Ohio Supreme Court justices are reviewing a proposed new rule, Juvenile Rule 3, which would make consultation with an attorney mandatory before a juvenile charged with a crime waives his or her right to legal representation. If approved by the justices, the Ohio General Assembly will determine by July 1, 2012 whether or not the proposed Rule is adopted. The rule change was proposed by the Ohio Supreme Court rules committee.
Currently, Ohio is one of fourteen states (including Missouri and Kansas) that has codified the “Judicial Colloquy Requirement” which is the least restrictive approach to a waiver of representation. Under this approach, the juvenile is advised by the judge of his right to counsel and of the potential consequences of waiving said right. If the proposed Juvenile Rule 3 passes, Ohio will join eight other states which require attorney consultation prior to the waiver of counsel. Indiana is reviewing a similar rule change which would put it in line with these states as well. Kentucky is one of two states (along with New York) which presumes juvenile incompetence to waive the right to counsel and requires a full hearing, at which the juvenile is represented by counsel, to determine whether a juvenile’s decision to proceed pro se is voluntary, knowing, and intelligent. Arkansas requires a parent be present at the judicial colloquy, while Tennessee goes a step further and requires a parental consultation prior to waiver.
Proponents of the proposed Rule change argue that juveniles and their parents are often overwhelmed and unaware of the help that an attorney can provide them. They argue that it is not sufficient to place the burden solely on juvenile court judges to provide juveniles with the information they need to best defend themselves. Franklin County’s public defender’s office, in an effort to better serve its clients, began providing every juvenile with an attorney consultation in November 2011. The Juvenile Unit chief of the Franklin County public defender’s office stated that the change was not made to comply with the proposed Rule 3, but proved to be the positive change envisioned by Rule 3. Every juvenile is provided consultation with an attorney prior to waiving his or her right to counsel. The change has not created a logistical or financial burden, as opponents of the Rule argue should be the reasons to reject the Rule.
While financial burdens are the main concern of the Rule’s opponents, other states that require attorney consultation have not been hindered by their policies. In Florida, the additional costs created by the rule are offset by the smaller number of cases reversed on appeal because of a lack of counsel. In Maryland, many courts now have lower juvenile cases than they did before the rule was enacted. Ohio advocates argue that juveniles without an attorney are more likely to be sentenced to detention, which would prove more costly than providing counsel at the outset.
The new Rule is supported by the American Civil Liberties Union, the Children's Law Center, and the Ohio Public Defender's Office. It is opposed by judicial groups and the County Commissioners Association of Ohio.
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