Can my Child Be Tried as an Adult?

Brandon WaltripCriminal Defense

When a child is charged with a serious crime a parent’s first thought is usually whether or not their child can, or will be treated as an adult. Having represented juveniles in crimes ranging from simple possession of alcohol to robbery, malicious wounding, and even rape, it is a serious question to consider if your own child has been charged with a serious criminal offense. In this blog I will lay out when a child can be tried as an adult and what procedures must take place in order for that to happen; including, what the Commonwealth must demonstrate to a Judge to transfer the juvenile case to the Circuit Court to try the child as an adult.

1. When a Child Can be Tried as an Adult:

Virginia Code 16.1-269.1 lays out the parameters for when a child can be tried as an adult. They include: (a) the child is over 14 years of age; (b) is charged with an offense that would be a felony if the child were an adult; and (c) the Commonwealth has made a motion for a transfer hearing to be held in the Juvenile Court and based on the evidence presented at that hearing, the Judge Orders the transfer. The first two parameters are easy to identify as they are objective questions as to the age of the child and the offense charged. The last parameter requires an analysis into specific factors the Juvenile Court must consider before transferring a juvenile’s matter to the Circuit Court.

2. Motion of the Commonwealth:

As stated above, a child cannot be tried as an adult without the Commonwealth’s Attorney making a Motion to do so. While the Motion itself is not a complicated matter, this is still an important procedural step in any case where a child could be tried as an adult. It requires the child’s attorney to take into consideration these options and be in a position to negotiate with a prosecutor to determine if they are considering trying the child as an adult, and if so, what reasons would persuade them not to seek this type of filing. Assuming that the Commonwealth has filed the Motion, below is a short examination into what the Commonwealth must prove at a transfer hearing to have the juvenile treated as an adult.

3. Transfer Hearing

The hearing to determine whether a child can be tried as an adult is known as a transfer hearing. Similar to a pre-liminary hearing for an adult it requires a showing by the Commonwealth that probable cause exists to believe the juvenile committed the act. Further, that the child is competent to stand trial. Finally, the court must find by a preponderance of the evidence that the juvenile is not a proper person to remain within the jurisdiction of the Juvenile court. In making this determination, the legislature has outlined 10 factors for the court to consider. These include, but are not limited to the juvenile’s age, the seriousness of the alleged offense, prior offenses, whether the juvenile can be retained in the juvenile justice system long enough for effective treatment, the availability of services for the juvenile, the extent or degree of  intellectual or mental disability on the part of the child; the child’s academic or educational record, and their mental and intellectual maturity. These are not all the factors for the court to consider, but important ones. Presenting evidence in each category can persuade a Judge to retain a case in the Juvenile Courts rather than transfer the matter to the Circuit Court. To ensure your child is not wrongly treated as an adult, you want to be sure to thoroughly examine each of these factors, present evidence as to each factor, and always consult an attorney skilled in this area of law.

4. The Appeal, the Blended Sentence & Other Options

Inevitably there will be some juveniles who are tried as adults. However, an attorney should always appeal this decision and can have the Circuit Court make a determination as to whether the case is appropriate for the Circuit Court. If the Circuit Court holds a transfer hearing and determines that the case is not appropriate, it will be remanded back to the Juvenile court. A juvenile should always appeal the transfer decision and seek a second hearing.

Further, a finding that the case is appropriate to be tried as an adult, does not mean the juvenile must be punished as an adult. The Circuit Court has the authority to remand the matter back to the Juvenile Court, or enter a blended sentence. Under a blended sentence the juvenile is  found guilty as an adult, receives a conviction on their adult record, but their probation is carried out through Juvenile Court Services, or even serves detention time in a juvenile facility. This is an important tool for any attorney or parent. Few Judges wish to see children punished as adults; however, this requires an attorney who understands both the juvenile and Circuit Court system and options open to juveniles.

In this blog I examined just a few things to consider when there is a possibility of a juvenile being tried as an adult. They included the basic requirements for when a child can be tried as an adult, the requirements of a Motion to be made by the Commonwealth, the factors the court will consider before transferring a juvenile matter to the circuit court, and the appeal process. Be sure to consult an attorney licensed in your jurisdiction or contact Brandon Waltrip, Esq., if you have questions about a juvenile criminal charge.