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“[T]he waiver hearing is a critically important event with serious, lasting consequences for a juvenile”

State in the Interest of N.H.,
226 N.J. 242, 255 (2016)


Among the offenses that are subject to juvenile delinquency proceedings, particularly serious offenses are eligible for waiver when there is probable cause to believe they were committed by a juvenile at least fifteen years of age. N.J.S.A. 2A:4A-26.1. These offenses are listed in N.J.S.A. 2A:4A-26.1(c)(2) and include murder, armed robbery, carjacking, sexual assault, kidnapping, and possession of a firearm with the intent to use it against another person, among other serious offenses. Proof of both of the conditions noted above is required for waiver: there being probable cause that a juvenile committed at least one of the listed offenses and he or she being at least fifteen years of age when allegedly having done so.

“Waiver” is a reference to “waiver of jurisdiction,” which means that instead of the family court maintaining exclusive control (jurisdiction) over a case, upon waiver an adult criminal court judge will instead preside. Cases involving offenses eligible for waiver proceed like normal juvenile delinquency cases until, within sixty days after receipt of a complaint, a prosecutor files a motion for waiver. See N.J.S.A. 2A:4A-26.1(a)(1); R. 5:22-2(a). Prosecutors do not always file such motions when permitted by law, but typically do so because it affords them leverage to resolve a case or because they think justice requires it.

Some say that “waiver to the adult court is the single most serious act that the juvenile court can perform . . . because once waiver of jurisdiction occurs, the child loses all the protective and rehabilitative possibilities available to the Family Part.” State v. R.G.D., 108 N.J. 1, 4-5 (1987). The child will also become subject to adult penalties. Because this stage is so critical, the Supreme Court of New Jersey has ruled that the State must provide “full discovery prior to the waiver hearing”—in other words, that the State must disclose “all discovery in its possession soon after it seeks to waive jurisdiction in a juvenile matter.” State in the Interest of N.H., 226 N.J. 242, 255, 257 (2016).

After exchange of discovery, the court will set a hearing at which the State must “provide proof to satisfy the requirements” for waiver. N.J.S.A. 2A:4A-26.1(b); R. 5:22-2(b). This proof typically consists in (i) presenting the juvenile’s birth certificate to the court; and (ii) presenting the testimony of one or more witnesses who have knowledge of the putative probable cause for the waivable offense(s). Notably, at this stage, a juvenile is not entitled to all protections of the rules of evidence, such as the general prohibition of hearsay. See State v. J.M., 866 A.2d 178, 187 (N.J. 2005); State in the Interest of B.G., 589 A.2d 637, 640 (N.J. Super. App. Div. 1991). Effective preparation “for all facets of the hearing,” including deciding “how best to cross-examine the State’s witnesses, whether the juvenile or others should testify, and how to assess and challenge the prosecutor’s exercise of discretion,” is crucial. N.H., 226 N.J. at 256.

The prosecutor’s decision to move for waiver is reviewed for “abuse of discretion.” State in re V.A., 212 N.J. 1, 9–10 (2012). Abuse of discretion generally means “relying on an impermissible basis [or] irrelevant or inappropriate factors;” “failing to consider all relevant factors,” or “making a clear error in judgment.” See State v. S.N., 231 N.J. 497, 500 (2018); State in the Interest of J.F. , 446 N.J. Super. 39, 51-52 (App. Div. 2016). Because abuse of discretion is defined in terms of “factors,” the factors outlined in the waiver statute control the analysis. See N.J.S.A. 2A:4A-26.1(c)(3). In 2020, in a notable case, an appellate court overturned a prosecutor’s abuse of discretion in seeking waiver. See State in the Interest of Z.S., 464 N.J. Super. 507, 548 (App. Div. 2020). Earlier this year, in State ex rel. A.W., an appellate court again addressed the process of waiver and found that the “written statement of reasons submitted by the prosecutor was flawed” but also that “the Family Part Judge appears to have substituted her own judgment for that of the prosecutor” in weighing those reasons—both of which, the court found, were problems.

Short of showing (i) that the juvenile was not at least fifteen years of age; (ii) that there is not probable cause to believe he or she committed at least one of the waivable offenses; or (iii) that the prosecutor abused his discretion in seeking waiver, it is usually procedurally impossible to avoid waiver unless a case is resolved with a plea deal. (Pleading is discussed on its own tab below.) Potential procedural challenges post-waiver may include raising effective assistance of counsel claims or arguing that one was denied an adequate hearing or “statement of reasons for the court’s decision.” See N.H., 226 N.J. at 253.

The possibility of waiver is frightening; and, although it is permitted in most States in at least some form, some have denounced it as cruel. See, e.g., Charging Youths As Adults Can Be A ‘Cruel Wake-Up Call.’ Is There Another Way?, NPR (Aug. 15, 2017). As a general matter, however, cases waived represent a tiny fraction of all juvenile delinquency cases—approximately 1% across the country. See Juvenile Court Statistics (2019), National Center for Juvenile Justice at 40.

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