discussing constitutional sources of the right
How later courts described this case
- discussing constitutional sources of the right
Written by the judges who cited it.
The opinion
O’CONNELL, J.,
dissenting.
However we may wish to describe that part of the procedure in juvenile cases which calls for the parens patriae approach in the relationship between judge and child it would seem undebatable that the inquiry as to Whether the child committed an act deemed criminal when committed by an adult has no relationship to the *226 judge’s function of ministering to the best interests of the child.
It is made eminently clear in In re Gault, 387 US 1 , 87 S Ct 1428 , 18 L Ed2d 527 (1967) that procedure designed to determine whether a child will be incarcerated is essentially criminal procedure. Since the procedure is criminal in nature there is as much reason to require the proof beyond a reasonable doubt in determining the guilt of a child as there is in determining the guilt of an adult.
Although the equal protection clause of the Fourteenth Amendment does not require an across-the-board similarity of criminal procedure for adults and children, that clause does require the child to have the same protection as an adult where the character of the procedure has no relationship to the ends that are served by dealing with a child in accordance with the parens patriae concept. When a child is charged with the commission of an act which is a crime if committed by an adult, the question of whether the child committed the act must be resolved by the trier of fact before the trial judge takes over and attempts to apply the theories of juvenile rehabilitation. It seems to me that this preliminary question of guilt should be determined by the same test whether the accused is an adult or a child.
The theory of the majority opinion is that the trier of fact should be permitted to more readily find the child committed the “offense” charged (we are admonished not to use the term “crime” here) so that he can be retained in court and thus be available for treatment in accordance with the theories of rehabilitation employed by juvenile courts, and if necessary be incarcerated. Since the relaxation of the burden of proof *227 subjects the child to the risk of incarceration it becomes an integral part of a criminal procedure which, according to the reasoning of Gault , must operate to protect the child to the same extent as it would an adult.
I am also of the opinion that the defendant in this case was entitled to a jury trial for the reasons stated in my dissenting opinion in State v. Turner, 253 Or 235 , 453 P2d 910 , decided this day.