuance

• If amended, must include material changes to allegations or new charges and must be re-served

• After jeopardy attaches, cannot add new charges


Discovery In Juvenile Court(15-11-541 through 15-11-546)

• 541 (a) - upon filing motion for discovery, DA must give child full access to:

• Copy of complaint and petition

• Names, addresses, phone numbers for each witness

• Copy of any statement by child or other witness to be called

• Copy of any statement of co-participant to be used at hearing

• Transcripts, recordings, summaries of statements of child or witness

• Scientific or other report related to evidence to be presented

• Photographs and any physical evidence to be presented

• Police incident and supplemental reports regarding occurrence

• 541(b) - State SHALL disclose

• ALL evidence

• Known or that may become known

• Favorable to the child

• Material to either guilt OR punishment


• 542 - Motion to Compel Discovery

• If discovery request is refused, file Motion to Compel

• Must state request was made and refused

• The order granting discovery will require reciprocal discovery

• The court can limit, deny, set conditions for safety of witness, CI, other person, to preserve evidence, protect privilege, impede prosecution of adult or child charged as adult


• 543 - Notice of alibi defense

• Requires specific written request by prosecutor

• Requires specific written response by child

• Places and people (names, addresses, dobs, phone numbers)

• More than 48 hours before hearing*

• Can be withdrawn without “penalty” (who gets notice?)

• Requires notice of rebuttal witnesses


• 546 - penalties for failure to disclose

• Can be raised at any time

• Court can order disclosure or inspection

• Court can grant a continuance

• If showing of prejudice and bad faith, can prohibit introduction of evidence or witness not disclosed

• Any other order court deems just (including dismissal)


Application of Rules of Evidence(15-11-582 (b)(3))

(b) Adjudication hearings shall be conducted:...

(3) In accordance with the rules of evidence set forth in Title 24

motions to suppress

• Governed by OCGA 17-5-30

• File in EVERY drug case

• File EVERY time physical evidence is collected

• File EVERY time your client is searched

• Must be filed in writing

• Must state facts showing wherein the search and seizure were unlawful and put the state on notice as to the type of search involved, which witness to bring to the hearing, and the legal issues to be resolved at that hearing

mts - issue spotting

• State has the burden of proof

• Must show both the stop and the search are legal

• Stops

• Of People

• Of Vehicles

• Searches

• Warrants

• Exceptions

• Other Issues

stops

• Of People• Tier 1: Consent/Voluntary• Tier 2: Terry Stop• Tier 3: Arrest

• Of Vehicles• Like a Terry stop - reasonable articulable suspicion• Roadblocks

searches• Warrant

• Affidavit of probable cause by magistrate

• Oath or affirmation by officer

• PARTICULARLY DESCRIBE the PLACE to be searched AND the persons or THINGS to be SEIZED

• Execution of warrant

Exceptions to warrant requirement

Consent

Exigent Circumstances/Hot Pursuit/Emergency

Search Incident to Arrest/Inventory

Plain View

Airports

Schools (?)

School Searches

• Administrators can search with a great deal of discretion so long as the search is (1) justified at its inception and (2) reasonable in scope. See New Jersey v. TLO, 469 U.S. 325 (1985)

• However, police officers (including School Resource Officers) must have probable cause to search. See State v. Young, 234 Ga. 488 (1975)

• Administrators acting as agents for SROs? With direction by? (language in Young: "action by school officials will pass constitutional muster only if those officials are acting in their proper capacity and the search is free of involvement by law enforcement personnel" at 498)

jackson-denno

• O.C.G.A. 24-3-50 provides: “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope or benefit or remotest fear of injury.”

• File ANYTIME your client says anything to law enforcement PERIOD

• File ANYTIME you know you’re going to trial

• Can be filed ANYTIME prior to trial

J-D issue spotting

• Tier 1, 2, and 3 encounters - are we in custody?

• Threats - fear of injury• Promises - hope of benefit• Trickeration - strategery• 5th Amendment - Miranda• 6th Amendment - right to counsel• Juveniles - extra protections

Juvenile ConfessionsRiley v. State, 237 Ga. 124 (1976)

• State has “heavy” burden

• Must show that the juvenile did understand and waive his rights

• “Knowing and intelligent waiver” requirement

• Depends on “totality of the circumstances”

• No one factor alone determines suppression

• Age of the accused

• Education of the accused

• Knowledge of the accused as to both the substance of the charge and the nature of his rights to consult with an attorney and remain silent

• Whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney

• Whether the accused was interrogated before or after formal charges had been filed

• Methods used in interrogation

• Length of interrogation

• Whether the accused refused to voluntarily give statements on prior occasions

• Whether the accused has repudiated an extra judicial statement at a later date

Juvenile ConfessionsRiley v. State, 237 Ga. 124 (1976)

motion to suppress identification

• Use for show-up, photo line-up, live line-up

• Burden on Defendant

• To exclude AN identification, must show: ID procedure was impermissibly suggestive and ID was unreliable under totality of circumstances

• To exclude ALL identifications, must show a very substantial likelihood of irreparable misidentification

immunity from prosecution

• OCGA 16-3-24.2

• Pre-trial hearing and ruling required

• Burden on Defendant

• Burden by preponderance of the evidence

• Must show Defendant was acting in self-defense, defense of others, defense of habitation against unlawful force

chandler motion

• Evidence of prior acts of violence by an alleged victim are admissible where the defendant claims justification as a defense

• Governed by Uniform Superior Court Rule 31.6

• Requires Defendant to provide notice to State

• State must provide notice of rebuttal evidence

• Requires hearing outside the jury’s presence but not required to be pre-trial

motion to sever

• File if client charged in one petition with similar things but different incidents

• If charges are joined only because they are similar, the Court MUST sever at the client’s request

• Even if offenses are properly joined, the Court CAN sever in order to obtain a fair determination of guilt or innocence as to each offense

motion in limine to limit testimony/redact recordings

• Check police reports, witness statements, other documents in discovery for facts, statements, references to 1) your client’s history, 2) things that reflect poorly on your client’s character, 3) hearsay

• Ask for instructions to witnesses to limit testimony or redacting of recordings

• Don’t fall for the “explanation of officer conduct” BS

• This potentially helps your evidence, sets up error, and hassles the prosecution

motion in limine re prior false allegations of victim/witness

• Can impeach a witness with testimony showing the witness has previously made false allegations against another person

• Defendant has burden of proof

• Must show “reasonable probability of falsity” of other allegations

• Probably need more witnesses than just the other falsely accused person

motions in juvenile court - materials - parent...

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