La. Admin. Code tit. 22 § XV-1333

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-1333 - Transfer to Adult Proceedings

A. The attorney shall be familiar with laws subjecting a child client to the exclusive jurisdiction of a court exercising criminal jurisdiction, including the offenses subjecting the child client to such jurisdiction. Counsel should seek to discover at the earliest opportunity whether transfer will be sought and, if so, the procedure and criteria according to which that determination will be made.

B. Upon learning that transfer will be sought or may be elected, the attorney should fully explain the nature of the proceeding and the consequences of transfer to the child client and the child client's parents. In so doing, counsel may further advise the child client concerning participation in diagnostic and treatment programs that may provide information material to the transfer decision.

C. The attorney should be aware when an indictment may be filed directly in adult court by a district attorney and take actions to prevent such a filing including:

1. promptly investigating all circumstances of the case bearing on the appropriateness of filing the case in adult court and seeking disclosure of any reports or other evidence that the district attorney is using in his or her consideration of a direct filing;

2. moving promptly for appointment of an investigator or expert witness to aid in the preparation of the defense when circumstances warrant; and

3. where appropriate, moving promptly for the appointment of a competency or sanity commission prior to the transfer.

D. Where a district attorney may transfer the case either through indictment filed directly in adult court or by a finding of probable cause at a continued custody hearing in juvenile court, the attorney should present all facts and mitigating evidence to the district attorney to keep the child client in juvenile court. When a finding of probable cause triggers waiver of juvenile court jurisdiction automatically or at the discretion of the prosecutor, the attorney shall seek a postponement of the continued custody hearing and waive any time delays necessary to prepare adequately in order to mount an effective challenge to waive or to negotiate an alternative to waiver.

E. Where the district attorney makes a motion to conduct a hearing to consider whether to transfer the child client, the attorney should prepare in the same way and with as much care as for an adjudication. The attorney should:

1. conduct an in-person interview with the child client;

2. identify, locate and interview exculpatory or mitigating witnesses;

3. consider obtaining an expert witness to testify to the amenability of the child client to rehabilitation; and

4. present all facts and mitigating evidence to the court to keep the child client in juvenile court.

F. In preparing for a transfer hearing, the attorney should be familiar with all the procedural protections available to the child client including but not limited to discovery, cross-examination, compelling witnesses.

G. If the attorney who represented the child client in the delinquency court will not represent the child client in the adult proceeding, the delinquency attorney should ensure the new attorney has all the information acquired to help in the adult proceedings. If possible, the delinquency attorney should assist the new attorney, particularly if certain juvenile issues are to be litigated.

H. If transfer for criminal prosecution is ordered, the lawyer should act promptly to preserve an appeal from that order and should be prepared to make any appropriate motions for post-transfer relief.

La. Admin. Code tit. 22, § XV-1333

Promulgated by the Office of the Governor, Public Defender Board, LR 37:2605 (September 2011), Amended LR 45410 (3/1/2019).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148