Lawyer Frequently Asked Questions (FAQ)
Last Updated: January 2006


JDN has compiled the following Frequently Asked Questions to help juvenile defense attorneys in Massachusetts. If you have any questions that are not listed here, please feel free to Contact us.

Attorneys who complete the training requirement are certified to represent clients in juvenile delinquency proceedings in the Juvenile Courts and the juvenile session of District Courts, with the exception of potential Youthful Offender matters. The assignment of delinquency cases varies from county to county. Check with your local bar advocate program to learn the practice in your county.

Attorneys who accept assignment on juvenile delinquency cases must represent their clients at all stages of the delinquency proceeding in the Juvenile and District Court. In the event of a final conviction in the Juvenile Jury Session or the District Court Jury of Six Session, it is the responsibility of the trial attorney to file a Notice of Appeal and Motion to Withdraw and to notify CPCS of the need for appellate counsel to be appointed. By accepting juvenile delinquency cases, attorneys agree to abide by the CPCS Performance Standards Governing Representation of Indigent Juveniles in Delinquency and Criminal Cases.

For more information, call CPCS at (617) 482-6212 or go to http://www.state.ma.us/cpcs/manuals/pcmanual/index.htm

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I am already taking appointments on delinquency cases. How can I get on the list to represent kids in youthful offender cases?
Attorneys who wish to accept assignments in Youthful Offender cases must (1) meet the minimum requirements, (2) be accepted to the panel, and (3) complete a training program.

Attorneys must have tried at least five jury trials to completion within the past five years as lead counsel. (Attorneys who have tried at least four jury trials to completion in the past five years and who also have additional documentation demonstrating outstanding credentials, experience and recommendations may also apply.)

Attorneys with the above minimum qualifications who are interested in being trained and becoming a member of this panel must send a letter of application to Attorney Helen Fremont, detailing their most recent (and most serious or complicated) five jury trials tried to completion in which they were lead counsel, including the following information: name of the case; date of the trial; name of the court, judge and prosecutor; charges; length of trial; issues presented; experts or other forensic specialists used as witnesses; and any other relevant material. Attorneys must also send a recent writing sample of 3-5 pages.

Your letter of application should be sent to:
Helen Fremont, Staff Counsel
Committee for Public Counsel Services
44 Bromfield Street
Boston, MA 02108

For more information, call CPCS at (617) 482-6212 or go to http://www.state.ma.us/cpcs/manuals/pcmanual/index.htm

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If I am not certified to take youthful offender appointments, what do I do when I'm on duty and a youthful offender eligible case comes in? Can I take the case? Can I do the arraignment? What should I do if I can't take the case?
Attorneys who are not Youthful Offender certified may accept assignments of the cases listed below for ARRAIGNMENT ONLY. Delinquency certified attorneys must immediately notify the court and the bar advocate program that they can only represent the client at arraignment. Assignment of a Youthful Offender certified attorney must be made immediately after the arraignment. A delinquency certified attorney may accept assignment of any Youthful Offender eligible case not listed below. If the case is indicted, a Youthful Offender certified attorney must be reassigned to the case.

Charges Requiring Youthful Offender Certification:

Aggravated Rape (M.G.L.c.265 §22)
Armed Assault with Intent to Rob/Murder (M.G.L.c.265 §18)
Armed Assault in a Dwelling (M.G.L.c.265 §18A)
Armed Burglary and Assault on Occupant (M.G.L.c.266 §14)
Armed Robbery (M.G.L.c.265 §17)
Assault with Intent to Maim with Injury (M.G.L.c.265 §14)
Assault with Intent to Maim, Kill, or Murder (M.G.L.c.265 §15)
Assault with Intent to Commit Rape (M.G.L.c.265 §24)
Attempted Murder (M.G.L.c.265 §16)
Attempted Arson (M.G.L.c.266 §5A)
Burglary and Assault in a Dwelling (M.G.L.c.266 §14)
Burning a Dwelling House (M.G.L.c.266 §1)
Burning a Public Building (M.G.L.c.266 §2)
Carrying Firearm Without a License (M.G.L.c.269 §10A, D)
Gun Cases (M.G.L.c.269 §10 para (a), (c), or (d), and §10E
Home Invasion (M.G.L.c.265 §18C)
Indecent Assault and Battery (M.G.L.c.265 §13B, F, H)
Kidnapping (M.G.L.c.265 §26)
Manslaughter (M.G.L.c.265 §13)
Mayhem (M.G.L.c.265 §14)
Motor Vehicle Homicide (M.G.L.c.90 §24G)
Possession of Shotgun - Barrel under 18"/Machine Gun (M.G.L.c.269 §10C)
Rape (M.G.L.c.265, §22, 22A, 25)
Statutory Rape (M.G.L.c.265 §23)

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If my client is held on bail, how do I find out where he or she is?
When juveniles are held on bail, they are transported from court to the DYS intake office for the area in which they live (not the area of the court from which they were arrested). DYS has four regions. Call the intake department for the appropriate region.

Metro - (617) 727-2995
Central - (508) 792-7611
Southeastern - (508) 821-2717 x817
Western - (413) 784-1193

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How can I get a bail review in superior court?
Juvenile bail review procedures vary among counties. It is important to find out what the practice is in your county. You should state on the record at arraignment that you are requesting a bail petition and ask the judge to complete his or her reasons for bail, obtain and file the proper paperwork, make sure DYS has the necessary paperwork to bring your client in for a bail petition, and inform your client's family where the bail review will be heard.

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Are there different issues regarding bail for children as opposed to adults?
M.G.L.c.276 §58 applies to juveniles -- a presumption of personal recognizance exists. Since you are dealing with children, courts often look at different factors. The court may be concerned about how your client is doing in school and at home, such as whether they comply with curfew and home rules. You should be prepared to answer these questions at arraignment. The judge may release your client under pre-trial conditions pursuant to M.G.L.c.276 §87. See Jake J. v. Commonwealth, 433 Mass. 70 (2000).

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Will my client's court case affect his or her ability to stay in school? What can I do to help? Will I get paid?
M.G.L.c.71 §37H _ provides that upon issuance of a criminal or delinquency complaint charging a student with a felony, the principal of the school the student attends may suspend him/her for as long of a period of time as the principal deems appropriate. The principal may suspend a student even if the alleged incident happened off school grounds, and has nothing to do with school. In order to suspend the student, the principal must determine that the student's continued presence at the school would have a "substantial detrimental effect" on the general welfare of the school. The student must be provided written notice of the charges and reasons for the principal's decision, before the suspension takes effect. The student must also receive notice of his or her right to appeal this decision to the superintendent of schools, and the process for pursuing this appeal. If the student wishes to appeal the principal's decision, he or she must notify the superintendent in writing no later than five days after the effective date of the suspension. If the student appeals the principal's decision, he or she is entitled to a hearing within three calendar days of the request. At the hearing, the student has the right to present oral and written testimony on his or her behalf and has the right to have an attorney present. The superintendent has the authority to overturn or alter the decision of the principal, including recommending an alternative educational program for the student. The superintendent must issue a decision within five calendar days of the hearing. If the student's due process rights were violated, the decision may be appealed to superior court.

A student may be expelled upon adjudication or conviction of a felony. The same notice, due process and appeals procedures stated above apply to children who are adjudicated delinquent or convicted of a felony.

Students who receive special educational services have more protections than regular education students. In order to exclude a special education student the TEAM must make a determination that the conduct in question was not a manifestation of the student's disability. Title 20, Chapter 33, Section 1415 of the United States Code outlines the procedural safeguards children with disabilities must be provided when charged in criminal or delinquency proceedings.

As the student's attorney, you can initiate the appeal process and in turn represent the student at the suspension or expulsion hearing. Effective representation at these proceedings requires that you first obtain a release from the student and his or her parent and assemble his or her school records. You should also obtain a copy of the school handbook and M.G.L.c.71, §37H_. You should also obtain a copy of Title 20, Chapter 33, Section 1415 if your client receives special education services.

At present, CPCS is only paying attorneys who call and receive individual permission to represent their clients at these hearings. Individual permission has been granted where the school hearing bears a direct relationship to the client's case, i.e., the offense is alleged to have happened on school grounds. To obtain individual permission, you should contact Helen Fremont at (617) 482-6212. Attorneys can also seek indigent court cost funds for the purposes of hiring an educational advocate, but should consult the CPCS guidelines for the specific definition of an education advocate prior to hiring one.

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Will a delinquency finding or youthful offender conviction affect my clients' immigration status? What can I do about this? How do I advise my client?
At this time we are unaware of delinquency cases or youthful offender cases leading directly to deportation. However, it seems likely that the INS will eventually view Youthful Offender adjudications as identical to adult convictions. It is also the case that both delinquency and youthful offender adjudications may be used now to exclude aliens who have left the country and are attempting to reenter. They may also be used to deny people green cards or citizenship. In Massachusetts, a "continued without a finding (CWOF)" disposition is a conviction for immigration purposes. It is always advisable to avoid adjudication if possible. It may also be important to avoid adjudications on certain charges. We highly recommend consulting with an immigration attorney before resolving the case. It is unlikely that an immigration attorney could give your client good advice without speaking with you. Contact the National Immigration Project at (617) 227-9727 for more detailed advice.

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Once a child is committed to DYS, how much time will they actually do? How do I advise my client about this?
DYS has a classification grid that outlines the minimum and maximum treatment times for every offense. DYS will use your client's most serious offense to determine where he or she will be placed on the grid. Your client will have to do at least the minimum time shown on the grid. It is best to stress to your client that this is the least amount of time that he or she will have to do in a program, and that he or she may have to do longer than this. The time is considered "treatment time" by DYS. The amount of time assigned to a client by DYS is considered a guideline. This means that your client will not be released until DYS believes that your client has completed his or her treatment and is ready to go back into the community. Unlike a state prison or house of correction sentence, it is not set in stone. You can obtain a copy of this grid from DYS by calling (617) 727-7575.

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Once my client is committed to DYS, what actually happens? Should I be assisting my client in this area? Will I get paid?
Once your client is committed to DYS, there is a 30-45 day assessment period. During this time, a program clinician or a DYS caseworker writes a case history about your client. If you have information that will assist your client, it is helpful to share this.

At the end of the assessment period, a staffing is held. A staffing is a meeting in which a DYS program clinician, a DYS caseworker and manager, your client and their family, and any other interested parties make a decision as to where your client will be placed and for how long. This is a very important meeting and you can assist your client by attending the staffing and advocating on his behalf. It is possible that you will have more knowledge about your client than anyone other professional at the table. You may also know facts about the client's case that may be helpful to explain since they may not be clear in the police reports. You should also prepare your client to talk about the facts of the case on which he or she was committed. Your client will be asked questions and will be expected to speak. At the end of the meeting, a recommendation will be made regarding the place and amount of time your client will do his treatment. The recommendation must be approved by the DYS Regional Area Review Team, which makes the final classification decision and can approve or disapprove of any recommended deviations from the DYS grid.

If you are have been appointed on the case and are billing CPCS for your services, you can bill for all post-dispositional advocacy you provide to your client through the DYS staffing process.

To find out the name of the caseworker assigned to your client, contact the appropriate region of DYS at the telephone numbers below:

Metro - (617) 727-2995
Central - (508) 792-7611
Southeastern - (508) 821-2717 x817
Western - (413) 784-1193

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Can a juvenile's family be evicted from public housing for crimes the juvenile has been charged with?
Both State and Federal law permit eviction of the family from public housing, based upon allegations of criminal conduct by anyone in the family. A conviction is not necessary.

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Will a delinquency or youthful offender conviction affect my clients' ability to get a driver's permit or license?
Yes. Many convictions will affect one's ability to get or keep a license. Most, if not all, convictions or delinquency findings for drug offenses will result in a license suspension. A license may also be suspended for motor vehicle offenses or offenses involving a car, e.g. larceny of a motor vehicle, operating to endanger, etc. The duration of the suspension depends upon the crime. You should consult M.G.L.c.90 §22 and inform your client of any consequences resulting from a conviction before he or she decides how to resolve the case. You should always look at the statute to see if your client is charged with an offense involving any type of suspension or revocation. You may also consult the Registry of Motor Vehicles to find out which offenses fall under administrative suspensions and revocations.

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In what type of cases can a child be indicted as a youthful offender and what are the consequences?
M.G.L.c.119 §54 sets forth the criteria needed to indict a child as a youthful offender. In order to be indicted, the child must be charged with a felony while between the ages of 14 and 17. Additionally, one of the following factors must exist: (1) the child has previously been committed to DYS, or (2) the offense involves the infliction or threat of serious bodily harm, or (3) the child is charged with a gun offense under paragraphs (a), (c) or (d) of §10 or §10E of M.G.L.c.269.

If a child is found guilty as a youthful offender he or she can receive any of the following sentences: (see M.G.L.c.119 §58)

1. The adult term as provided by law for the offense
2. A combination sentence - a commitment to DYS to age 21 with a suspended adult sentence to the house of corrections or state prison, as is provided by law. The suspended adult sentence may run concurrent with the DYS commitment. A child receiving a combination sentence is under the custody and control of DYS until age 21 or until discharged, and thereafter under the supervision of juvenile court probation until the age of 21, and thereafter under the supervision of adult probation. If a child does not successfully complete his or her DYS commitment he or she can be surrendered and the adult sentence can be imposed. The suspended portion of the sentence can run short of or go beyond age 21.
3. Commitment to DYS to age 21. While the statute does not state explicitly that commitment to age 21 cannot be suspended, judges have divergent views on this. There is a good argument that this is a legal sentence.

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Do youth have to register under the sex offender registry law?
Yes. The Sex Offender Registry applies to children as well as adults. Any child facing charges of a sexual nature should discuss the Sex Offender Registry with his or her attorney before making any decisions on the case. For the most up-to-date information on the Sex Offender Registry, call the Committee for Public Counsel Services at (617) 482-6212.

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