Section 649-101-4 - PREADJUDICATION1. Diversion/Informal Adjustment Defense counsel should be familiar with diversionary programs and alternative solutions available in the community. Such programs may include diversion, mediation, or other alternatives that could result in a juvenile's case being dismissed or handled informally. When appropriate and available, defense counsel should advocate for the use of informal mechanisms that could divert the juvenile's case from the formal court process.
2. Mental Health Examinations Preserve Rights in Mental Health Examinations. Throughout a juvenile proceeding, the judge may order a mental health examination of the juvenile. Admissions made during such examinations are not protected from disclosure. Defense counsel should ensure the juvenile understands the consequences of admissions during such examinations and advise the juvenile on the lack of confidentiality and that personal information about the juvenile or the juvenile's family will be revealed to the court or other personnel.
3. Competency and Insanity A. Competency (1) Defense counsel should be familiar with procedures for a determination of mental incompetence under the Maine Juvenile Code and Maine Rules of Criminal Procedure;(2) Although the juvenile's expressed interests ordinarily control, defense counsel may question capacity to proceed without the juvenile's approval or over the juvenile's objection, if necessary;(3) If at any time, the juvenile's behavior or mental ability indicates that he or she may be incompetent, or may be mentally retarded, defense counsel should request the court issue an order for a juvenile to be examined for competency to stand trial through State Forensics. Prior to the evaluation by the expert, defense counsel should request from the child and provide to the experts all relevant documents including but not limited to prior psychological/psychiatric evaluations, school records and any other important medical records; and(4) Defense counsel should prepare for and participate fully in the competency hearing.B. Defense of Insanity (1) Defense counsel should be familiar with the substantive law and procedures governing the insanity defense in Maine;(2) If defense counsel believes that the juvenile did not appreciate the wrongfulness of his/her actions at the time of the offense, the attorney should discuss with the juvenile the possibility of an insanity defense;(3) Before raising the issue of insanity in open court, defense counsel should consider retaining their own mental health professional to evaluate whether the juvenile appreciated the wrongfulness of his or her actions at the time of the offense. Prior to the evaluation by the expert, defense counsel should request from the child and provide to the experts all relevant documents including but not limited prior psychological/psychiatric evaluations, school records and any other important medical records;(4) Defense counsel must fully prepare the witnesses to testify on the juvenile's behalf in regard to the juvenile's sanity at the time of the offense;(5) Defense counsel must advise the juvenile of the potential dispositions available to the Court if he/she is found not guilty by reason of insanity; and(6) Defense counsel must be prepared to advocate on behalf of the juvenile against involuntary commitment and provide other treatment options such as outpatient counseling or services.4. Initial Appearance/ArraignmentA. If appointed prior to the juvenile's initial appearance, defense counsel should preserve the juvenile's rights at the initial appearance on the charges by reviewing discovery materials to determine probable cause, preserving the right to file motions, and entering a "no answer" to the charges in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.B. However, there may be reasons to enter a plea at arraignment such as to benefit from a concurrent sentence or a unique opportunity for a favorable disposition. Defense counsel is required to explain to the juvenile the consequences of waiving counsel and the collateral consequences of a plea entered.5. Bind-over A. Defense counsel must be familiar with the substantive law and procedures governing bind-over under the Maine Juvenile Code;B. Defense counsel must advise the juvenile of the consequences of bind-over and of the maximum possible sentence to which the juvenile would be exposed if tried as an adult;C. Defense counsel must investigate the circumstances of the alleged conduct and the circumstances of the juvenile to identify specific evidence relevant to the issue of bind-over;D. Defense counsel must identify and prepare witnesses, including expert mental health witnesses, to testify on behalf of the juvenile at any hearing on bind-over; andE. Defense counsel must prepare for and participate fully in any bind-over hearing.6. Investigation. Defense investigation is an essential aspect of competent representation. Defense counsel should: A. Review the court file and any prior court records of the juvenile, and other relevant records;B. Examine all charging documents to determine the specific charges that have been brought against the juvenile. The relevant statutes and precedents should be examined to identify: the elements of the offense(s) with which the juvenile is charged; both the ordinary and affirmative defenses that may be available; any lesser included offenses that may be available; and any defects in the charging documents, constitutional or otherwise, such as statute of limitations or double jeopardy;C. Identify and interview any potential defense witness;D. Interview any state witnesses;E. Where appropriate, visit and investigate the scene of the alleged act. Defense counsel should consider obtaining photographs, maps and measurements of the area; andF. Seek investigators and experts, as needed, to assist defense counsel in the preparation of a defense, in the understanding of the prosecution's case or in the rebuttal of the prosecution's case.6. Participate in Discovery Defense counsel should pursue discovery pursuant to the Maine Rules of Criminal Procedure in all cases and review the response to this quickly to determine what additional investigation or discovery needs to be conducted or obtained.
7. Develop a Theory of the Case During the investigation and trial preparation, defense counsel should develop and continually reassess a theory of the case. A theory of the case is one central theory that organizes the facts, emotions, and legal basis for a finding of not guilty or adjudication of a lesser offense, while also telling the juvenile's story of innocence, reduced culpability, or unfairness. The theory of the case furnishes the basic position from which defense counsel determines all actions in a case.
8. File Motions A. Defense counsel should file motions, or objections as necessary to zealously represent the juvenile. Defense counsel should file motions as soon as possible due to 21 day time constraints for filing pre-trial motions as set out in Maine Rules of Criminal Procedure.B. Motions should be filed in a timely manner, should comport with the formal requirements of the court rules and should succinctly inform the court of the authority relied upon in the case. When a hearing on a motion requires the taking of evidence, defense counsel's preparation for the evidentiary hearing should include: investigation, discovery and research relevant to the claim advanced; the subpoenaing of all helpful evidence and the subpoenaing and preparation of all helpful witnesses; and full understanding of the burdens of proof, evidentiary principles and trial court procedures applying to the hearing, including the benefits and costs of having the juvenile testify.C. Relief requested may include, but is not limited to: (1) In consultation with the juvenile, a mental or physical examination of the juvenile;(2) Relief due to mental incapacity, incompetency, mental retardation or mental illness;(3) Relief based on the unconstitutionality of the implicated statute or statutes;(4) Relief based on the insufficiency of the charging document;(5) Relief based on improper or prejudicial joinder or severance of charges or defendants in the petition or adjudicatory hearing;(6) Relief based on the failure of the state to meet its discovery obligations;(7) The suppression of evidence gathered as the result of violations of the Fourth, Fifth or Sixth Amendments to the United States Constitution, state constitutional provisions or statutes, including: (a) The fruits of illegal searches or seizures;(b) Involuntary statements or confessions;(c) Statements or confessions obtained in violation of the juvenile's right to an attorney or privilege against self-incrimination;(d) Unreliable identification evidence which would give rise to a substantial likelihood of irreparable misidentification.(8) Suppression of evidence gathered in violation of any right, duty or privilege arising out of state or local law;(9) Access to resources which or experts who may be denied to the juvenile because of his or her indigence;(10) The juvenile's right to a speedy trial;(11) The juvenile's right to a continuance in order to adequately prepare his or her case;(12) Matters of trial evidence which may be appropriately litigated by means of a pretrial motion in limine;(13) Motion for judgment of dismissal; or(14) Matters of trial or courtroom procedures, including inappropriate clothing or restraints of the juvenile.9. Plea Negotiations A. Defense counsel should participate in plea negotiations to seek the best result possible for the juvenile consistent with the client's interests and directions to his or her attorney.B. Prior to entering into any negotiations, defense counsel should have sufficient knowledge of the strengths and weaknesses of the case(s), or of the issue(s) under negotiation enabling defense counsel to advise the juvenile of the risks and benefits of settlement.C. Defense counsel should keep the client fully informed of any continued plea discussion and negotiations and convey to the juvenile any offers made by the prosecution for a negotiated settlement. Defense counsel should not accept any plea agreement without the juvenile's consent. The decision to enter a plea rests solely with the juvenile client and defense counsel should not attempt to unduly influence that decision or let a parent or other adult unduly influence whether a juvenile enters a plea.D. Notwithstanding the existence of ongoing tentative plea negotiations with the prosecution, defense counsel should continue to prepare and investigate the case in the same manner as if it were going to proceed to trial.E. In preparing to enter a plea before the court, defense counsel must explain to the juvenile the nature of the plea hearing and prepare the juvenile for the role he or she will play in the hearing, including answering questions of the judge and providing a statement concerning the offense and the appropriate disposition. Specifically, defense counsel should: (1) Be satisfied there is a factual basis for the plea or admission;(2) Make certain that the juvenile understands the rights he or she will waive by entering the plea and that the juvenile's decision to waive those rights is knowing, voluntary and intelligent;(3) Be satisfied that the plea is voluntary and that the juvenile understands the nature of the charges; and(4) Make certain that the juvenile fully and completely understands the conditions and limits of the plea agreement and the maximum punishment in juvenile court, sanctions and other consequences the juvenile will be exposed to by entering a plea.F. When the plea is against the advice of defense counsel or without adequate time to investigate, defense counsel should indicate this on the record.94- 649 C.M.R. ch. 101, § 4