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135

Fourth factor—the juvenile's present intellectual development and psychological maturity

A qualified psychologist or psychiatrist should be brought in early to evaluate the juvenile and to testify at the transfer hearing concerning the juvenile's intellectual development and psychological maturity.

One court noted that "the statutory scheme would seem to reflect a determination that more mature and developed juveniles are more likely to be beyond redemption," and therefore, concluded that "it is in keeping with the statutory premise to view immaturity and lack of development as factors weighing against transfer to adult status and maturity, and development as factors weighing in favor of transfer." United States v. J.D., 525 F. Supp. 101, 104 (S.D.N.Y. 1981).

Obviously, proof that a juvenile is abnormally low in intelligence or immature for his or her age would not be favorable for transfer. One may, nonetheless, have developed a street-wise intellect or precociousness which could weigh in favor of transfer. See Doe, 49 F. 3d at 868. In one case, the juvenile contended that he had the intelligence level of a six to seven year-old. United States v. G.T.W., 992 F. 2d 198, 200 (8th Cir. 1993). The court, nonetheless, ruled in favor of transfer since there was no evidence in the record indicating the juvenile lacked the ability to understand the consequences of his actions, and proof showed the crime was committed in a calculated fashion. Id. A juvenile capable of functioning intellectuably and emotionally as an adult in some ways, but having limited intellectual and psychological potential for rehabilitation, may point toward transfer. M.H., 901 F. Supp. 901.

Defense attorneys might object to a psychiatric or psychological evaluation because it would compel the defendant to give potentially self-incriminatory testimony in violation of the Fifth Amendment. See United States v. J.D., 517 F. Supp. 69, 70 (S.D.N.Y. 1981). In J.D., the court found that the Fifth Amendment applied to transfer proceedings. Id., citing In re Gault, 387 U.S. at 49-50, 87 S. Ct. at 1455-56. It ruled that because statements made to the psychiatrist or psychologist could be used to render the juvenile defendant liable to criminal prosecution, the statements should be considered incriminating. Id. at 73. However, the juvenile defendant can be compelled to give statements in relation to psychiatric/psychological evaluations to assess psychological maturity and intellectual development, and to ascertain any mental defects. Id. What would be prohibited is the use of a juvenile defendant's statements as proof of their content, rather than as verbal acts of diagnostic significance in the psychiatrist/psychologist's evaluation. Id. at 74. The court in J.D. advised the government to keep all records pertaining to the psychiatric interviews separate from its other investigatory files, and prevent the use of any of the information obtained during those interviews in the investigation or prosecution of any matters concerning the juvenile defendant. Id.