BILL REQ. #:  H-0986.1 

Read first time 01/27/2005.   Referred to Committee on Juvenile Justice & Family Law.

     AN ACT Relating to waiver of counsel in juvenile proceedings; and amending RCW 13.40.140.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 13.40.140 and 1981 c 299 s 11 are each amended to read as follows:
     (1) A juvenile shall be advised of his or her rights when appearing before the court.
     (2) A juvenile and his or her parent, guardian, or custodian shall be advised by the court or its representative that the juvenile has a right to be represented by counsel at all critical stages of the proceedings. ((Unless waived,)) Counsel shall be provided to a juvenile who is financially unable to obtain counsel without causing substantial hardship to himself or herself or the juvenile's family, in any proceeding where the juvenile may be subject to transfer for criminal prosecution, or in any proceeding where the juvenile may be in danger of confinement. The ability to pay part of the cost of counsel does not preclude assignment. In no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay therefor. The juvenile shall be fully advised of his or her right to an attorney and of the relevant services an attorney can provide.
     (3) In any proceeding in which a child has a right to the assistance of counsel under constitutional, statutory, or common law, or by court rule, the child may not waive this right except as provided in this subsection.
     (a) A parent, guardian, or custodian of a child may not waive the child's right to the assistance of counsel.
     (b) In any proceeding in which a child has a right to the assistance of counsel under constitutional, statutory, or common law, or by court rule, and the child indicates a desire to waive that right, the court may not accept the waiver unless:
     (i) The child is in the presence of counsel and has consulted with counsel; and
     (ii) The court determines that the waiver is knowing and voluntary.
     (c) The court shall find that the waiver was knowing and voluntary only if, after appropriate questioning in open court and on the record, it finds that the child fully comprehends:
     (i) The nature of the allegations and the proceedings, and the range of allowable dispositions;
     (ii) That counsel would be of valuable assistance in determining and presenting any defenses to the allegations in the petition or charge, or other mitigating circumstances;
     (iii) That the right to the assistance of counsel includes the right to the prompt assignment of an attorney, without charge to the child or the child's parents if they are financially unable to obtain private counsel;
     (iv) That even if the child intends not to contest the petition or charge, counsel may be of substantial assistance in developing and presenting material that could favorably affect the disposition;
     (v) That among the child's rights at any hearing are the right to call witnesses on the child's behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of the elements of the charge or status offense.
     (d) In making its judgment, the court should consider evidence of the child's school performance and any testing which the school may have conducted.
     (e)(i) Unless the court dismisses the case, if a child appears without counsel for any hearing, including a waiver hearing, and the child has not previously waived the right to the assistance of counsel in accordance with this subsection, the court shall continue and the clerk shall reschedule the hearing, and the clerk shall issue a notice of the date, time, and location of the hearing at least ten days prior to the date of the hearing.
     (ii) The continuance of a hearing may not be a basis for detaining the child.
     (4) The right to counsel includes the right to the appointment of experts necessary, and the experts shall be required pursuant to the procedures and requirements established by the supreme court.
     (((4))) (5) Upon application of a party, the clerk of the court shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents, or other tangible objects at any hearing, or such subpoenas may be issued by an attorney of record.
     (((5))) (6) All proceedings shall be transcribed verbatim by means which will provide an accurate record.
     (((6))) (7) The general public and press shall be permitted to attend any hearing unless the court, for good cause, orders a particular hearing to be closed. The presumption shall be that all such hearings will be open.
     (((7))) (8) In all adjudicatory proceedings before the court, all parties shall have the right to adequate notice, discovery as provided in criminal cases, opportunity to be heard, confrontation of witnesses except in such cases as this chapter expressly permits the use of hearsay testimony, findings based solely upon the evidence adduced at the hearing, and an unbiased fact-finder.
     (((8))) (9) A juvenile shall be accorded the same privilege against self-incrimination as an adult. An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding may not be received in evidence at an adjudicatory hearing over objection. Evidence illegally seized or obtained may not be received in evidence over objection at an adjudicatory hearing to prove the allegations against the juvenile if the evidence would be inadmissible in an adult criminal proceeding. An extrajudicial admission or confession made by the juvenile out of court is insufficient to support a finding that the juvenile committed the acts alleged in the information unless evidence of a corpus delicti is first independently established in the same manner as required in an adult criminal proceeding.
     (((9))) (10) Waiver of any right which a juvenile has under this chapter must be an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived.
     (((10))) (11) Whenever this chapter refers to waiver or objection by a juvenile, the word juvenile shall be construed to refer to a juvenile who is at least twelve years of age. If a juvenile is under twelve years of age, the court shall not accept a waiver of counsel. If a juvenile is under twelve years of age, the juvenile's parent, guardian, or custodian shall give any waiver or offer any objection contemplated by this chapter.