Special Series No. 19October 2004

Confidentiality in Juvenile

Delinquency Proceedings

Janet Mason

Special Series No. 19October 2004

Confidentiality in JuvenileDelinquency Proceedings

Janet Mason

School of Government, UNC Chapel Hill

ESTABLISHED IN 1931, the Institute of Government provides training, advisory, and research services to public officials and othersinterested in the operation of state and local government in North Carolina. The Institute and the university’s Master of PublicAdministration Program are the core activities of the School of Government at The University of North Carolina at Chapel Hill.

Each year approximately 14,000 public officials and others attend one or more of the more than 200 classes, seminars, and con-ferences offered by the Institute. Faculty members annually publish up to fifty books, bulletins, and other reference works related tostate and local government. Each day that the General Assembly is in session, the Institute’s Daily Bulletin, available in print andelectronic format, reports on the day’s activities for members of the legislature and others who need to follow the course of legisla-tion. An extensive Web site (www.sog.unc.edu) provides access to publications and faculty research, course listings, program andservice information, and links to other useful sites related to government.

Operating support for the School of Government’s programs and activities comes from many sources, including state appropria-tions, local government membership dues, private contributions, publication sales, course fees, and service contracts. For moreinformation about the School, the Institute, and the MPA program, visit the Web site or call (919) 966-5381.

Michael R. Smith, DEAN

Patricia A. Langelier, ASSOCIATE DEAN FOR OPERATIONS

Ann Cary Simpson, ASSOCIATE DEAN FOR DEVELOPMENT AND COMMUNICATIONS

Thomas H. Thornburg, SENIOR ASSOCIATE DEAN FOR PROGRAMS

Ted D. Zoller, ASSOCIATE DEAN FOR BUSINESS AND FINANCE

© 2004School of Government

Printed on recycled paperThe University of North Carolina at Chapel Hill

This publication is printed on permanent, acid-free paper in compliance with the North Carolina General Statutes.Printed in the United States of America

ISBN 1-56011-439-8

FACULTY

Gregory S. AllisonStephen Allred (on leave)David N. AmmonsA. Fleming Bell, IIFrayda S. BluesteinMark F. BottsPhillip BoyleJoan G. BrannonMary Maureen BrownAnita R. Brown-GrahamWilliam A. CampbellAnne M. DellingerShea Riggsbee DenningJames C. Drennan

Richard D. DuckerRobert L. FarbJoseph S. FerrellMilton S. Heath Jr.Cheryl Daniels HowellJoseph E. HuntWillow JacobsonRobert P. JoyceDiane JuffrasDavid M. LawrenceJanet MasonLaurie L. MesibovJill D. MooreJonathan Morgan

David W. OwensWilliam C. RivenbarkJohn RubinJohn L. SaxonJessica SmithCarl StenbergJohn B. StephensVaughn UpshawA. John VogtAimee WallMark WeidemaierRichard WhisnantGordon P. Whitaker

Contents

The Juvenile Court System 6

Public Access to Juvenile Court Proceedings 6

Confidentiality of Juvenile Records 6Juvenile Court Records 7Recordings of Juvenile Hearings 8Law-enforcement Records 8Fingerprints and Photographs 8

Nontestimonial Identification Orders 8Required Photographs and Fingerprints 8Case Is Transferred to Superior Court 9

Department of Juvenile Justice and DelinquencyPrevention Records 9

Social Services Records 9

Confidentiality of Information about Juveniles 9Agencies Authorized to Share Information 9Information Provided to Schools 11Child Abuse, Neglect, and Dependency 11

Use of the Juvenile’s Record in Court 11Impeachment of a Witness in a Juvenile

Proceeding 11Impeachment of a Witness in Other Proceedings 11Non-impeachment Use in Criminal Cases 12Other Uses 12

Publicity about Juveniles 12

Community Accountability 13

Conclusion 13

5

Confidentiality in Juvenile Delinquency Proceedings

Juveniles who violate criminal laws are not charged with crimes;they are alleged to be “delinquent.” Juvenile suspects are notarrested; they are “taken into custody.” They are not served withwarrants; they and their parents are served with “juvenile peti-tions and summonses.” If a court finds that a juvenile violated acriminal law, the result is an “adjudication of delinquency,” nota criminal conviction. A juvenile who is adjudicated delinquentis not sentenced. Instead, from a broad range of “dispositionalalternatives,” the judge orders a disposition designed to meet thejuvenile’s needs and protect the public.

It is not uncommon for the media, the public, and eventhose who work in the juvenile justice system to use terminologyfrom the adult criminal system to describe proceedings involv-ing juvenile offenders. Some consider this usage harmless orthink the more familiar criminal terms will impress on juvenilesthe seriousness of the proceedings.1 Others stress the importanceof the special vocabulary of juvenile law, because it reflects thefundamental differences between the purposes, procedures, andoutcomes of juvenile proceedings and those of the criminal jus-tice system.2

One such difference is the extent to which informationabout juveniles, records of juvenile proceedings, and, some-times, the proceedings themselves are shielded from public view.For many years, keeping juvenile court hearings and recordsconfidential was considered a natural and necessary componentof a juvenile justice system that focused on rehabilitation, notpunishment, and did not want to stigmatize young people forwhat often was simply indiscreet youthful behavior. Juvenilescould go through court proceedings in almost complete secrecy.

Recent decades have seen a move, at both the national andstate levels, toward more openness in juvenile court proceedings.3

Published proceedings of a 1996 national conference on juvenilejustice records noted that “more and more State and local juris-dictions are prosecuting juveniles as adults, and opening accessto juvenile records and juvenile criminal proceedings that fordecades have been protected by strict confidentiality laws com-patible with the rehabilitative mission of juvenile justice.”4

Reactions to these relatively rapid changes, the report said,

ranged from warnings of “a fundamental shift that threatens toundermine the foundations of the juvenile justice system” to theview that these changes are necessary “to stem the tide of juvenilecrime.”5

North Carolina law reflects this trend toward more opennessin juvenile proceedings. It also reflects a widespread ambivalenceabout just how open matters involving juvenile offenders shouldbe.6 The Governor’s Commission on Juvenile Crime and Justice,whose work led to the complete rewrite of the North CarolinaJuvenile Code7 in 1998, addressed several issues relating to theopenness of juvenile hearings, fingerprinting and photographingjuveniles, and access to juvenile records.8 Neither that commis-sion nor any other, though, has undertaken a comprehensiveassessment of issues relating to confidentiality in matters relatingto juveniles in this state.9 In most instances, it is fairly easy toidentify the laws and rules that apply to particular questions aboutconfidentiality and the juvenile courts. It is difficult, though, todiscern a consistent rationale underlying those policies.

This article will explain North Carolina law relating to (1) access to juvenile court hearings involving delinquency and(2) access to and use of information about young people whoare involved in juvenile delinquency proceedings. The followingare examples of the kinds of questions it should help peopleanswer.

• Can a group of Girl Scouts who are working toward a“Law and Order” badge observe juvenile court hearings?

• Can a school principal look at the juvenile court recordsof a student who attends the principal’s school?

• If a juvenile, after becoming an adult, is charged with acrime, can his or her juvenile record be used in the crimi-nal trial?

• Can a newspaper publish the name and picture of a juve-nile who is alleged to be delinquent for several drive-byshootings?

6 Special Series No. 19 | Janet Mason

The Juvenile Court System

When separate juvenile court procedures for children were first established in the late nineteenth and early twentieth cen-turies, they were informal, nonadversarial proceedings thatemphasized helping, protecting, and rehabilitating children,not punishing them.10 In the second half of the twentieth century, the procedures in juvenile court were becoming morelike those in adult criminal court. The U.S. Supreme Courtand other courts have held, as a matter of constitutional law,that juveniles who are alleged to be delinquent are entitled tomost of the same legal safeguards available to adult criminaldefendants.11 At the same time, appellate courts continue toaffirm that the philosophy underlying juvenile court justifiestreating juveniles differently from adults, even when thatresults in subjecting a juvenile to consequences that are harsherthan those that would apply to an adult who committed thesame offense.12

The North Carolina General Assembly’s intent to maintainthose distinctions is clear. The purposes stated in the NorthCarolina Juvenile Code include the following:

1. To protect the public from acts of delinquency. 2. To deter delinquency and crime by providing

dispositions that emphasize both the juvenile’s accountability and appropriate rehabilitative services.

3. To provide an effective system to screen and evaluate complaints about delinquent conduct and, where publicsafety can be ensured, to divert juveniles to community-based resources.

4. To provide uniform procedures that are fair andequitable.13

When those procedures result in an adjudication of delin-quency, the court is required to order a disposition designed toboth meet the juvenile’s needs and achieve the state’s objectives.The overarching goal is to develop for each delinquent juvenilea disposition that promotes public safety and provides appropri-ate consequences, treatment, training, and rehabilitation to helpthe juvenile become “a nonoffending, responsible, and produc-tive member of the community.”14

North Carolina has long been in a small minority of statesthat limit the application of special juvenile procedures toyoung people who commit offenses before they reach the age of sixteen.15 In this state sixteen- and seventeen-year-old youth,although legally minors and subject to parental control, areprosecuted and sentenced as adults when they commit criminaloffenses.16 In addition, cases of thirteen-, fourteen-, and fifteen-year-old juveniles who are alleged to be delinquent for commit-ting felonies may be transferred to superior court for trial as if they were adults.17 When a juvenile is tried as an adult incriminal court, the trial and other court proceedings and thecourt records are open to the public. When a young person’scase is handled in juvenile court, public access to the court proceedings may be restricted, and access to information aboutthe juvenile’s case is always restricted.

Public Access to Juvenile Court Proceedings

Juvenile court proceedings consist of two primary stages: the adju-dicatory, or fact-finding, hearing and the dispositional hearing. Atthe adjudicatory hearing, a district court judge hears evidence todetermine whether the juvenile in fact committed the allegedoffense. If the judge finds beyond a reasonable doubt that thejuvenile committed the offense, a dispositional hearing follows. Atthis hearing the judge first determines which dispositional alterna-tives are available, based on the seriousness of the offense and thejuvenile’s record of prior adjudications.18 Then the court deter-mines a dispositional plan that best serves the purposes outlinedabove. In keeping with the philosophy of juvenile court, the rangeof options and the bases on which the judge chooses among themare markedly different from those in criminal court. The disposi-tional hearing may involve substantial evidence regarding thechild’s emotional, psychological, educational, medical, and otherneeds; information about the family’s background, strengths, andweaknesses; and an assessment of the juvenile’s risk of reoffending.

All court hearings in delinquency cases are presumed to beopen to the public. If the juvenile requests that a hearing in his orher case remain open, the court may not close the hearing. If thejuvenile does not request an open hearing, the court may close anentire hearing or part of a hearing, but only after finding thatthere is good cause to do so based on the circumstances of theparticular case. In evaluating whether there is good cause to closea hearing, the court must consider at least the following:

1. the nature of the allegations against the juvenile; 2. the juvenile’s age and maturity; 3. the benefit to the juvenile of confidentiality; 4. the benefit to the public of an open hearing; and 5. the extent to which an open hearing will compromise the

confidentiality of the juvenile’s file.19

Thus, while a juvenile has a right to demand an open hearing,a juvenile who wants a hearing to be closed must convince thecourt that, based on these factors, good cause exists to close it. Ifthe court does close a hearing or part of a hearing, the court stillmay allow any victim, member of a victim’s family, law-enforce-ment officer, witness, or other person directly involved in thehearing to be in the courtroom.20

Q: Can a group of Girl Scouts who are working toward a“Law and Order” badge observe juvenile court hearings?

A: Yes, except when the court has ordered that a specific hearingbe closed based on a finding of good cause.

Confidentiality of Juvenile Records

Courts, law-enforcement agencies, and other public agenciesmaintain several kinds of records regarding juveniles who becomeinvolved in the juvenile justice system. The Juvenile Coderestricts access to those records.

Confidentiality in Juvenile Delinquency Proceedings 7

Juvenile Court Records

The official court record maintained by the clerk of superiorcourt includes all papers filed in a juvenile proceeding, such asthe summonses, petitions, court orders, motions, and predisposi-tion reports. If the court has directed the clerk to seal parts of therecord, the clerk may not allow anyone to see those parts withouta court order specifically authorizing access.21 Otherwise, the fol-lowing people may see and obtain copies of the written parts of ajuvenile’s record without a court order:

1. the juvenile and the juvenile’s attorney; 2. the juvenile’s parent, guardian, or custodian, or an author-

ized representative of that individual;3. juvenile court counselors; and4. the prosecutor.22

Others who want to see the record or obtain copies of any ofits written contents may do so only with a court order.

Requests for orders allowing someone to access or obtaincopies of a juvenile’s record ordinarily would be made to a dis-trict court judge in the district where the record is located.23

These requests might come from court officials in other states,federal probation officials, parties in civil actions, school officials,media representatives, and others. The provision allowing accessto juvenile records only by order of the court must be read toauthorize judges to issue those orders. The Juvenile Code, how-ever, does not set out any procedure for seeking a court order foraccess to a juvenile’s record. It also is silent with respect to crite-ria, standards, or limitations that apply when a court is respond-ing to such a request. The court of appeals has described thestatute as “at most, [providing] a mechanism for individuals toobtain juvenile records upon a showing of need.”24 Defining andassessing need, as well as determining the scope of any disclosure,apparently are left to the discretion of the district court judge.

In the absence of a statutory procedure for requesting anorder allowing access to a juvenile record, several approaches are possible.25

• Least likely to be appropriate is an ex parte request directlyto a district court judge. Even that form of request, espe-cially if it is in writing, might be appropriate if the needfor the information is obvious and no one can be identi-fied who might be adversely affected by the disclosure. Forexample, a chief district court judge might authorize auniversity researcher to examine certain juvenile records,conditioned on written assurances that he or she wouldnot copy or disclose any identifying information.

• If the request involves a juvenile matter in which the courtcontinues to exercise jurisdiction, the person seekinginformation might file a motion in that proceeding, givenotice to the juvenile and other parties, and request a hear-ing at which he or she could present evidence of a “need”for the disclosure. Generally, however, the person seekingthe order is not a party to the juvenile proceeding andwould not have standing to make a motion. The personcould file and serve on the parties a motion that seeks both

(1) permission to intervene for the limited purpose ofseeking access to the juvenile record26 and (2) an orderauthorizing access to the record. That approach often isnot practical, and it is not feasible when someone is tryingto find out whether a person even has a juvenile record.

• A chief district court judge might either develop local rulesor issue an administrative order setting out a procedure forrequesting access to a juvenile’s file.27 Either approachshould take into account the need, at least in most cases,to ensure that the juvenile is given notice and a chance tobe heard on the question of disclosure.

• A person seeking access to a juvenile record might file anindependent action or special proceeding for that purpose.A district attorney took that approach when a statuteauthorized the court to “compel disclosure” of certainprivileged information but set out no procedure for askingthe court to do that when no criminal or civil action hadbeen initiated.28 The trial court dismissed the proceedingfor lack of jurisdiction. The court of appeals reversed, stat-ing that while the legislature’s intent regarding the trialcourt’s authority was clear, “[u]nfortunately, the legislature[had] failed to specify the procedural steps for implemen-tation.”29 In such instances, the court said, the trial courtmust exercise its inherent or implied powers to effectuatethe legislature’s intent. The court of appeals found the dis-trict attorney’s approach to be a “practicable and work-able” means of bringing the matter before the court.30

In most cases, before resorting to any of these procedures, theperson seeking access to a juvenile record should try to obtainthe consent of the juvenile’s attorney or the former juvenile, or tohave the attorney or former juvenile himself or herself make therequest. An attorney representing the juvenile in a later civil orcriminal case, for example, should not have to seek a court orderto obtain records that his or her client has a right to obtain with-out a court order.

In some circumstances, a request or motion for access to juve-nile records should be directed to someone other than a districtcourt judge. In a criminal case, for example, a defendant has adue process right to any information that is material to his or herguilt, innocence, or punishment.31 A defendant in a superiorcourt trial seeking access to another individual’s confidential juve-nile record makes a motion to the superior court judge presidingin the criminal case. If the defendant can show that the materialsought might be material and favorable to his or her defense, thesuperior court judge will examine the record in camera to deter-mine whether some or all of its contents are relevant to the defen-dant’s defense and order the release of those portions.32

Any request, consent form, or court order relating to access toor copies of a juvenile’s record needs to be specific and clear withregard to the intended meaning of “record.” North Carolina’sjuvenile court record-keeping system gives a juvenile one case fileand file number for life.33 Records in a juvenile’s file may go backfor years and could include numerous delinquency petitions,some of which were dismissed; lengthy dispositional and revieworders; court summaries with detailed family, school, medical,and other information; and psychological evaluations. A juvenile

8 Special Series No. 19 | Janet Mason

record also might include similar documents and informationfrom proceedings in which the juvenile was alleged to be abused,neglected, or dependent. Confusion and delay can result if it isnot clear whether a request, consent, or court order refers to

• everything in the juvenile’s court file; • just the fact that the juvenile, for example, was adjudi-

cated delinquent on February 12, 2005, for breaking andentering on December 2, 2004;

• a list of all adjudications of delinquency and the offensesinvolved;

• the most recent dispositional order, including conditionsof the juvenile’s probation; or

• something else.

Q: Can a school principal look at the juvenile court recordsof a student who attends the principal’s school?

A: No, not without a court order. It is not clear, however, whatprocedure a principal should follow or what he or she wouldhave to prove in order to obtain a court order.

Recordings of Juvenile Hearings

Some hearings in juvenile court must be recorded, and in prac-tice most hearings are recorded.34 The electronic or mechanicalrecording of a juvenile hearing is considered part of the officialjuvenile court record. It can be turned into a written transcript,however, only when a party has given notice of appeal from ajuvenile court order.35 If no appeal is taken, the court may orderthe clerk to destroy the recording. No one, not even the juvenile,may obtain an electronic or mechanical copy of the recordingwithout a court order. As with written parts of a juvenile’s file,the Juvenile Code includes no procedures or criteria relating torequests for copies of juvenile hearing recordings . Sometimesthe court will order the recording of a hearing to be copied elec-tronically for administrative reasons—for example, when a juve-nile’s case is transferred to another district for disposition andthe adjudicatory hearing is recorded on a tape that includeshearings in other juvenile cases.

Law-enforcement Records

Law-enforcement records and files relating to juveniles are notpublic records. Those who may inspect and obtain copies of therecords, without a court order, are

• the prosecutor or district attorney; • juvenile court counselors; • the juvenile and the juvenile’s attorney; • the juvenile’s parent, guardian, and custodian, or the

authorized representative of one of those people; and • law-enforcement officers sworn in the state.36

Otherwise, these records may be accessed and copied onlypursuant to a court order or the information-sharing rulesdescribed below. Law-enforcement agencies are required to keep

juvenile records separate from adult records and files unless ajuvenile’s case has been transferred to superior court for trial asin the case of an adult.

Although the statute refers to “all law enforcement recordsand files concerning a juvenile,” it probably does not encompassall law-enforcement records that mention juveniles. A 1988attorney general’s opinion, for example, took the position thatthe Juvenile Code confidentiality provisions did not prohibit theidentification of a juvenile in a law-enforcement officer’s colli-sion report, which had to be made available for public inspec-tion.37 The confidentiality provision, the opinion stated,pertains specifically to investigations and records arising underthe Juvenile Code.38

Fingerprints and Photographs

In relation to delinquency, a juvenile may be fingerprinted andphotographed only in prescribed circumstances, and the finger-prints and photograph generally must be treated as confidential.The Juvenile Code is clear in some respects, but not others,regarding the proper custody, use, and retention or destructionof a juvenile’s fingerprints or photograph.

1. Nontestimonial Identification Orders A juvenile’s photograph or fingerprints may be taken pur-

suant to a nontestimonial identification order to assist in deter-mining whether the juvenile committed an offense that wouldbe a felony if committed by an adult.39 The order may be issuedonly at the request of the prosecutor or the juvenile and onlyafter the court makes certain findings based on an affidavit thatis part of the request.40

The law-enforcement agency having custody of a photograph orfingerprints taken pursuant to a nontestimonial identification ordermust destroy them if a petition is not filed against the juvenile, if thejuvenile is not adjudicated delinquent, or if the juvenile is younger thanthirteen and is adjudicated delinquent only for an offense that is lessthan a felony.41 If the juvenile is adjudicated delinquent for a felonyoffense, the law-enforcement agency having possession of the recordsshould retain them until further order of the court.42

2. Required Photographs and FingerprintsLaw-enforcement officers are required to take a juvenile’s

photograph and fingerprints when the juvenile is in the physicalcustody of law enforcement or the Department of JuvenileJustice and Delinquency Prevention and a petition has been pre-pared alleging that the juvenile, while at least ten years of age,committed a nondivertible offense.43

Unless the juvenile’s photograph and fingerprints were takenwhile the juvenile was in custody and have not been destroyed, ajuvenile’s photograph and fingerprints must be taken after thejuvenile is adjudicated delinquent for committing a felony whileat least ten years of age.44

A county juvenile detention facility must photograph ajuvenile who is placed in the facility if the juvenile was at leastten years of age when he or she allegedly committed a nondi-vertible offense.45

Confidentiality in Juvenile Delinquency Proceedings 9

In each of these instances, the fingerprints and photographmust be in a proper format for transfer to the State Bureau ofInvestigation (SBI) and the Federal Bureau of Investigation(FBI). If the juvenile is adjudicated delinquent for committing afelony while at least ten years of age, the juvenile’s fingerprintsmust be sent to the SBI and entered into the AutomatedFingerprint Identification System (AFIS) to be used for inves-tigative and comparison purposes. Because confidential juvenilelaw-enforcement records can be examined and copied without acourt order by “[l]aw enforcement officers sworn in this State,”46

it seems probable that a local law-enforcement agency couldsend the fingerprints to the SBI before an adjudication. The fingerprints probably should not be entered into the AFIS unlessthe juvenile is adjudicated delinquent for committing a felonywhile at least ten years of age.

The statute says that the juvenile’s photograph must be in aformat approved by the SBI, but it is silent about whether orwhen the photograph should be sent to the SBI, stating only thatit “may be used for all investigative or comparison purposes.”47

Fingerprints and photographs of juveniles are not publicrecords. They should not be placed in the juvenile’s court file,they must be kept separate from any juvenile record (other thanthe electronic file maintained by the State Bureau ofInvestigation), and they may not be expunged.48 However, thecourt may order release of a juvenile’s photograph to the publicif the juvenile escapes from a juvenile facility or from the cus-tody of juvenile justice personnel or a law-enforcement official.49

And if the juvenile is a runaway, the juvenile’s photograph maybe published with the parent’s permission.50

All juvenile fingerprints and photographs taken pursuant tothese mandatory provisions must be destroyed if

• no petition is filed against the juvenile within one yearafter the fingerprints and photograph are taken;

• the court does not find probable cause; or• a petition is filed, but the juvenile is not adjudicated

delinquent for any offense.51

3. Case Is Transferred to Superior CourtA juvenile’s fingerprints must be taken when the juvenile

court finds probable cause to believe the juvenile committed afelony while at least thirteen years of age and orders that thejuvenile’s case be transferred to superior court for trial as anadult. These fingerprints must be sent to the SBI.52

Department of Juvenile Justice and DelinquencyPrevention Records

The Department of Juvenile Justice and Delinquency Preventionis the state agency that provides juvenile services throughout thestate. Juvenile court counselors employed by the departmentreceive and screen complaints about delinquent behavior, divertcases from court or approve the filing of juvenile petitions, preparepredisposition reports and recommendations for the court, andsupervise juveniles who are on probation or who have beenreleased from a youth development center. In addition to copies of

many of the same things that are included in a juvenile’s courtrecord, the juvenile court counselor’s record may include familybackground information; social, medical, psychiatric, educational,or psychological reports; probation reports; and other informationthe court finds should be protected from public inspection.53 Thedepartment also keeps records in relation to its responsibility forthe state’s youth development centers, state-operated detentionfacilities, and a variety of community-based programs for juve-niles. Those who may access and obtain copies of the department’srecords about a juvenile without a court order are the juvenile andthe juvenile’s attorney; the juvenile’s parent, guardian, or custo-dian, or an authorized representative of one of those people; pro-fessionals in the department who are involved directly in thejuvenile’s case; and juvenile court counselors. Otherwise, theserecords may be examined only by order of the court or pursuant tothe information-sharing rules described below.54

Social Services Records

If the court at disposition places the juvenile in the custody of acounty department of social services,55 the records kept by thatdepartment will contain information about the juvenile, his orher family, the juvenile’s placement, and the court proceeding.These records are not open to the public and may be examinedor copied only by order of the court, as permitted by social serv-ices administrative rules,56 or pursuant to the information-shar-ing rules described below.

Confidentiality of Information about Juveniles

The Juvenile Code not only restricts access to juvenile records, itcontains the following broad proscription against disclosure ofinformation about juveniles involved with the court: “Disclosureof information concerning any juvenile under investigation oralleged to be within the jurisdiction of the court that wouldreveal the identity of that juvenile is prohibited.”57 The Codealso carves some huge exceptions into this general prohibition.

Agencies Authorized to Share Information

Often professionals who work with children and families perceivethat confidentiality requirements frustrate their ability to provideappropriate services to the very people the requirements weredesigned to protect. In an effort to address that concern, theGeneral Assembly required the Department of Juvenile Justiceand Delinquency Prevention, after consulting with theConference of Chief District Court Judges, to adopt rules desig-nating agencies that are required to share information about juve-niles in specified circumstances.58 The list of authorized agenciesappears in the rule that is duplicated on page 10.59 The rules donot apply to court records. The statute requires authorized agen-cies to share information requested by other authorized agencies.It also sets the parameters of the information that must beshared and the purposes for which it may be requested and used.

NORTH CAROLINA ADMINISTRATIVE CODE

TITLE 28 – JUVENILE JUSTICE AND DELINQUENCY PREVENTION

CHAPTER 1 – DEPARTMENTAL RULES

SUBCHAPTER 01A – DEPARTMENTAL MANDATES

SECTION .0300 – INFORMATION SHARING

28 NCAC 01A .0301 DESIGNATED AGENCIES AUTHORIZEDTO SHARE INFORMATION

The following agencies shall share with one another upon request,information in their possession that is relevant to any case in which apetition is filed alleging that a juvenile is abused, neglected, dependent,undisciplined or delinquent:

(a) The Department of Juvenile Justice & DelinquencyPrevention;

(b) The Office of Guardian Ad Litem Services of theAdministrative Office of the Courts;

(c) County Departments of Social Services;(d) Area mental health developmental disability and substance

abuse authorities;(e) Local law enforcement agencies;(f ) District attorneys’ offices as authorized by G.S. 7B-3100;(g) County mental health facilities, developmental disabilities and

substance abuse programs;(h) Local school administrative units;(i) Local health departments; and(j) A local agency designated by an administrative order issued by

the chief district court judge of the district court district inwhich the agency is located, as an agency authorized to shareinformation pursuant to these Rules and the standards setforth in G.S. 7B-3100.

History Note: Authority G.S. 7B-3100;Temporary Adoption Eff. July 15, 2002;Eff. April 1, 2003.

28 NCAC 01A .0302 INFORMATION SHARING AMONGAGENCIES

(a) Any agency that receives information disclosed pursuant to G.S.7B-3100 and shares such information with another authorized agency,shall document the name of the agency to which the information wasprovided and the date the information was provided.(b) When the disclosure of requested information is prohibited orrestricted by federal law or regulations, a designated agency shall sharethe information only in conformity with the applicable federal law andregulations. At the request of the initiating designated agency, the desig-nated agency refusing the request shall inform that agency of the spe-cific law or regulation that is the basis for the refusal.

History Note: Authority G.S. 7B-3100;Temporary Adoption Eff. July 15, 2002;Eff. April 1, 2003.

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If A and B are authorized agencies, at A’s request B mustshare with A information in B’s possession that concerns a juvenile, but only if

1. a petition has been filed alleging that the juvenile is delin-quent (or abused, neglected, dependent, or undisci-plined);

2. the requested information is relevant to the case in whichthe petition was filed; and

3. the agency requesting the information intends to use itonlya. to protect the juvenile,b. to protect others, or c. to improve the educational opportunities

of the juvenile.

Any confidential information shared by authorized agenciesremains confidential, and the obligation to share continues untilthe court’s jurisdiction over the juvenile ends. The statute doesnot specify any sanction for misusing the information, and itdoes not address circumstances in which two agencies disagreeabout whether information is “relevant” to a juvenile’s case.

School principals are subject to more detailed requirementsregarding the handling and use of information they receive pur-suant to the rule.60 The information may not be used as the solebasis for a decision to suspend or expel a student. A principalmust keep the documents in locked storage separate from thestudent’s other school records and may not copy them. At thesame time, the principal is required to show the documents toanyone who (1) has direct guidance, teaching, or supervisoryresponsibility for the student; (2) has a specific need to know inorder to protect the safety of the student or others; and (3)agrees in writing to maintain the confidentiality of the informa-tion. Failure to maintain confidentiality is grounds for anemployee’s dismissal.61

The principal is required to destroy the documents when heor she (1) receives notification that the court has dismissed thepetition, transferred the student’s case to superior court for trialas an adult, or granted the student’s petition for expunction ofthe records;62 or (2) determines that the school no longer needsthe information to protect the safety of or improve educationalopportunities for the student or others.63

Confidentiality in Juvenile Delinquency Proceedings 11

Information Provided to Schools

A school principal is not allowed to view a juvenile’s court recordwithout a court order. Juvenile court counselors, however, arerequired to notify principals when certain events occur involvingjuveniles who attend the principal’s school, whether public orprivate.64 The juvenile court counselor must notify the principal,both verbally and in writing, when

1. a juvenile petition is filed alleging that a student is delin-quent for committing a felony;

2. a juvenile petition alleging that a student is delinquent forcommitting a felony is dismissed;

3. the juvenile court transfers a student’s case to superiorcourt for trial as an adult;

4. the court enters a dispositional order requiring a juvenileto attend school in a case in which the petition allegedthat the student was delinquent for committing a felony(even if the adjudication was for a lesser offense); or

5. the court modifies or vacates an order in a case in whichthe petition alleged that a student was delinquent forcommitting a felony (even if the adjudication was for alesser offense).65

The principal is not entitled to detailed information aboutthe juvenile’s case; however, the notification that a petition hasbeen filed must describe the nature of the alleged offense, andnotification of the entry of an order must describe the court’saction and any applicable disposition requirements.66

Like the information a school principal receives pursuant to the information-sharing rule, written notifications receivedfrom the court counselor must be kept in locked storage separatefrom the student’s other school records. The principal may notcopy the documents and must show them to individuals whohave direct involvement with the student, have a need to knowin order to protect the safety of the student or others, and agreein writing to keep the information confidential. The principalmay use the information only to protect the safety or improvethe educational opportunities of the student or others. He or shemust return the documents to the juvenile court counselor whenthe student graduates, withdraws, transfers to another school, oris suspended or expelled. If the juvenile is transferring, the prin-cipal must give the court counselor information about the stu-dent’s new school.67

Child Abuse, Neglect, and Dependency

If information or records about a juvenile give a person cause tosuspect that the juvenile, or any other juvenile, is abused, neg-lected, or dependent, that individual must report the informa-tion to the county department of social services.68 In addition,records or information, even if confidential, must be provided toa county department of social services that makes a writtendemand for it in connection with an investigation of a report ofchild abuse, neglect, or dependency, or the provision of protec-tive services.69 Similarly, a guardian ad litem—a court-appointedadvocate for a child in a juvenile proceeding—may demand any

confidential information he or she considers relevant to thatjuvenile’s case.70

Use of the Juvenile’s Record in Court

Despite the general confidentiality of a delinquent juvenile’srecord and related information about the juvenile, some adjudi-cations of delinquency must be disclosed in other court proceed-ings and have the potential to affect the juvenile long after he orshe becomes an adult.

Impeachment of a Witness in a Juvenile Proceeding

Ordinarily, witnesses may be impeached—that is, have theircredibility challenged—by evidence of their prior criminal con-victions.71 An adjudication of delinquency, however, is not acriminal conviction.72 Nevertheless, if a juvenile chooses to tes-tify in a case in which he or she is alleged to be delinquent, or isa witness in another juvenile’s delinquency proceeding, the courtmay order the juvenile to testify about whether he or she hasbeen adjudicated delinquent, even if the record of that adjudica-tion has been expunged.73

Impeachment of a Witness in Other Proceedings

In cases other than juvenile delinquency proceedings, a witness’sdelinquency adjudication generally may not be used to impeachthe witness.74 In a criminal case, however, the court may allowevidence of a witness’s earlier delinquency adjudication toimpeach the witness, but only if

1. the witness is not the defendant;2. an adult’s conviction for the same offense would be admis-

sible to attack an adult’s credibility; that is, (a) the offensefor which the witness was adjudicated delinquent was afelony or a Class A1, Class 1, or Class 2 misdemeanor, and(b) the adjudication is either less than ten years old ormeets an exception to the ten-year rule; and

3. the court finds that the evidence is necessary for a fairdetermination of the defendant’s guilt or innocence.75

Thus evidence of an adjudication of delinquency may not beused to impeach any witness in a civil case or a defendant whotestifies in his or her own criminal case.76 It may be used toimpeach a witness other than the defendant in a criminal case,but only if a conviction of the same offense could be used toimpeach an adult and the court makes a finding of necessity.77

Within those parameters, the determination of admissibility of awitness’s juvenile record is in the trial court’s discretion.78

Non-impeachment Use in Criminal Cases

In some instances, evidence of a delinquency adjudication maybe used in a criminal trial for purposes other than impeachment.

12 Special Series No. 19 | Janet Mason

A delinquency adjudication for an offense that would be a ClassA, B1, B2, C, D, or E felony, if committed by an adult, may beintroduced in a criminal trial as follows:

1. as evidence of other crimes, wrongs, or acts, for purposesother than proving character—for example, to show“motive, opportunity, intent, preparation, plan, knowl-edge, identity, or absence of mistake, entrapment or accident”;79

2. as an aggravating factor for purposes of sentencing in anon–capital case;80 or

3. as an aggravating circumstance for purposes of sentencingin a capital case, but only if the delinquency adjudicationwas for an offense that would be a capital felony if com-mitted by adult or for an offense that involved the use orthreat of violence to a person.81

The juvenile record may be used for these purposes, though,only pursuant to an order of the judge in the criminal case who,before entering such an order, must hold an in-camera hearingto determine whether the record is admissible.82

Other Uses

The Juvenile Code states that law enforcement, the magistrate,and the prosecutor may use the record of a defendant’s delin-quency adjudication in making decisions related to pretrial releaseand plea negotiating if the adjudication was for a felony offense.83

Q: If a juvenile, after becoming an adult, is charged with a crime, can his or her juvenile record be used in the criminal trial?

A: Yes, but only if the adjudication was for a Class E or moreserious felony, only for limited purposes, and only after thejudge in the criminal case inspects the record in camera andorders that it is admissible.

Publicity about Juveniles

As explained above, the Juvenile Code generally prohibits the dis-closure of information that would reveal the identity of a juvenilewho is under investigation or alleged to be delinquent. It is diffi-cult to reconcile this provision with the fact that court hearings indelinquency cases usually are open to the public. Unless the courtfinds good cause for closing a hearing, the juvenile’s identity andextensive information about the case may be disclosed to anyonewho chooses or happens to sit in court during a juvenile hearing.

If one of the people observing a juvenile hearing is a reporteror other media representative, how much leeway does that per-son have to publish what he or she observes and hears? What ifthe reporter does not attend the hearing, but learns a juvenile’sidentity and receives information about the case from the vic-tim’s family? Does the prohibition even apply to the reporter?Does it apply to the victim’s family?

Legislative intent is not clear; however, it seems likely thatthis prohibition against disclosing information is directed to the custodians of official records concerning a juvenile and thosewith official duties in relation to a juvenile’s alleged or actualdelinquency. If that interpretation is correct, the prohibitionwould apply to the clerk of superior court, law-enforcement officers, juvenile court counselors, social workers, the prosecutor,the judge, and possibly others; but it would not constrain thejuvenile’s family or classmates, the victim and his or her family,or the media.84

Even if read more broadly, the prohibition probably wouldbe unenforceable against persons other than (1) the public offi-cials whose duties include safeguarding the confidentiality ofjuvenile records and information85 and (2) those who have theinformation only by virtue of their positions or a specific statuteor rule that includes a restriction on disclosure. It is very unlikelythat reporters or others can be enjoined from publishing or dis-closing information about juvenile cases when they acquire theinformation by being present during a court hearing that is opento the public or in some other legal fashion. A statute that is notspecific to juvenile cases, but that does not exclude them either,provides as follows:

No court shall make or issue any rule or order banning, prohibiting,or restricting the publication or broadcast of any report concerningany of the following: any evidence, testimony, argument, ruling,verdict, decision, judgment, or other matter occurring in open courtin any hearing, trial, or other proceeding, civil or criminal. . . . Ifany rule or order is made or issued by any court in violation of theprovisions of this statute, it shall be null and void and of no effect,and no person shall be punished for contempt for the violation ofany such void rule or order.86

In a juvenile case from Oklahoma, the U.S. Supreme Courtheld that a pretrial order restraining publicity about a juvenilecase violated the free press guarantee of the First and FourteenthAmendments, where (1) members of the press had been presentat the juvenile hearing with the knowledge of the judge and bothcounsel, (2) there was no objection to the presence of the pressor to their photographing the juvenile when he left the hearing,and (3) the juvenile’s identity had not been acquired unlawfullybut was revealed publicly during the hearing.87

The imposition of a penalty after the publication of a juve-nile’s identity is similarly unlikely.88 In Smith v. Daily MailPublishing Co., the Supreme Court held that imposing criminalsanctions on a newspaper for publishing the name of a juvenilewho was alleged to be delinquent, which the paper had obtainedlawfully, violated the First Amendment.89 The Court held thatthe state’s interest in protecting juvenile offenders, while sub-stantial, was not substantial enough to overcome the constitu-tional interests at stake.

The juvenile, of course, has a constitutional right to a fairtrial. When that right and others’ First Amendment rights con-flict, “one seeking to impose a ‘gag’ rule carries a heavy burden ofshowing justification for the imposition of such a rule.”90 Thepresumed invalidity of restraints on expression is not limited to

Confidentiality in Juvenile Delinquency Proceedings 13

juvenile proceedings or to attempts to impose prior restraint onthe media. Requests for gag orders directed to the parties, theirattorneys, or people who are not parties to the action are subjectto comparable scrutiny.91

Except in extraordinary circumstances, courts are not likelyto uphold prior restraints on or subsequent sanctions for thepublication or broadcasting of legally obtained information aboutdelinquent juveniles (or those alleged to be delinquent). Still, themedia in North Carolina have shown a substantial willingness,consistent with the state’s policy of confidentiality, to refrainfrom disclosing information that would reveal the identity ofjuveniles involved in delinquency proceedings.92 It is relativelyunusual to see juvenile offenders identified by name in newsreports in this state. The media’s self-restraint in this regard isnot universal; however, most cases in which the media do iden-tify juvenile suspects or offenders involve serious offenses andstrong public interest. As two media law experts have written,“When truly heinous crimes of violence are committed by juve-niles, the news media may well have an obligation to the com-munity to report not only the nature of the crime but also thename of the juvenile accused of committing it.”93

Q: Can a newspaper publish the name and picture of a juve-nile who is alleged to be delinquent for committing sev-eral drive-by shootings?

A: Yes, but only if the newspaper learned the juvenile’s nameand obtained the picture in a lawful fashion and not fromcourt officials.

Community Accountability

A broadening access to juvenile hearings and records is not theonly respect in which juvenile court has been shedding its aura ofsecrecy. While the Juvenile Code aims to ensure accountabilityby the juvenile and the juvenile’s parents for the juvenile’s delin-quent conduct, it also suggests a community responsibility forproviding appropriate, effective services to prevent and respondto delinquent behavior. The General Assembly has expressed anintention to provide local, noninstitutional dispositional alterna-tives for delinquent juveniles as well as local strategies to identifyjuveniles who are at risk of becoming delinquent and to preventdelinquency. These programs and services are to be “planned andorganized at the community level and developed in partnershipwith the State.”94

The board of county commissioners in every county isrequired to appoint a Juvenile Crime Prevention Council toserve as the planning body for these programs and services.95

The councils include representatives from local schools, law-enforcement agencies, human services agencies, court systems,and juvenile services offices. Perhaps less predictably, the legisla-

ture also directed that each council should include a member ofthe business community, a member of the faith community, atleast two people under age eighteen, a representative from theUnited Way or another nonprofit agency, and up to seven mem-bers of the public.96 Each council plays a role in deciding howavailable funds for juvenile justice programs are spent. Thecouncils also are charged with conducting annual reviews ofcommunity needs and resources relating to delinquency;increasing public awareness of the causes of delinquency andstrategies to reduce it; and evaluating juvenile services and pro-grams in the county.97

A community can hardly be expected to understand the juve-nile justice system or to participate effectively in addressing prob-lems of delinquency if those things are hidden from the public’sview. Allowing public access to the juvenile court process, in thewords of one court, “can promote informed public involvementin government and enhance public confidence in the judicialbranch,” as well as “promote informed public discussion and leadto more intelligent responses to problems and issues.”98

Conclusion

Most juveniles in North Carolina never have contact with thestate’s juvenile justice system. Many of those who do are divertedfrom the system at an early stage. Others are placed on proba-tion with supervision from a juvenile court counselor, are con-nected with appropriate counseling or treatment services, or areplaced in residential or nonresidential programs consistent withthe Juvenile Code’s goal of helping them become nonoffending,responsible, and productive members of the community. A feware placed in secure residential youth development centers, for-merly known as training schools.

The range of delinquent acts these young people commitmirrors the crimes committed by adults. Many are minor, evenpetty. But others are violent, destructive, or even deadly. Someare committed by children who are as young as six, and othersby fifteen-year-old juveniles who may have extensive histories inthe juvenile justice system. North Carolina’s Juvenile Coderequires a balancing that takes into account the concurrent, andsometimes conflicting, goals of rehabilitation and protection ofthe public.

Some juveniles’ rehabilitation will be made more difficult ifthey and their families are subjected to widespread publicity andif their teachers, acquaintances, and peers are made aware of thedetails of their court involvement. At the same time, the publichas a strong interest in knowing that certain juveniles are or maybe dangerous. In addition, it seems clear that the more awarenessand understanding people have of delinquency problems in theircommunities, the more likely they are to become involved inhelping address those problems.

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Notes

1. See, e.g., Eugene H. Czajkoski, Why Confidentiality in Juvenile Justice?,33 Juv. & Fam. Ct. J. 49–50 (1982) (characterizing such phrasing as “termi-nological manipulation” that does little to spare young people the stigma ofbeing involved in the juvenile justice system).

2. See, e.g., In re Wilson, 153 N.C. App. 196, 568 S.E.2d 862 (2002), inwhich the court said in a footnote: “We are aware some attorneys represent-ing juveniles charged with delinquent acts respond ‘not responsible’ whenasked in court how the juvenile pleads to the petition. The proper inquiry iswhether the juvenile ‘admits’ or ‘denies’ the allegations of the petition andthe proper response is that the allegations are either ‘admitted’ or ‘denied.’”

3. See, e.g., Thomas A. Jacobs, Children and the Law: Rights andObligations § 8:49 (New York: Clark Boardman Callaghan, 1995–, Cum.Supp. 2004) (“The trend in confidentiality of records law seems to betoward more disclosure of juvenile records.”); National Council ofJuvenile and Family Court Judges, Where We Stand: An Action Planfor Dealing with Violent Juvenile Crime” (March 1, 1994) (recommending that juvenile court be open to the public for fact-findinghearings involving violent crimes and transfers of juveniles’ cases to adultcriminal court); Kent Markus, Keynote Address, National Conference onJuvenile Justice Records: Appropriate Criminal and NoncriminalJustice Uses, 3–7 [hereinafter, National Conference] in Proc.BJS/SEARCH, Nat’l Conf. on Juv. Just. Rec. (Washington, D.C.: U.S.Dept of Justice, 1997, NCJ-164269) (“Right and left, State legislatures areamending their laws, not only to permit greater access to juvenile records,but also greater access to juvenile [delinquency] proceedings overall.”).

4. Introduction, National Conference, vii.5. Id.6. For an excellent discussion of the complex issues involved and pro-

posals for balancing the competing interests, see Leonard P. Edwards,Confidentiality and the Juvenile and Family Courts, Juv. & Fam. Ct J. 1–24(2004).

7. The North Carolina Juvenile Code [G.S. Ch. 7B] is the body of lawthat specifies procedures for juvenile cases. In addition to procedures relat-ing to delinquent juveniles, the Code addresses those concerning juvenileswho are alleged to be abused, neglected, dependent, or undisciplined. Thisarticle addresses confidentiality only in relation to juveniles involved indelinquency proceedings, although many of the issues and Juvenile Codeprovisions relating to juveniles involved in other types of juvenile proceed-ings are the same or similar.

8. Final Report, Governor’s Commission on Juvenile Crime andJustice (March 10, 1998).

9. For excellent discussions of the concept of confidentiality, both ingeneral and as it relates to social services, see John L. Saxon, Confidentialityand Social Services (Part I):What Is Confidentiality? Soc. Serv. L. Bull. No. 30(February 2001); Confidentiality and Social Services (Part II): Where DoConfidentiality Rules Come From?, id., No. 31 (May 2001); Confidentialityand Social Services (Part III): A Process for Analyzing Issues InvolvingConfidentiality,” id., No. 35 (April 2002); Confidentiality and Social Services(Part IV): An Annotated Index of Federal and State Confidentiality Laws, id.,No. 37 (Oct. 2002) (Chapel Hill: Institute of Government, University ofNorth Carolina at Chapel Hill). For ordering information, call (919) 966-4119 or see http://www.iog.unc.edu.

10. See, e.g., Samuel M. Davis, Rights of Juveniles: The JuvenileJustice System, 2d ed., 1-1–3 (Eagan, Minn.: Thomson West, 2004);Davis, Founding Principles of the Juvenile Court, in 2 Legal Rights ofChildren, 2d ed., 242–48 (Donald T. Kramer, ed., Colorado Springs:Shepard’s/McGraw-Hill, Inc., 1994); Janet E. Ainsworth, Re-ImaginingChildhood and Reconstructing the Legal Order: The Case for Abolishing theJuvenile Court, 69 N.C. L. Rev. 1083, 1096–1101 (1991).

11. The protections are not exactly the same, in part because juvenileproceedings are not criminal actions. The protections afforded juvenilesderive from the juvenile’s right to due process. See Kent v. United States,383 U.S. 541 (1966); In re Gault, 387 U.S. 1 (1967). Under NorthCarolina law, juveniles who are alleged to be delinquent, unlike adults who

are charged with crimes, are not entitled to trial by jury, do not have a rightto be released on bond when they are held in detention, and may not waivetheir right to be represented by counsel (G.S. 7B-2405).

12. See, e.g., In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001)(Statutory requirement that every delinquent juvenile committed to train-ing school remain there for a minimum of six months did not violate thejuvenile’s right to equal protection, even though the maximum sentence anadult could receive for the same offense was 120 days.).

13. G.S. 7B-1500.14. G.S. 7B-2500.15. Most states specify either eighteen or seventeen as the age under

which a child is subject to the jurisdiction of the juvenile court for criminalconduct. Only three other states—Connecticut, New York, and Vermont—have a jurisdictional age of sixteen for purposes of delinquency. See Davis,Rights of Juveniles, Appen. B (“Chart of Selected State Statutes”).

16. Any juvenile who is under the age of eighteen and is not married,emancipated, or in the armed forces is “subject to the supervision and con-trol of the juvenile’s parents” (G.S. 7B-3400, -3402).

17.The judge must transfer the case to superior court if the judge findsprobable cause to believe the juvenile, while age thirteen, fourteen, or fifteenyears old, committed first-degree murder. The judge has discretion, afterconsidering a number of specified factors, to decide whether to transfer thecase after finding probable cause to believe a juvenile committed some otherfelony (G.S. 7B-2203). If convicted in a case that is transferred to superiorcourt, the juvenile must be prosecuted as an adult for any offense he or shecommits subsequent to the conviction (G.S. 7B-1604(b)).

18. Dispositional options, which are set out in G.S. 7B-2502 and 7B-2506, include, among others, probation, restitution, treatment, a fine,placement in foster care or a wilderness camp program, intermittent confinement in a detention facility, commitment to a youth developmentcenter, or some combination of these or other options.

19. G.S. 7B-2402.20. North Carolina’s statute protects the juvenile’s right to a public hear-

ing. It does not acknowledge or create a public right of access to juvenilecourt proceedings. In Virmani v. Presbyterian Health Services Corp., 350 N.C.449, 515 S.E.2d 675 (1999), the North Carolina Supreme Court held that“the open courts provision of Article I, Section 18 of the North CarolinaConstitution guarantees a qualified constitutional right on the part of thepublic to attend civil court proceedings.” That right, the court said, is sub-ject to “reasonable limitations imposed in the interest of the fair administra-tion of justice or for other compelling public purposes.” See also James C.Drennan, Privacy and the Courts, 67 Popular Government 25–32 (Spring2002).

21. See G.S. 7B-3000(c).22. G.S. 7B-3000(b). The prosecutor may share information from a

juvenile’s record with law-enforcement officers who are sworn in NorthCarolina but may not allow a law-enforcement officer to photocopy anypart of the juvenile’s record.

23. The Juvenile Code defines “court” as “[t]he district court division ofthe General Court of Justice,” and “judge” as “any district court judge,”unless the context clearly requires otherwise (G.S. 7B-1501(4) and (15)).For an example of circumstances in which a superior court judge may orderdisclosure of a juvenile court record, see infra page 7.

24. In re M.E.B., 153 N.C. App. 278, 282, 569 S.E.2d 683, 686 (2002)(Probation condition requiring a juvenile to wear a sign saying “I am a juve-nile criminal” violated the Juvenile Code’s confidentiality requirements.).The court went on to say that the provision does not authorize the court “toplace juvenile records in a public display case on the courthouse steps.” Id.

25. Although the legislature has not done so, it clearly could legislate aprocedure to implement the authority the Juvenile Code implicitly givesjudges to enter orders authorizing access to juvenile court records. In 2001the General Assembly enacted G.S. 1-72.1, which creates a procedurewhereby a person may file a motion in a civil proceeding for the limitedpurpose of asserting a right of access to the proceeding or to a related courtrecord without intervening in or becoming a party to the proceeding for anyother purpose. The section, however, provides explicitly that it does notapply to juvenile proceedings or juvenile court records ( S.L. 2001-516).

Confidentiality in Juvenile Delinquency Proceedings 15

26. It is unlikely that the person seeking access to the juvenile recordwould be entitled to intervene as a matter of right; thus the motion wouldbe directed to the court’s discretion. See G.S. 1A-1, Rule 24.

27. This type of administrative order should not be confused with anorder a chief district court judge enters pursuant to 28 N.C. Admin. Code01A .0301(j), an information-sharing rule issued pursuant to G.S. 7B-3100, which applies to local agencies’ records, not court records.

28. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256S.E.2d 818, disc. review denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

29. Id.. at 298, 256 S.E.2d at 822.30. Id. 31. Brady v. Maryland, 373 U.S. 83 (1963).32. Pennsylvania v. Ritchie, 480 U.S. 39 (1987). See also State v.

Phillips, 328 N.C. 1, 399 S.E.2d 293, cert. denied, 501 U.S. 1208 (1991);State v. McGill, 141N.C. App. 98, 539 S.E.2d 351 (2000); State v.Johnson, ___ N.C. App. ___, 599 S.E.2d 599 (2004); State v. Allen, ___N.C. App. ___, 601 S.E.2d 299 (2004).

33. See Rule 12.1, Rules of Record Keeping, North CarolinaAdministrative Office of the Courts.

34. G.S. 7B-2410. Adjudicatory hearings, dispositional hearings, andhearings on probable cause and transfer to superior court must be recordedby stenographic notes or by electronic or mechanical means.

35. G.S. 7B-2410, -2901.36. G.S. 7B-3001(b).37. Response of Attorney General Lacy H. Thornburg to Maurice A.

Cawn, Police Attorney for the City of Greensboro, 58 N.C.A.G. 33–34,May 17, 1988.

38. Id.39. G.S. 7B-2105. Nontestimonial identification orders also may

authorize procedures for taking palm prints, measurements, blood speci-mens, urine specimens, saliva samples, hair samples, handwriting exemplars,and other identification procedures that require the juvenile’s presence.

40. See G.S. 7B-2103, -2105, and -2107.41. G.S. 7B-2108.42. Id. The statute states that “[i]f a juvenile 13 years of age or older is

adjudicated delinquent for . . . a felony . . . , all records resulting from anontestimonial order may be retained in the court file.” But it also requires“safeguards . . . to limit their use to inspection by law enforcement officersfor comparison purposes in the investigation of a crime.” Since law enforce-ment officers do not have access to a juvenile’s court file but are theintended users of these records, it is logical to assume that they shouldremain in the possession of the law-enforcement agency. When fingerprintsor photographs are taken pursuant to G.S. 7B-2102 because the juvenile isalleged to have committed a nondivertible offense, the statute explicitly pro-vides that they “shall not be included in the clerk’s record.”

43. G.S. 7B-2102(a). Nondivertible offenses include murder, first- or second-degree rape, first- or second-degree sexual offense, arson, certainfelony drug offenses, first-degree burglary, crime against nature, and anyfelony that involves willful infliction of serious bodily injury or that wascommitted by use of a deadly weapon (G.S. 7B-1701).

44. G.S. 7B-2102(b). 45. G.S. 7B-2102(a). For a list of nondivertible offenses, see note 43,

supra.46. G.S. 7B-3001(b).47. G.S. 7B-2102(c).48. G.S. 7B-2102(d). For provisions relating to expungement, see G.S.

7B-3200 through 7B-3202. 49. G.S. 7B-2102(d1).50. G.S. 7B-3100(b).51. G.S. 7B-2102. 52. G.S. 7B-2201.53. G.S. 7B-3001(a).54. The issues regarding how one obtains a court order for these records

are similar to those discussed above regarding the juvenile’s court file.Occasionally, though, someone other than a judge might have authority toorder the release of confidential agency records. In an appeal challenging theauthority of the North Carolina Industrial Commission to compel discovery

of confidential information from the state Department of Juvenile Justiceand Delinquency Prevention, the court of appeals held that in a proceedingunder the State Tort Claims Act the commission was a “court” for purposesof compelling the discovery. Doe v. Swannanoa Valley Youth DevelopmentCenter, ___ N.C. App. ___, 592 S.E.2d 715 (2004), appeal dismissed,review denied, 358 N.C. 376, 596 S.E.2d 813 (2004).

55. Under G.S. 7B-2506(1)c, placement of the juvenile in the custodyof the county department of social services is an available disposition inevery delinquency case.

56. See G.S. 108A-80 (confidentiality of social services records) and 10AN.C.Admin.Code, Ch. 69.

57. G.S. 7B-3100(b). For exceptions that allow publication of picturesof juveniles in narrow circumstances, see text at notes 49 and 50, supra.

58. G.S. 7B-3100.59. Although the district attorney’s office is an authorized agency for

purposes of requesting information, G.S. 7B-3100(a) makes clear thatnothing in the statute or the rule requires the district attorney to disclose orrelease any information in the district attorney’s possession. It also acknowl-edges that any federal restrictions on the disclosure of information super-sede the state statute and rules. Chief district court judges are authorized tosupplement the list of authorized agencies by issuing local administrativeorders designating local agencies that are not listed in the rule already.

60. These requirements are contained in G.S. 115C-404.61. G.S. 115C-404(b).62. The principal receives notification from the juvenile court counselor

in specified circumstances. See the text at note 65, infra.63. G.S. 115C-404.64. A law enforcement official must notify a school principal when a

student who is sixteen or older, and therefore not a juvenile for purposes ofcriminal conduct, is charged with a felony other than a motor vehicleoffense. G.S. 15A-505.

65. G.S. 7B-3101.66. Id. As the representative of an “authorized agency,” of course, the

principal could request additional information from the juvenile courtcounselor or other agencies (but not the court), under the information-sharing rules described above.

67. G.S. 7B-3101.68. G.S. 7B-301. See also, Janet Mason, Reporting Child Abuse

and Neglect in North Carolina, 2d ed., Chapel Hill: School ofGovernment, University of North Carolina at Chapel Hill, 2003. An elec-tronic version of the book and a 2003 supplement can be accessed athttp://ncinfo.iog.unc.edu/pubs/electronicversions/rca/rca.htm.

69. G.S. 7B-302.70. G.S. 7B-601.71. G.S. 8C-1, Rule 609.72. G.S. 7B-2412 (“An adjudication that a juvenile is delinquent . . .

shall neither be considered conviction of any criminal offense nor cause thejuvenile to forfeit any citizenship rights.”).

73. G.S. 7B-3201(b). See also In re S.S.T., ___ N.C. App. ___, 599S.E.2d 59 (2004).

74. G.S. 8C-1, Rule 609(d).75. G.S. 8C-1, Rule 609(d). This statute reflects the U.S. Supreme

Court’s holding in Davis v. Alaska, 415 U.S. 308 (1974) that the state’sinterest in protecting confidentiality of a juvenile’s record “cannot requireyielding of so vital a constitutional right” as the effective cross-examinationof an adverse witness. In an unpublished opinion, the court of appealsrejected defendant’s argument that the rule could be invoked only toimpeach witnesses for the state. State v. Jenkins, 155 N.C. App. 222, 573S.E.2d 774 (unpublished, 2002) (Trial court did not err in allowing thestate to question defendant’s alibi witness about her juvenile record.).

76. Courts have rejected the argument that for impeachment purposespublic policy also requires excluding evidence of prior bad acts the defen-dant committed while a juvenile. See State v. Perkins, 154 N.C. App. 148,571 S.E.2d 645 (2002).

77. See State v. McAllister, 132 N.C. App. 300, 511 S.E.2d 660, aff ’dper curiam, 351 N.C. 44, 519 S.E.2d 524 (1999) (Trial court did not abuseits discretion in excluding evidence of victim’s juvenile adjudications.).

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78. State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989) (Trialcourt did not abuse its discretion when it allowed use of a witness’s juve-nile record on cross-examination for impeachment purposes but denieddefendant’s request to introduce the record into evidence at the close ofdefendant’s evidence.).

79. G.S. 7B-3000(f ); G.S. 8C-1, Rule 404(b). It should be noted thatG.S. 8C-1, Rule 404(b), allows evidence of an offense committed by a juve-nile, if it would have been a Class A, B1, B2, C, D, or E felony if committedby an adult, regardless of whether the offense resulted in an adjudication ofdelinquency.

80. G.S. 7B-3000(f ); G.S. 15A-1340.16(d)(18a). See, e.g., State v.Taylor, 128 N.C. App. 394, 496 S.E.2d 811, aff ’d per curiam, 349 N.C.219, 504 S.E.2d 785 (1998) (juvenile adjudication for second-degree rape).

81. G.S. 7B-3000(f ); G.S. 15A-2000(e)(2) and (3). See, e.g., State v.Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002) (juvenile adjudication forsolicitation to commit murder); State v. Leeper, 356 N.C. 55, 565 S.E.2d 1(2002) (juvenile adjudication for armed robbery).

82. G.S. 7B-3000(f ). The fact that these requirements are stated only inthe Juvenile Code, and not in the Rules of Evidence under which the juve-nile offense or records are made admissible, may create a risk that they willbe overlooked.

83. G.S. 7B-3000(e). Of those authorized to use the record for thesepurposes, only the prosecutor can access the juvenile court record without acourt order.

84. The prohibition against disclosing information, as opposed torecords, extends only to information that would reveal the juvenile’s iden-tity. So the reporter, even if subject to the prohibition, apparently couldsafely publish a detailed description of the case without naming the juvenileor describing the juvenile in ways that would reveal his or her identity. Ofcourse, in some communities or circumstances the disclosure of a relativelysmall amount of information might reveal a juvenile’s identity.

85. See G.S. 14-230, which makes it a criminal offense for a public offi-cial to willfully omit, neglect, or refuse to discharge the duties of his or heroffice.

86. G.S. 7A-276.1.87. Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977).88. The Juvenile Code does not make violation of the prohibition

against disclosure a criminal offense, and it contains no penalty or sanctionfor the wrongful disclosure of information. There is some precedent for theproposition that violation of a statutory prohibition or mandate is a generalmisdemeanor when the statute specifies no penalty. See, e.g., State v. Parker,91 N.C. 650 (1884) (statute making it unlawful to sell liquor in specifiedlocalities); State v. Bloodworth, 94 N.C. 918 (1886) (statute requiringkeeping fence five feet high around cultivated field during crop season);State v. Bishop, 228 N.C. 371, 45 S.E.2d 858 (1947) (statute prohibitingrequiring membership in labor union as condition of employment). Thattheory has not been applied often, however, and reliance on it seems partic-ularly unlikely and unwise where the “offending” activity has claim to FirstAmendment protection.

89. Smith v. Daily Mail Publishing Co., 442 U.S. 97 (1979). 90. State v. Williams, 304 N.C. 394, 403, 284 S.E.2d 437, 444 (1981).

The supreme court referred to the trial court’s “delicate task” of balancingthe conflicting rights.

91. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981) (uphold-ing the trial court’s denial of defendant’s motion to restrain unnamed pub-lic officials and attorneys from commenting about the case to the newsmedia).

92. The media’s long-standing acknowledgment of the policy isreflected in “Guidelines for Reporting Juvenile Proceedings” developed inthe 1960s and 1970s by the News Media–Administration of JusticeCouncil in North Carolina. See The News Media and the Courts: AGuide for Journalists, 3d ed., 38–39 (Raleigh: North Carolina BarAssociation and School of Journalism, University of North Carolina atChapel Hill, undated). (The introduction to the third edition indicates thatthe second edition was published in 1972.)

In these guidelines the bar and the media, among other things,

• recognized that they, along with court officials, were responsible for

developing sound public interest in and understanding of juvenile

problems in the community;

• stated that neither public officials concerned with juvenile matters

nor court officials should comment for publication on juvenile cases

in which they are or may be involved;

• stated that “because immaturity and dependency are underlying

bases in law and reality for regarding children individually as less

accountable than adults for their behavior and condition,” the news

media in deciding what to publish should give due consideration to

(1) court officials’ recommendations and (2) whether the public

must have the information to be fully aware of its juvenile court and

the delinquency situation; and

• stated that the guidelines were not intended to constrain the media’s

publication of news about juvenile offender, when the information

was obtained from sources other than court officials who are

involved in the case.

93. Mark J. Prak & Coe W. Ramsey, Access to the Judicial Process, inNorth Carolina Media Law Handbook, 5 (Cathy Packer, Hugh Stevens& C. Amanda Martin eds., Chapel Hill: North Carolina Press Foundationand School of Journalism and Mass Communication, University of NorthCarolina at Chapel Hill, 2001).

94. G.S. 143B-543.95. G.S. 143B-543 and –544.96. See G.S. 143B-544 for a complete list of the kind of representatives

each council should include. 97. See G.S. 143B-543 through -550.98. In re T.R., 52 Ohio St.3d 6, 16–17, 556 N.E.2d 439, 450 (1990).

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About the Author

A member of the School of Government faculty, Janet Mason specializes in social services and juvenile law. She is theauthor of Reporting Child Abuse and Neglect in North Carolina and North Carolina Marriage Laws and Procedures.

Other School of Government Publications

Reporting Child Abuse and Neglect in North CarolinaSecond edition, 2003, and SupplementJanet Mason

Provides a comprehensive explanation of the North Carolina law requiring all citizens to report cases of suspected childabuse, neglect, and dependency. Also describes the state’s child protective services system. A useful reference for medicalprofessionals, law enforcement officials, reporters, childcare providers, social workers, teachers, counselors, principals, andother school personnel, it may also be helpful as a training aid.

This book and its 2003 supplement are available online at ncinfo.iog.unc.edu/pubs/electronicversions/rca/rca.htm.

North Carolina Juvenile Code and Related Statutes Annotated: 2000 edition and 2001 Supplement, with CD-ROM and 2002 insertPublished by LexisNexisCompiled by Janet Mason

A new edition, projected for publication in 2005, is in preparation.

Annotated compilation of North Carolina’s Juvenile Code and other selected statutes relating to children. A supplement andaccompanying CD-ROM include all changes enacted in the General Assembly’s 2001 session. Includes laws and proceduresthat apply to young people who are delinquent or who engage in undisciplined conduct (such as running away from home,being truant, or being beyond a parent’s control). Also includes the mandatory reporting law and other laws relating to childabuse, neglect, and dependency and termination of parental rights. Related statutes included in this volume deal with juve-nile justice agencies, local confinement facilities, adoptions, schools, and the medical treatment of minors. Contains an index.

North Carolina Child Support Statutes2002Compiled by John L. Saxon

Includes statutory provisions governing civil and criminal actions for child support, establishment of paternity, interstatechild support enforcement, the child support enforcement program, and other laws related to the establishment, modifica-tion, and enforcement of child support orders. Available online at www.iog.unc.edu/pubs/electronicversions/pdfs/childsupport.pdf.

The following issues of Social Services Law Bulletin by John Saxon comprise the series “Confidentiality and SocialServices”:

No. 30. (Part I): What Is Confidentiality?February 2001

No. 31. (Part II): Where Do Confidentiality Rules Come From?May 2001

No. 35. (Part III): A Process for Analyzing Issues Involving ConfidentialityApril 2002

No. 37. (Part IV): An Annotated Index of Federal and State Confidentiality LawsOctober 2002

No. 38. (Part V): The HIPAA Privacy Rule & County Social Services DepartmentsAugust 2003

The above articles are available online at https://iogpubs.iog.unc.edu/iog.asp?page=electronic. Simply scroll down to the link for Social Services Law Bulletin.

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ISBN 1-56011-439-8