H. B. 4052
(By Delegates Manuel, Doyle, Trump, Faircloth and Amores)
(Originating in the Committee on the Judiciary)
[February 5, 1998]
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
and their representatives to attend court proceedings
involving juveniles accused of committing certain acts, at the
discretion of the presiding judicial officer.
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
(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 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 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
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
(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
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 what would be a felony if the
juvenile were an adult, an alleged victim or the alleged victim's
representative may attend any related juvenile proceedings, at the
discretion of the presiding judicial officer. In any case in which
the alleged victim is a juvenile, the alleged victim may be accompanied by a parent or representative, 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
(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
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 what would be a felony if the juvenile were
and adult, at the discretion of the judicial officer, and to allow
juvenile victims to have someone accompany them at a juvenile
proceeding, also at the discretion of the judicial officer.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would