(a) Right To Attorney.
(1) Notification of Right to Attorney. In all proceedings in which a child is by law entitled to representation by an attorney, the court shall expressly inform the child of the right to an attorney. If a child waives the right to an attorney, the court shall inform the child of the continuing right to an attorney at all stages of the proceedings.
(2) Waiver of Right to an Attorney. No child shall be deemed to have waived the assistance of an attorney until and unless:
(A)The child has been fully informed of the right to an attorney;
(B)The child subsequently knowingly and voluntarily waives the right to an attorney; and
(C) The waiver is confirmed in writing by the child.
(3) Appointment of Attorney. When a child who is entitled to a court-appointed attorney does not knowingly and voluntarily waive the right to an attorney and cannot afford an attorney, or when the child’s parents or other persons legally obligated to care for and support the child are able to afford an attorney but refuse to hire one, the court shall appoint an attorney and assess attorney’s fees pursuant to T.C.A. § 37-1-150.
(b) Notification And Waiver of Additional Rights at a Hearing.
(1) Notification of Rights to a Child Who has Waived the Right to an Attorney. At the outset of any juvenile court hearing, the court shall advise any child who has waived the right to an attorney of:
(A)The right to remain silent;
(B)The right to plead not guilty;
(C) The right to a trial;
(D)The right to confront and cross-examine adverse witnesses;
(E) The right to present testimony on the child’s behalf;
(F) The right to subpoena evidence on the child’s own behalf;
(G)The right to appeal any final order, the time limits for and manner in which the right to appeal can be perfected, and the right to an attorney on appeal.
(2) Notification and Waiver Where Child Represented by An Attorney. When the child is represented by an attorney, the attorney shall fully advise the child of the child’s rights under the Constitution of the United States, the Constitution of Tennessee, any other law, and any rule of court. The child shall make the decision whether or not to waive those rights, after full consultation with the child’s attorney. The obligation of the attorney to advise the child of the child’s rights in no way diminishes the Court’s obligations both to advise the child of the child’s rights and to ascertain whether waivers of those rights are made knowingly and voluntarily.
(3) Waiver of Rights Where Child Not Represented by An Attorney. When the child is not represented by an attorney, the child may not waive any rights guaranteed to the child under the Constitution of the United States, the Constitution of Tennessee, any other law, or any rule of court unless the Court has fully advised the child of the child’s rights and has determined that the child knowingly and voluntarily waives those rights. The court shall not accept a waiver or deem a waiver to be knowing and voluntary unless or until the child has consulted with a knowledgeable adult who has no interest adverse to the child.
(c) Knowing and Voluntary Waivers.
(1) Criteria for Knowing and Voluntary Waivers. The court shall only accept a waiver if the child is able to make an intelligent and understanding decision based on the child’s mental condition, age, education, experience, the nature or complexity of the case, or any other relevant factor.
(2) Procedure for Making and Confirming Waivers. Any and all waivers of rights at a hearing shall be made orally and in open court, and shall be confirmed in writing bythe child andthe judge. When the child is not represented by an attorney, the court shall advise the child in open court of the right to an appointed attorney. The court shall not proceed with the hearing unless the child has waived the right to an attorney in accordance with the provisions of this rule.
Advisory Commission Comments.
Children alleged to be delinquent and children alleged to be unruly and in jeopardy of being removed from the home have the right to an attorney pursuant to T.C.A. § 37-1-126. In addition, this statute also mandates appointment of an attorney for a child who is “not represented by the child’s parent, guardian, guardian ad litem, or custodian” and who is alleged to be delinquent, or unruly and in jeopardy of being removed from the home. The statute contemplates that a child will not appear in court without adult guidance and representation. Parents are not automatically disqualified from fulfilling this function. However, as the Supreme Court has observed in a different context, “As a general rule, counsel should be provided, and . . . any doubt should be resolved in favor of appointment of counsel.” State ex rel. Gillard v. Cook, 528 S.W.2d 545, 548 (Tenn. 1975).
A “knowledgeable adult who has no interest adverse to the child,” referenced in subdivision (b)(3), is a person who can provide advice to the child and who will have no interests that interfere with providing dispassionate and mature advice to the child. This person should have no interests that prevent the person from keeping the child’s best interests and the child’s desires in the forefront. A person who now or in the past brought charges against the child generally does not qualify. Where possible, this person should have a pre-existing relationship with the child. While parents generally satisfy this requirement, the court should determine the level of trust between the child and the child’s parents before allowing the parent to satisfy this requirement. When a child is in the custody of the Department, its employees do not satisfy the requirement of this rule. Depending on the circumstances, a foster parent may qualify.
It is the responsibility of the attorney representing the child charged with a delinquent or unruly offense to fully advise the child of his or her rights. If a child chooses to waive his or her rights, the child can only do so once the court has determined that the child has been advised of each and every right and knowingly and voluntarily is waiving each of the rights.
All waivers of rights shall be made orally and in open court and confirmed in a writing signed by both the judge and the child waiving the rights. The confirming document can be a preprinted form, but must specify the rights that are being waived and must acknowledge that the individual is choosing to waive those rights.
Subdivision (c) provides that the court shall only accept a waiver by a child of his or her rights only if the child is able to make an intelligent and understanding decisionbased on certain factors. The Tennessee Supreme Court has applied the totality-of-the-circumstances test in analyzing juvenile waivers. See State v. Callahan, 979 S.W.2d 577 (Tenn. 1998).
The court should address the child, not the parents or other adults who are present in the courtroom, and should always take into account the child’s age, mental condition, education, experience and the nature and complexity of the case when deciding how to question the child about the child’s understanding of the rights and whether the child waives those rights. The court must address the child in language appropriate to that particular child.