August 31, 2005
I. The Juvenile System
Confidentiality in the adult criminal justice system is essentially non-existent,
since such proceedings are constitutionally public. Intense media scrutiny is often focused upon certain criminal cases. The juvenile system operates under a very different set of rules and philosophies, which shield a juvenile and his court records from public examination.
Generally speaking, the entire juvenile process is confidential. The police are not permitted to divulge the names or records of juveniles placed under arrest to the public. Juvenile Court hearings are held in closed courtrooms in the presence of only court staff, juvenile prosecutors, probation officers and defense counsel. Upon disposition, juvenile records are subject to erasure.
Representation of a juvenile in this context begins when the youth is the focus of a school or police investigation. It is at this point in the proceedings when representation by counsel is needed. A child is not obligated to speak to anyone if he/she is the target of a criminal inquiry, be it police officers or school officials. It is noteworthy that any discussions with school officials will not likely be kept confidential inasmuch as the school officials are obligated by law to turn certain information over to the police and vice-versa (C.G.S. Section 10-233h). Simultaneous sanctions can be imposed by the school by means of expulsion or suspension, and by the police in terms of an arrest. Thus, there is interplay early on between school officials and police in the juvenile setting but to the extent this disclosure is not permissible to the public, confidentiality as it relates to the public and media exists.
B. The Court Process
The decision to "arrest" is made in the juvenile context by the local police, prosecution, or in some cases by the Office of Juvenile Probation. If the evidence warrants, a youth is served with a juvenile summons form. This is done in the presence of the youth's parent or guardian. In matters that are not serious, the youth is released with the summons which contains his/her first court appearance. In more serious cases, a child who is the subject of a delinquent complaint can be detained (or placed in jail) in a juvenile facility, subject to a closed hearing to determine whether the detention should continue. As a general rule that which occurs in the juvenile courthouse remains confidential. Victims in juvenile cases have certain limited rights in this area. After each individual case, the court is cleared and only personnel essential to the particular juvenile case being presented are permitted in the courtroom.
i. Types of Disposition
Typically there are two types of disposition available in the juvenile court, judicial disposition or non-judicial disposition. A non-judicial disposition involves supervision by the Office of Probation. The youth is required to waive in writing his/her constitutional right to remain silent and give a confidential statement to the probation officer assigned to the case. This statement acknowledges the youth's wrongdoing. If the case is treated non-judicially, once the probationary conditions are met, the matter is considered resolved and subject to erasure pursuant to C.G.S. Section 46b-146. If the child fails to comply with probationary conditions, the case can be treated judicially. All records generated are subject to confidentiality by law.
A judicial disposition requires processing the case through the juvenile court system. The youth is presented or "arraigned." Disclosure of the police report and state file is limited to pertinent court staff, including probation officers, judges, and juvenile prosecutors. Defense counsel for the youth may also obtain a copy but should not disseminate copies to third parties to preserve the confidentiality. At the arraignment, the court sets a scheduling order that includes pretrial detention hearings, if necessary, pretrial conferences between counsel and the juvenile prosecutor (and in some courts, the presiding judge), and ultimately a "return to court" date to enter a disposition or have a trial presided over by a juvenile judge. The trial is generally considered the "adjudication" hearing and subsequent to said hearing, a "dispositional," or sentencing hearing is held. All hearings are closed to the public, and records reflecting the proceedings are again, confidential.
The juvenile system is akin to the adult criminal justice system inasmuch as one is arraigned and defense counsel is given the opportunity to negotiate plea dispositions short of full adjudicatory hearings. These exchanges are usually "off the record," but are nevertheless confidential. If a plea agreement is arrived at, in most cases, the juvenile can enter a guilty plea without incurring an adult criminal record.
ii. Predispositional Studies
Notwithstanding any agreed upon disposition arrived at by counsel, the Office of Probation is still obligated to prepare a confidential pre-dispositional study in advance of the dispositional hearing. The study involves an interview of the youth and his family, usually a home visit, background check, including contact with school officials, and inquiry into any physical or psychiatric treatment. If a physical and mental examination is deemed necessary by the court, it can be ordered in connection with the pre-dispositional study. Counsel are provided with a copy of the study in advance of the dispositional hearing, but the document is returned to the Office of Probation at the conclusion of the case.
iii. Disclosure of Records
In delinquency proceedings, the arrest and court records are subject to disclosure in only limited circumstances. In general, a court order is required. Persons with a "legitimate interest" in proceedings may petition the court, as well as victims of criminal offenses. Obviously, counsel for the child is afforded access to relevant records, as are the youth's parents, the youth himself, and law enforcement and prosecutorial officials conducting legitimate criminal investigation. This disclosure does not extend to the public, but only to the specific individual or agency seeking disclosure.
C. Transfer of Juvenile Cases to Adult Court
In the state court criminal justice system there are three court levels: the juvenile
court, the geographic area courts or "GA" courts, and the Part A Criminal Court in the various judicial districts. Juvenile cases are confidential and involve children under the age of 16. GA courts handle motor vehicle matters, misdemeanors, and some felony cases. The Part A court handles the most serious of felony cases. If a juvenile offense is deemed to be of a serious enough nature, the case can be transferred to the adult docket and absent a court order sealing the case, confidentiality ceases to exist. Cases can be transferred from Juvenile Court to either a GA court or in the most serious cases to the Part A level courts.
The confidentiality of records is always subject to a human element. Inadvertent disclosure is always a remote possibility unless or until records are purged or physically destroyed. The best way to guard against such disclosure is to move for erasure (i.e., physical destruction) of the subject records. The criterion for erasure of records is quite simple. The youth must reach age 16 and have no subsequent juvenile criminal proceedings brought. Two years from the date of discharge from the court must elapse before erasure is considered and this time period is four years for youths adjudicated "serious juvenile offenders." Erasure involves destruction of records, including police records, court records, fingerprints and the like.