Waiver of Jurisdiction:
Iowa Code gives the juvenile court exclusive original jurisdiction in proceedings concerning a child who is alleged to have committed a delinquent act unless otherwise provided by law. Iowa Code 232.8 (2009).
Exceptions to Juvenile Court Exclusive Original Jurisdiction
Violations of chapter 321 (Motor Vehicles and Law of the Road), 321G (Snowmobiles), 321I (All-Terrain Vehicles), 453A (Cigarette and Tobacco), 461B (Use of State Waters by Nonresidents), 462A (Water Navigation Regulations), 481A (Wildlife Conservation), 481B (Endangered Plants and Wildlife), 483A (Fishing and Hunting), 484A (Migratory Game Birds), or 484B (Hunting Preserves)- (if would be simple misdemeanors if committed by an adult), or violations of county or municipal curfew or traffic ordinances are excluded from jurisdiction of juvenile court and are prosecuted as simple misdemeanors. Iowa Code 232.8(1)(a) (2009). Violations by a child 16 or older of section 124.401 (1)(e) (firearm with Prohibited Acts), (f) (Offensive weapon with Prohibited Acts), 723A.2 (Criminal Gang Participation) which involve violation of chapter 724 (Weapons), violation of chapter 724 (Weapons) which constitutes a felony, or forcible felonies are excluded from jurisdiction of the juvenile court unless a “reverse waiver” occurs with a motion for good cause approved by the court to transfer to juvenile court. Forcible felonies (Iowa Code section 702.11) include:
i. Murder and voluntary manslaughter
ii. Assault causing serious injury
iii. Sexual assault
iv. Kidnapping
v. First degree arson
vi. First degree burglary
vii. Robbery
viii. Felonious child endangerment
If the child is waived to district court, the juvenile court is released and the child is subject to the adult criminal procedures and penalties.
Sentencing in district court is pursuant to section 124.401B (controlled substances on certain property), 902.9 (felony) or 903.1(Misdemeanor).
Originate in Juvenile Court until Waiver
This means that proceedings concerning delinquent acts must originate in juvenile court (except for the above exceptions) and continue in juvenile court until that court waives jurisdiction pursuant to Iowa Code section 232.45. State v. Yodprasit, 564 N.W.2d 383, 385 (Iowa 1997). The waiver process is dispositional and not adjudicatory. Because there is no determination of guilt and no punishment is given, the full panoply of trial rights is inapplicable. State v. Wright, 456 N.W.2d 661, 665 (Iowa 1990). A waiver of jurisdiction to adult court is interlocutory in nature. In re Clay, 246 N.W.2d 263,266 (Iowa 1976). Since the order is interlocutory (not final), permission must be sought to appeal under Iowa Rule of Appellate Procedure 2 (A final order is appealable as of right.) An interlocutory order is one that is not finally decisive of the case. In re W.D. III, 562 N.W.2d 183,185 (Iowa 1997) (quoting Williams v. Bourne, 79 N.W.2d 751, 754 (Iowa 1956).
Due Process Required
Before a juvenile court can enter a valid waiver order, due process requires an investigation, a statement by the juvenile court of its reasons for waiving jurisdiction, an opportunity for a hearing which may be informal, and a right to counsel at the waiver hearing. Kent v. U.S., 383 U.S. 541, 560 (1966).
Procedures and Requirements for Waiver
The procedures and requirements for waiver of jurisdiction from juvenile court to District Court are contained in Iowa Code section 232.34 (2009).
Evidence at Waiver Hearing and Right to Confrontation.
According to the code, all relevant and material evidence shall be admitted at the waiver hearing. The Courts have determined that a juvenile has no statutory right to confrontation when reliable hearsay evidence is offered and accepted. Hearsay evidence is not objectionable when there are indicia of trustworthiness and when the evidence was not obtained in violation of the juvenile’s constitutional rights. State v. Wright, 456 N.W.2d 661, 664 (Iowa 1990). The juvenile court is the final arbiter as to what weight, if any, such evidence should receive. Id. A report to the court must be trustworthy and a copy of the report must be made available to counsel before the waiver hearing. Wright at 665.
The sixth amendment specifically applies to criminal prosecutions, but waiver hearings are not criminal prosecutions so the right of confrontation does not apply to waiver hearings. Id.
Waiver Requirements.
The court may waive its jurisdiction at the conclusion of the hearing if all of the following apply:
(6)(a). The child is fourteen years of age or older.
(b) The court determines, or has previous determined in a detention hearing under section 232.44, that there is probable cause to believe that the child has committed a delinquent act which would constitute the public offense.
(c) The court determines that the state has established that there are not reasonable prospects for rehabilitating the child if the juvenile court retains jurisdiction over the child and the child is adjudicated to have committed the delinquent act, and that waiver of the court’s jurisdiction over the child for the alleged commission of the public offense would be in the best interests of the child and the community,
Or
7(a). The child is fifteen yours of age or younger
(b). The court determines, or has previously determined in a detention hearing under section 232.44, that there is probable cause to believe that the child has committed a delinquent act which would constitute a public offense under section 232.8, subsection 1, paragraph “c”, notwithstanding the application of that paragraph to children aged sixteen or older.
(c). The court determines that the state has established that there are not reasonable prospects for rehabilitating the child, prior to the child’s eighteenth birthday, if the juvenile court retains jurisdiction over the child and the child enters into a plea agreement, is a party to a consent decree, or is adjudicated to have committed the delinquent act.
Factors to be used in considering (6)(c) and (7)(c) above the following factors are to be considered (232.45 (8)(a)-(b) and (9)(a)-(b):
1. The nature of the alleged delinquent act and the circumstances under which it was committed.
2. The nature and extent of the child’s prior contacts with juvenile authorities, including past efforts of such authorities to treat and rehabilitate the child and the response to such efforts.
3.
a. For child age 14 or older: The programs, facilities, and personnel available to the juvenile court for rehabilitation and treatment of the child, and the programs, facilities and personnel which would be available to the court that would have jurisdiction in the event the juvenile court waives its jurisdiction so that the child can be prosecuted as an adult.
b. For the child 15 or younger: The age of the child, the programs, facilities, and personnel available to the juvenile court for rehabilitation and treatment of the child, and the programs, facilities, and personnel which would be available to the district court after the child reaches the age of 18 in the event the child is given youthful offender status.
The Juvenile Probation Officer’s opinion should be entitled to considerable weight. State v. Greiman, 344 N.W.2d 249, 251 (Iowa 1984).
Irregularities in Waiver Proceeding:
Irregularities in a waiver proceeding do not deprive the district court of subject matter jurisdiction over criminal proceedings involving the juvenile and these irregularities can be waived if the juvenile pleads guilty in district court. State v. Yodprasit, 564 N.W.2d 383, 387 (Iowa 1997).
Right to Counsel.
The right to counsel in juvenile proceedings is covered in Iowa Code section 232.11 (2009). Under Iowa Code, a child has the right to counsel at :
a. the time taken into custody for alleged delinquent acts and under questioning,
b. detention or shelter care hearing,
c. waiver hearing,
d. adjudicatory hearing,
e. dispositional hearing, and
f. hearings to review or modify a dispositional order.
A child cannot waive the right to counsel at the above (except for (a)). In subparagraph (a), the right to counsel shall not be waived by a child less than 16 years of age without the written consent of the child’s parent, guardian, or custodian. The waiver of a child at least 16 years of age is valid only if a good faith effort has been made to notify the child’s parent, guardian, or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child. Iowa Code section 232.11(2) (2009). Counsel can be appointed if the parent, guardian, or custodian cannot pay any part of the expenses of counsel.
A statement obtained from a juvenile without a valid waiver of counsel under 232.11(2) is per se inadmissible in evidence in district court proceedings by operation of Iowa Code section 232.45(9). In re J.A.N., 346 N.W.2d 495, 498 (Iowa 1984).
Statement Admissibility
Statements made by the child after being taken into custody and prior to intake are admissible as evidence into chief against the child in subsequent criminal proceedings provided the statements were made with the advice of the child’s counsel or after waiver of the child’s right to counsel and provided that the court finds the child had voluntarily waived the right to remain silent. Other statements made by a child are admissible as evidence in chief provided that the court finds the statements were voluntary. In making its determination, the court may consider any factors it finds relevant and shall consider the following factors:
a. Opportunity for the child to consult with a parent, guardian, custodian, lawyer or other adult.
b. The age of the child.
c. The child’s level of education.
d. The child’s level of intelligence.
e. Whether the child was advised of the child’s constitutional rights.
f. Length of time the child was held in shelter care or detention before making the statement in question.
g. The nature of the questioning which elicited the statement.
h. Whether physical punishment such as deprivation of food or sleep was used upon the child during the shelter care, detention, or questioning. Iowa Code section 232.45(11).
A child does not need be informed that the case can be waived to district court. State v. O’Connor, 346 N.W.2d 8 (Iowa 1984). It is considered under the totality of factors for voluntariness of a juvenile statement based on the factors above.
Statements made by the child during intake or at a waiver hearing… are not admissible as evidence in chief against the child in subsequent criminal proceedings over the child’s objection… Iowa Code section 232.45 (11) (2009).
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