child and community from consequences of future
criminal conduct, was non-punitive in nature, and that
the procedural protections afforded pretrial detainees
(e.g., notice, a hearing, a statement of facts and reasons,
a formal probable cause hearing shortly thereafter)
satisfied the due process clause of the Fourteenth
Amendment. (See N.J.S.A. 2A:4A-34 and R. 5:21-5, for
New Jersey’s standards for detention.)
See N.J.S.A. 2A:4A-36; N.J.S.A. 2A:4A-37; N.J.S.A.
2A:4A-23; R. 5:21-4 and R. 5:22-3 concerning the place
of detention. See also State in the Interest of M.S., 73 N.J.
238 (1977), decided under the 1974 statute, concerning
the difference between a non-restrictive shelter facility for
JINS and a physically restrictive detention facility.
State in the Interest of C.B., 173 N.J. Super. 424 (App.
Div.), certif. denied, 84 N.J. 482 (1980), concluded that
the prior rule governing a detention hearing [prior R. 5:8-
6(d)] did not expressly mandate a dismissal of charges or
release of the detainee if the adjudicatory hearing was not
commenced within 30 days from the onset of detention,
but merely required the scheduling of a hearing on the
complaint within 30 days of the date of the first detention
hearing at which the juvenile is represented. (Currently
N.J.S.A. 2A:4A-38 and R. 5:21-7 require that the
adjudicatory hearing be held, not merely scheduled,
within the 30 day period, although this time is
extendable by the court for good cause.)
V. WAIVER
A. Involuntary Transfer to Adult Court (N.J.S.A. 2A:4A-
26; R. 5:22-2)
- Provision of a Waiver Hearing with Counsel
Kent v. United States, 383 U.S. 541 (1966); State v.
Lueder, 74 N.J. 62 (1977); State v. Tuddles, 38 N.J. 565,
572-573 (1962); State v. Van Buren, 29 N.J. 548, 554-
558 (1959). In Kent, the United States Supreme Court
held that prior to waiver of jurisdiction, a youth is
entitled to a hearing, at which he is represented by
counsel, as well as access to the records being considered
by the court and a statement of the reasons for its
decision. It is unclear whether this ruling was of
constitutional import or merely based upon the Court’s
supervisory powers over federal and the District of
Columbia tribunals. Since in Tuddles and Van Buren the
New Jersey Supreme Court required the provisions of a
waiver hearing and counsel in this state even prior to the
United States Supreme Court’s ruling in Kent, the issue
is academic. In Lueder, our State Supreme Court assumed
that Kent was of constitutional magnitude, but
nevertheless, declined to specifically resolve the issue.State v. Jack, 144 N.J. 240 (1996), held that a
juvenile is entitled to the effective assistance of counsel at
a waiver hearing, measured by the principles of Strickland
v. Washington, 466 U.S. 668 (1984) and United States v.
Cronic, 466 U.S. 648 (1984). However, more is required
to justify a new waiver hearing than a prima facie showing
that the juvenile’s counsel failed to present evidence of a
potential for rehabilitation. The juvenile must also show
the reviewing court that there was evidence of a genuine
potential for rehabilitation that counsel did not present
to the juvenile court. If so, on remand, the juvenile court
should then consider whether that potential for
rehabilitation was not initially presented due to
ineffectiveness of counsel and whether a showing of that
potential by effective counsel could have made a
difference in the waiver proceedings. Only if both
answers are yes should a new waiver proceeding be
ordered.In State v. Bryant, 237 N.J. Super. 102 (App. Div.
1988), rev’d o.g. 117 N.J. 495 (1989), counsel for a 17
year old juvenile provided ineffective assistance at the
waiver hearing by failing to adduce any meaningful
evidence with respect to the juvenile’s likelihood of
rehabilitation. The failure was not a mere choice by
tactics, but instead was based on counsel’s incorrect belief
that he could not present inconsistent defenses of
likelihood of rehabilitation and lack of guilt. But for this
error, there was a reasonable probability in this case that
the result of the waiver hearing would have been different.
The juvenile’s adult convictions for simple assault,
possession of a handgun for an unlawful purpose and
possession of the handgun without a permit were thus
reversed, and the matter remanded for a new waiver
hearing.In State v. Ferguson, 255 N.J. Super. 530 (App. Div.
1992), a 14 year - 8 month old juvenile convicted of
murder and sentenced to a 30 year term without parole
as an adult received ineffective assistance of counsel at his
fundamentally flawed involuntary waiver hearing
requiring a new waiver hearing. Counsel failed to inform
the juvenile or his parents of his right to testify at the
waiver hearing. The privately retained, inexperienced
defense counsel, hampered by limited funds, also
inadequately prepared for the waiver hearing. He spent
little time interviewing witnesses, displayed little
understanding of the function of a waiver hearing in a
murder case, withheld or failed to obtain crucial data for
his expert, and made a wholly inadequate presentation on