The Oklahoma Bar Journal March 2023

participate in their own psycho logical evaluation. Counsel should object to the government’s request as it is unnecessary and duplica tive and often leads to a “battle of the experts” instead of the needs of the juvenile and whether they are amenable to treatment. Statements made by the juvenile during these evaluations are not admissible in subsequent criminal prosecutions. 36 The district court must consider and make findings regarding each factor. The dis trict court can weigh each factor as it so chooses and may balance them as it finds appropriate. 37 The court does not have to state if one factor favors or disfavors transfer. 38 Often, the nature of the offense will carry the most weight and be the deciding factor. The district court’s decision of whether to transfer or not transfer the juvenile to adult criminal pros ecution is immediately appealable through an interlocutory appeal. 39 The 10th Circuit reviews transfer

maturity, 5) the nature of the past treatment efforts and the juvenile’s response to such efforts and 6) the availability of programs designed to treat the juvenile’s behavioral problems. 33 The question the dis trict court must decide is whether “transfer would be in the interest of justice.” 34 “It is incumbent upon the court to deny a motion to transfer where, all things considered, a juvenile has a realistic chance of rehabilitative potential in avail able treatment facilities during the period of minority.” 35 The objection to the motion to transfer should address the six factors the court is required to consider. Counsel should request records that would be beneficial for the court to see the whole picture of the juvenile’s circum stances, such as DHS, school and medical records. Additionally, it is often helpful to have a psycho logical evaluation performed. The government often requests that the court order the juvenile to

adult prosecutions of juveniles by some transfer method. 28 In some instances, transfer is mandatory. If the juvenile is 16 or older and is charged with a felony offense involving the use or potential use of physical force or an enumerated drug offense and the juvenile has a previous adjudication from the same list of offenses, the juvenile shall be transferred to district court for criminal prosecution. 29 When the government files a motion to transfer, the juvenile’s speedy trial rights are tolled. 30 Unless, after advice from counsel, the juvenile elects to stipulate to the transfer, counsel should file an objection to the government’s motion to trans fer. A juvenile may choose to waive their rights under the act and can proceed with adult prosecution. This may be an effective strategy for a juvenile who will likely be transferred for adult prosecution, where the government offers a favorable plea agreement. The government bears the burden of proof by a preponder ance of the evidence that transfer to adult status is warranted. 31 Juvenile adjudication is preferred under the act. “Juvenile adjudication is presumed appropriate unless the government establishes that pros ecution as an adult is warranted in the interest of justice.” 32 The district court must consider the six factors set forth in §5032 and make find ings on the record. When deciding whether to transfer a juvenile for adult prosecution, 18 U.S.C. §5032 sets forth the following factors the court must consider: 1) the age and social background of the juvenile, 2) the nature of the alleged offense, 3) the extent and nature of the juvenile’s prior delinquency record, 4) the juvenile’s present intellectual development and psychological IS TRANSFER IN THE INTEREST OF JUSTICE?

MARCH 2023 | 15

THE OKLAHOMA BAR JOURNAL