Juvenile Indigent Defense Delivery System
Delaware provides counsel to indigent youth through a statewide Public Defender that handles juvenile cases. Additional services are provided by appointed attorneys in cases of conflict. Del. Code Ann. tit. 29, § 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.
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 “at all stages” of delinquency proceedings. Del. Fam. Ct. R. Crim. P. 44.1(a). The right to counsel specifically includes:
- Prior to the commencement of and during the arraignment. Del. Fam. Ct. R. Crim. P. 10(a).
- Prior to the commencement of and during the detention hearing. Del. Fam. Ct. R. Crim. P. 5.1(a)(2)
- Appeals (unless relieved by the Appellate Court), Del. Fam. Ct. R. Crim. P. 38.2(a).
Determination of Indigence
“Any person under the age of 18 arrested or charged with a crime or act of delinquency shall be automatically eligible for representation by the Office of Defense Services,” which renders indigency determination for youth unnecessary. Del. Code Ann. tit. 29, § 4602(c).
Waiver of Counsel
In Delaware, a youth can only waive the right to counsel after an in-person meeting with counsel advising the youth of the disadvantages and potential consequences of self-representation. Del. Fam. Ct. R. Crim. P. 44.1(d)(1). If the youth still wants to waive their right to counsel, the Court conducts a hearing, and the youth has the burden of proving the waiver is “knowing, intelligent, and voluntary by clear and convincing evidence.” Del. Fam. Ct. R. Crim. P. 44.1(d)(2). The Court will consider a number of factors including, but not limited to the youth’s mental and emotional health, the youth’s understanding, the guardian’s understanding, and any evidence of coercion. Del. Fam. Ct. R. Crim. P. 44.1(d)(3). The youth must submit a written statement signed by the youth and their guardian affirming that the youth followed the procedure and understands their rights and the potential consequences of waiver. Del. Fam. Ct. R. Crim. P. 44.1(d)(4). Even if the youth waived their right at an earlier stage, the youth may revoke that waiver at any time. Del. Fam. Ct. R. Crim. P. 44.1(d)(5).
A youth may not waive their right to counsel in any of the following situations:
- When the youth is accused of a felony, Del. Fam. Ct. R. Crim. P. 44.1(c)(1);
- When the youth is in the custody of the Division of Family Services, Del. Fam. Ct. R. Crim. P. 44.1(c)(2);
- When the youth is younger than 16 years old, Del. Fam. Ct. R. Crim. P. 44.1(c)(3);
- When the alleged victim is a family member or the Court determines has a conflicting interest, Del. Fam. Ct. R. Crim. P. 44.1(c)(4).
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.” Del. Code Ann. tit. 10, § 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(a)(1). Provisions for the detention of juveniles are found in Del. Code Ann. tit. 10, §§ 1004, 1005, 1007, and 1009, and in Del. Fam. Ct. R. Crim. P. 5 and 5.1.
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.
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:
- On Appeal (unless relieved by the Appellate Court) Del. Fam. Ct. R. Crim. P. 38.2.
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:
- No statute specifies the youngest age at which a juvenile can be adjudicated delinquent;
- Family court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court. Code Ann. tit. 10, § 901.
- Family court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. Code Ann. tit. 10, § 928(b).
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:
- Discretionary Judicial Waiver: The Family Court can conduct a hearing for amenability to the rehabilitative process whenever a youth is charged with delinquency or when the youth is over age 14 and the prosecutor requests the transfer. Code Ann. tit. 10, § 1010(c)(2).
- Mandatory Judicial Waiver: If the youth escaped a facility and allegedly committed what would constitute a felony with a likelihood of conviction, “the Court shall defer further proceedings in the Family Court and shall conduct a hearing to determine whether the child should be referred to the Superior Court for trial as an adult. If, at the conclusion of the hearing, the Court finds that evidence demonstrates that there is a fair likelihood that the child may be convicted of the charge or charges, it shall refer the child to the Superior Court for trial as an adult.” Code Ann. tit. 10, § 1010(e).
- Statutory Exclusion: A youth is tried as an adult if the youth has allegedly committed certain serious statutorily delineated offenses, or the youth is over age 16 and has previously been adjudicated for one or more offenses that would constitute a felony and the current allegation is a certain statutorily delineated offense, or the youth is deemed not amenable to the rehabilitative process. Code Ann. tit. 10, § 1010(a).
- Once an Adult, Always an Adult: Any youth previously deemed nonamenable to the rehabilitative process or previously denied transfer to Family Court is tried as an adult for any subsequent offense. Code Ann. tit. 10, § 1010(c)(3).
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.
The Delaware Assessment was completed in 2017.