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Do Sixteen and Seventeen Year Old Criminal Defendants in Vermont Need a Guardian Ad Litem?

NCJ Number
Vermont Law Review Volume: 5 Dated: (Fall 1980) Pages: 361-382
A Bower
Date Published
22 pages
The use of a mandatory guardian ad litem for 16 and 17 year-old criminal defendants in Vermont is critically reviewed.
While those under 16 years of age are tried in juvenile proceeding in Vermont, the 16 or 17 year-old is tried in a criminal proceeding similar to that of an adult, with the single exception that a guardian ad litem must be appointed for the defendant. A guardian ad litem is appointed by the court to protect the interests of a minor during judicial proceedings. The guardian ad litem is expected to provide nonlegal advice, make sure the minor understands the consequences of a decision, and protect the minor from impulsive and thoughtless action. It is not intended that the guardian ad litem should make decisions for the minor nor directly or indirectly determine the course of the defense. Further, the person selected should not have an interest conflicting with the interests of the minor. These limitations on the role of the guardian ad litem have not always been followed in Vermont cases. The presumption on which the requirement of a guardian ad litem rests -- that all minors are incapable of reasoned decisionmaking -- is subject to question. The mandatory requirement prevents an assessment of the needs of particular defendants. Further, the absence of clear guidelines for the functions of the guardian ad litem has created unanticipated problems. The existence of the requirement has discouraged consideration of more suitable methods for protecting the rights and interests of minors. It should be possible to develop a system of protection which is sensitive to the needs of individual minors, allows the trial judge flexibility to choose between alternative methods of protection, and does not limit or burden those minors capable of making decisions and standing trial as adults. A total of 120 footnotes are provided.