Delaware

Juvenile Indigent Defense Delivery System

DEDelaware provides counsel to indigent youth through a statewide Public Defender that handles juvenile cases. 29 Del. Code Ann. § 4601. Additional services are provided by appointed attorneys in cases of conflict. 29 Del. Code Ann. § 4605. Indigent defense services in Delaware are state-funded.

Delaware has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.

Court Rules

In addition to statutes and case law, juvenile and family court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. Delaware’s delinquency proceedings are governed by the Delaware Family Court Rules of Criminal Procedure.

Right to Counsel

Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.

In Delaware, youth in family court have the right to counsel:

Determination of Indigence

Delaware has no presumption of indigence in family court proceedings. Before arraignment, the indigence determination may be made by the public defender. At or after arraignment, the court makes the determination. 29 Del. Code Ann. § 4602(b). The financial situation of the child’s custodian is considered in the determination of whether a child qualifies for a public defender. Del. Fam. Ct. R. Crim. P. 44(a). However, a child may have counsel appointed upon request if the child’s custodian is not indigent but has refused to retain a lawyer for the child.  Del. Fam. Ct. R. Crim. P. 10(a)(2) and 44(a).

Waiver of Counsel

The only restriction on a juvenile’s ability to waive the right to counsel is set out in Court Rules.

A waiver of the right to counsel by a child shall be in writing unless made in Court on the record or in the presence of the custodian. Del. Fam. Ct. R. Crim. P. 44(a).

Detention Provisions

When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Delaware, when a peace officer takes a child into custody and charges the child with a delinquent act, the officer must “take the child directly before the Court if the Court is in session or take the child before a court or commissioner for disposition in accordance with § 1005 of this title.” 10 Del. Code Ann. § 1004. “If a child has been detained by another court pursuant to Rule 5(b)(2)(c), a detention hearing shall be held by this Court on the next day it is in session.” Del. Fam. Ct. R. Crim. P. 5.1. Provisions for the detention of juveniles are found in 10 Del. Code Ann. §§ 1004, 1005, and 1007, and in Del. Fam. Ct. R. Crim. P. 5.

The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.

Post-Disposition Advocacy

The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Delaware court rules list one post-disposition proceeding at which youth have a right to counsel.

In Delaware, youth have a right to counsel in the following post-disposition proceedings:

NJDC’s Post-Disposition Page has more information on this topic from a national perspective.

Ages of Juvenile Court Jurisdiction

The age of a child who comes within the jurisdiction of the state’s juvenile or family courts is defined by state law. In Delaware:

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. Delaware has four ways that juveniles can be prosecuted as adults:

Assessments

NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.

NJDC has not yet conducted an assessment of the juvenile indigent defense system in Delaware. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.

 Current through January 2014.