ENROLLED
H. B. 106
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Passed July 14, 1996; in effect from passage.]
AN ACT to amend and reenact section two, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the
admissibility of extrajudicial statements made by juveniles
to law-enforcement officers or while in custody.
Be it enacted by the Legislature of West Virginia:
That section two, article five, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-2. Juvenile jurisdiction of circuit courts, magistrate
courts and municipal courts; constitutional
guarantees; hearings; evidence and transcripts.
(a) The circuit court shall have original jurisdiction of
proceedings brought under this article.
(b) If during a criminal proceeding in any court it is
ascertained or appears that the defendant is under the age of nineteen years and was under the age of eighteen years at the
time of the alleged offense, the matter shall be immediately
certified to the juvenile jurisdiction of the circuit court. The
circuit court shall assume jurisdiction of the case in the same
manner as cases which are originally instituted in the circuit
court by petition.
(c) Notwithstanding any other provision of this article,
magistrate courts shall have concurrent juvenile jurisdiction
with the circuit court for a violation of a traffic law of West
Virginia or for any violation of chapter twenty of this code.
Juveniles shall be liable for punishment for violations of such
laws in the same manner as adults except that magistrate courts
shall have no jurisdiction to impose a sentence of incarceration
for the violation of such laws.
(d) Notwithstanding any other provision of this article,
municipal courts shall have concurrent juvenile jurisdiction with
the circuit court for a violation of any municipal ordinance
regulating traffic or for any municipal curfew ordinance which is
enforceable. Municipal courts may impose the same punishment for
such violations as a circuit court exercising its juvenile
jurisdiction could properly impose, except that municipal courts
shall have no jurisdiction to impose a sentence of incarceration
for the violation of such laws.
(e) A juvenile may be brought before the circuit court for
proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be
adjudged neglected or delinquent;
(2) By certification or transfer to the juvenile
jurisdiction of the circuit court from the criminal jurisdiction
of the circuit court, from any foreign court, or from any
magistrate court or municipal court in West Virginia; or
(3) By a warrant, capias or attachment which charges a
juvenile with an act of delinquency, is issued by a judge,
referee or magistrate, and is returnable to the circuit court.
(f) If a juvenile commits an act which would be a crime if
committed by an adult, and the juvenile is adjudged a delinquent
for such act, the jurisdiction of the court which adjudged the
juvenile a delinquent shall continue until the juvenile becomes
twenty-one years of age. The court shall have the same power
over the person that it had before he or she became an adult, and
shall have the further power to sentence the person to a term of
incarceration which cannot exceed six months. This authority
shall not preclude the court from exercising criminal
jurisdiction over the person if he or she violates the law after
becoming an adult or if the proceedings have been transferred to
the court's criminal jurisdiction pursuant to section ten of this
article.
(g) A juvenile shall be entitled to be admitted to bail or
recognizance in the same manner as an adult and shall have the
protection guaranteed by Article III of the West Virginia Constitution.
(h) A juvenile shall have the right to be effectively
represented by counsel at all stages of proceedings under the
provisions of this article. If the juvenile or the juvenile's
parents or custodian executes an affidavit showing that the
juvenile cannot afford an attorney, the court shall appoint an
attorney, who will be paid in accordance with article twenty-one,
chapter twenty-nine of this code.
(i) In all proceedings under this article, the juvenile
shall have a meaningful opportunity to be heard. This includes
the opportunity to testify and to present and cross-examine
witnesses. The general public shall be excluded from all such
proceedings except persons whose presence is requested by the
parties and other persons whom the circuit court determines have
a legitimate interest in the proceedings.
(j) At all adjudicatory hearings held under this article,
all procedural rights afforded to adults in criminal proceedings
shall be applicable unless specifically provided otherwise in
this chapter.
(k) At all adjudicatory hearings held under this article,
the rules of evidence applicable in criminal cases shall apply,
including the rule against written reports based upon hearsay.
(l) Extrajudicial statements, other than res gestae, which
were made by a juvenile under fourteen years of age to law-
enforcement officials or while in custody shall not be admissible unless such statements were made in the presence of the
juvenile's counsel. Extrajudicial statements, other than res
gestae, which were made by a juvenile who is under sixteen years
of age but above the age of thirteen to law-enforcement officers
or while in custody, shall not be admissible unless made in the
presence of the juvenile's counsel or made in the presence of,
and with the consent of, the juvenile's parent or custodian who
has been fully informed regarding the juvenile's right to a
prompt detention hearing, the juvenile's right to counsel,
including appointed counsel if the juvenile cannot afford
counsel, and the juvenile's privilege against self-incrimination.
(m) A transcript or recording shall be made of all transfer,
adjudicatory and dispositional hearings. At the conclusion of
any hearing, the circuit court shall make findings of fact and
conclusions of law, both of which shall appear on the record.
The court reporter shall furnish a transcript of the proceedings
at no charge to any indigent juvenile who seeks review of any
proceeding under this article if an affidavit is filed stating
that neither the juvenile nor the juvenile's parents or custodian
have the ability to pay for the transcript.