The most interesting part about any case is the evidence. This is especially true when a child is facing juvenile delinquency charges. The first question on the minds of most parents, guardians, or loved ones of a juvenile facing charges is: What evidence is there and what proof exists that the juvenile committed the offense for which they are charged?
The law regarding what constitutes evidence, who must be given access to the evidence in juvenile cases, who may not be given access to the evidence in juvenile cases, and when evidence must be made available is found in several different legal sources. The US and Texas Constitutions, Texas Juvenile Justice Code, Texas Code of Criminal Procedure, Texas Rules of Evidence, and even rulings from prior appeals courts, including the United States Supreme Court, all have a say in these important questions.
This article explains the duties placed on the prosecuting attorney to produce evidence, the rights of the juvenile and their attorney to access evidence, and the limitations on the juvenile’s attorney when it comes to sharing evidence in juvenile cases.
Attorney Lisa Herrick is Board Certified in Juvenile Law and has extensive experience obtaining and reviewing evidence in juvenile cases. She believes in the importance of adhering to the law in order to get your child the best possible outcome while taking every step to protect their future.
Please take a moment to watch this video by Lisa in which she gives an overview of the usual procedure she follows when receiving and reviewing evidence in juvenile matters.
What is Considered Evidence in Juvenile Cases?
Anytime a police officer refers an allegation of juvenile delinquency to the juvenile probation intake department, that referral will include evidence supporting the officer’s belief that probable cause exists to find that the juvenile committed the offense or offenses alleged. The evidence in juvenile cases may include 911 calls; officer body camera or in-car video recordings; written or recorded statements by witnesses, an alleged victim, or the accused juvenile; or forensic evidence like DNA tests, fingerprint analysis, toxicology analysis, or ballistics comparisons.
The police officer or detective may continue the investigation after the referral is made, in which case all additional evidence would also be provided to the juvenile department. Once the juvenile intake probation department gets the referral, the intake officer will conduct different evaluations, assessments, and interviews that become part of the juvenile’s file. When the intake officer refers the case to the prosecutor’s office, the evidence gathered by the police department and the intake officer will be part of the file the prosecutor receives.
After the prosecutor reviews all the evidence, including anything the prosecutor receives as a result of subpoenas or search warrants, the prosecutor will decide what charges, if any, should be filed against the juvenile.
Who Has a Right to Access the Evidence in Juvenile Cases?
Any juvenile who has a case against them filed in the juvenile court has a right to have an attorney represent them. According to Section 51.10(b) of the Juvenile Justice Code, The child shall not waive their right to an attorney in:
(1) a hearing to consider transfer to criminal code as required by Section 54.02;
(2) an adjudication hearing as required by Section 54.03;
(3) a disposition hearing as required by Section 54.04;
(4) a hearing prior to commitment to the Texas Juvenile Justice Department as a modified disposition in accordance with Section 54.05(f); or
(5) hearings required by Chapter 55.
A juvenile must also be represented by an attorney at any detention hearings.
In short, this means a child must be represented by an attorney at every stage of the court proceedings. Of course, nothing in the law prevents a child from retaining an attorney prior to or outside the scope of any court proceeding.
According to Article 39.14 of the Texas Code of Criminal Procedure, after a child’s attorney requests the prosecutor to produce the evidence in a juvenile case, the prosecuting attorney “shall produce and permit the inspection and the electronic duplication, copying, and photographing… of any offense reports, any designated documents, papers, written or recorded statements… or any designated books, accounts, letters, photographs, or objects…that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.”
Section (e) of the same article states that the child’s attorney “…may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article…”
However, Section (f) provides that the attorney “may allow a [child], witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.”
Generally speaking, this means that the accused child has a right to review any and all evidence that exists in the case pending against the child, but the attorney may not allow the child to keep or copy any of that evidence. This also means that, in most cases, the child’s parent or guardian may not be shown or given copies of any evidence in the case.
Separate and additional to the right to access evidence in their case, a child also has the right to communicate freely with their attorney and the attorney may not disclose to third parties any information the attorney learns through private conversations with the child. This means that anything the child tells their attorney is confidential and the attorney is not permitted to repeat the information to anyone outside the legal team representing the child.
Rule 503(b)(2) of the Texas Rules of Evidence states that, “…a client has a privilege to prevent a lawyer or lawyers representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.”
However, Rule 511(a) articulates that the attorney-client privilege, or confidentiality of communication, is waived if the child “…voluntarily discloses or consents to disclosure of any significant part of the privileged communications…” This means that the communications between the child and their attorney are no longer protected and confidential if the information is repeated to anyone outside the child’s legal team or if the communication is made while others outside the child’s legal team are present when the otherwise privileged statements are made.
What Communication Can the Parent Expect from the Child’s Attorney?
While it may be frustrating to learn that, as a parent, you do not have a right to access the evidence in your child’s case, that doesn’t mean you should expect to be excluded from the process. Your child’s attorney should ask you about the events of the allegation, if you have any knowledge about what happened. The attorney should have a conversation with you about your child and ask about your child’s background, education, medical history, past contact with police or with the juvenile justice system, and anything else that would be important to know about your child. The attorney should keep you updated on any hearings that are scheduled and should prepare you and your child for what to expect at each one. The attorney should also discuss any plea negotiations with you and give your child a chance to discuss them with you. Ultimately, the attorney should allow the parent to be involved in the process to the extent the child feels comfortable.
Child Accused of a Crime? Call Lisa Herrick.
The right to both review and access evidence in a case is a right held only by the accused person and their attorney, even if the accused person is a juvenile. If your child is accused of a crime in Tarrant County, you need an experienced juvenile attorney who can carefully analyze all evidence in your child’s case. Your child also needs an attorney who can explain the evidence to them and answer any questions they may have.
When you are seeking representation for your child, look for an attorney who has expertise in handling juvenile cases and who will protect your child’s freedom and future. Attorney Lisa Herrick has devoted her career to juveniles accused of crimes. She is considered an expert in juvenile law, a highly specialized area that very few North Texas attorneys understand.
Don’t let your child become another statistic in the juvenile justice system. Contact Lisa today to discuss how she can get you and your family through this difficult time. Ultimately, her goal is for juveniles in Tarrant County to receive a second chance at a productive life and avoid future brushes with the law. Call 817-203-2220 for a free consultation with Lisa today.