H. B. 4052


(By Delegates Manuel, Doyle,
Trump, Faircloth and Amores)
[Introduced January 21, 1998; referred to the
Committee on the Judiciary.]



A BILL 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 allowing victims or their representatives to attend court proceedings involving juveniles accused of committing a felony in which the victim has an interest, at the discretion of the court.

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 these 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 these 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 these 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 these 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 the 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: Provided, That in cases in which a juvenile is accused of committing a felony, an alleged victim or the alleged victim's representative may attend any related juvenile proceedings at the discretion of the presiding judicial officer.
(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 the 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.




NOTE: The purpose of this bill is to allow victims or their representatives to attend court proceedings involving juveniles accused of committing a felony in which the victim has an interest, at the discretion of the court.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.