Amicus Curiae Brief — DeBacker v. Brainard

Supreme Court brief1969

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“" wens | VINeO ee one vel Ud

kigkED

ee ops i 14 1969

: In the

JOHN F. Dav, CLERK-

Supreme Court of the United States

OcToBER ese. 1968

\ 15 “

CLarencr DeBacker,

: \ to Appellant,

ry, cee,

Homer Brainarn, Sheriff of Dodge County, Nebraska,

- | Appellve.

Appeal to the Supreme Court of Nebraska

Brief for the People of the State of California, ee

Amicus Curiae

in Support of Appellee

Tuomas C, LYxcu

Attorney General of the State

of California’,

Aubert W. Harris, Jr.

Assistant Attorney General

~--———.

Diratp IK, GRanpera

Deputy Attorney General

"se

‘Gvuornia EF. DeHarr

HOOO State Building "

San Franciseo, California 94 lo

Tel. 557-0799 ;

Attorneys for the Peoply of

the State of California

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94108

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. TOPICAL INDEN a ee

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iyrest of Atiieus Curiae, . |

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mina Argument . tas ms !

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MATL : as : ;

V le wishative Heoision, that a puialge rather than a yt ‘ sival? te ae

the thader of taet isnt that. the Hllegatiies wins. be prarvent

DY a prepeindoratioe-ot Tie d letiee inn juvenile prmeeedhe ”

ie, Whether on tael the wel jou ‘ali ty cone ertiot w ith eons

duet whieh 4 stints s Uwe © rininal fiw chee thet sbeniae thes

Juve ile © thes a Prowens ay sayual piativ tant : x

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SN dewensile cout: peosabdinns wre neither Certtnad. to

“eel baat ane batehegtne HVortees binges hint White b thi leatis .

“ chats ee thee prow ehires Mp propiuaje’ to. the

qeeeial problenis my ebeod ” ,

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i Nouthe t tial obey. pune ae te bn vod ove aeeotia tit

* heubet ts wurst itationably reqguited as exwntial to due’

_° _ Wiens’ ih 4irwenils cane! ‘ Cee eee

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-. TABLE OF AUTIIORITIES CLrED

_ ("vst eke! Vuges .

Berman) Parker, HHS-08 ou, 0 (1004). - ly

Bloom + Winer, dbs Pb COR Gs) . t, 23

Corona ealel \. dobitesctn o5t Pa ; Sipe r 62. °% ‘tN aT 1

CO ; oc p Ta Le |

DeBacker ‘ Brainard. Ist Neb hit it NW Sab ts 7 he

Te) aN

uf), 24

Deven \ > Commonwealth bio SWOAT O57. aan ee Bs

o ’ 7

7 1) 0) be

Dine s bootisiane MHAIS Te Ps 1, Ob, 20, at

. . . | , Pe *

Estate of Neloon, Hl Cal Usah Yag ‘lay has een we

Listes 4 Saperiort Cont, HS Ped YO Wash IMs ie: . 9

brine’ Marler: 14 (ite Ape Sal ‘ho Lda | : ° ap I"

IM re (astro, JEF Cal App tO dom oy ee alWypte tan:

dee)” : a aes ee

Pre PMevis, 24 Cat App od Ho OSE OD Col pte Zoe Wien,

fi ve Denaie Me TONG both oh aT al Neptt Ls tu

Ped 20° fit | 1 ar we 7,96, 16,19, 26; 40

bi ve Mh belies é Mal Vip ; ‘ys A tT | ed vias : a

Pere Ciasilt’ os : | mm. 0, O° cole, TUK 77 } at Ie May’ co. 8, Hh Tf

Ne 12,15, 16, 07, 10 vO eo vo og os on

27, 28, 20 A082 0 a sd an”

I te Johnson 27 Cal Veep 7 a) ds ata Wepte Whe Pa ~H

bie te dete Oe i ih Nyy ‘1 ‘yh wat, 344 Gt (al De yets it

in, ose ‘ ot . bs

Iho Raner, 50 Carat ats ast op WL GUN, WO Cater Adg

90) sels a a’ >

‘tn te | rho “ h te 1) “oed ‘y \ | a | Paty lite, , 2 “ a to

bin W bed tt trier tony 1th Vig "1 if hit,

Ps e ’ ’

bin \\ tgs SAE AMAL» i othe Man Ay biti, ” > ae

- ; * .

ber ites Matte: ay Madi! We Nu hts \\ Mi: bien i ‘

ent y United States “1 TN 601, AAS, AMOKOT. ATT. Age

1's ‘ * 3 i ‘ , * ” tis 11 a is i?

byl, ir! ' \ wil ‘ ' iin ime | A ’ | I. Ean i ' 4 ‘

he a Ith, ° it sa

; 5 a r’ . z é

. ‘4 “ . - .

TABLE OF AG THonrriE Cre

: ; : se a Ia

Leland \ Grewon Ga ES 7o0) Ge 4 ha ee TS Ce Toor

(2A) °

lawkhowl Atreratt ‘Corp vy Sup Cr os eal dd ast isaort

POST TG ALR TOE ide) ; : 7

ALD

. F ;

Minn v Probate Court a00 US o7e: Tain

r x + . : F . a be , \ ‘ *

Nu vos.) United States, Uso } Supp 4Md om geN Y bs

Peapte M000 WSS Yar oc NN Vad Nup (tr tas

People y Amavd, dC od T0076 SOE Pod dee pene

Poople v- Thritherton, 240 Oy! Vip teh 15, COO ES Cat Repay

Mictminy 7 te : ee aoa

Poople v Cw atiangh 4b Cal mb SO, 2, Bae PAA WAAL -

Praapele 5. “Dra rapehieorty Maal Ad STi ene Le hee ee hs

Poaple v. Photwn. de Cal td sey Sey os Sia) haa

People vs darhann TONG PY PM Te Cal Rpyr feo: aan

es ee eT) : '

Pople iy Meaiilf gana al Apye Ab daa, te io | iy v1 pur

A Phbas- .

Povipele ‘ Meus uhtews iu (ial Apa Ad das ited hem Y eg |

Vides

Prag A Minors i") Ad fab tre il Wyn sim! hi ‘A mim)

Lihian J ; : fa - .

Poaple y \ alvetile Sb Cal Np tad tb ho ob Cal pie box

Pevton ys Nowl (8 NM OTET Wer Pod Tie toms 40

Manion» Mtate Pen Civ Ay fh OS WAS | Pods

Shunt j ‘ Ntaté ti A 4. it J i pitie Pitan ,

“et wil t . Alussaeha lta ahd | | ‘" ae dibs ‘% f ! ' hid

MANU AW OO ATR ATA dade

Mpoehet v- Uattepacsn int 1 sm 4h) bit,

Spetwr + Randall We Pe Ae Gon om te obech ate

PSF) OTT TS Oe PO pkey a : ;

Mate ai iy 4 biscdoes \. Luin “fe i . 1) it Tal 414)

; q 5 4

i | in a . ‘

*“. ‘ :

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lofted Mtates \ ‘(tas heed tobel bt eh “yi

’ ‘ . oy * i -

‘ 9 e Pr

od . eo °

iy | Paeie or Aurion Crrep

et SPapores aANp At Ticnirins

| ideal States Constitution my * J

- ‘Pourtes nth Aiiendnient

“Tall of Rights - . ; .

» State af Valtforpin

Heal Neheowsha Statutes :

mes ‘

Sha Ce Liged ‘ ath

’ ; , e ; : ‘

mien Naties amd “Pai en TT ie Volition ap Minapele

Meviston’ in thieadt Whe Now for thé daventh (ine

lied €' ni Liwal bal itis Py) thoy "ee “2 a

P , » " ; sd ;

“Verto "Sih fal ehrnds ' COUTTS heey cen Hiivenih int ion

Hart bat 20. 40.‘Part Tat o10-44 HOI P28 8628, ao

fieet Thi 5 diuvenih (ure (Jiient andl Realities Ii) Vash

bisa Ve pecent Jievenih Pre lingquenes ” aid Youth Grin

--—. 7 . =

Ling, | re ‘ an Vo

| ce ; : “9

7 . : ‘ ;

stdert «4 Orirnrbeeion on | WC Entoreoment ane Adminiitrs @

thes. ct Dapataes Pash Moree Mejpront Hravenih Detinngueney

aad VYaath Oring 9 i ie Ho dle dh a 1m, 20,2 '

neler for Paeeneh Sard ! manly. Cvuets a Dreqt ‘vy

foiliien " a Wiellnre ¢ hilddeow + Ware i 4's)! Nob

i bine F ; * 1

—"lies : ; ,

Var fis ides Whed TOs any ‘a

a 4

.. e . ° > .

a -

Statiites Pb eh Wo ye tase

Stattites HOT eh MOT, baer 4 hon

Weltary atid lristitutiotin Cude

SSMU HOO GO GO Roda oh

athe Mu, «ty ‘2a,

“TP TSO TO Pays

AWK) Pt,

i nal ‘ onl Re : ; ?

Sha,

‘Ol FOP Jot Fos

Tt, V7 head) a0 rie PE, lip <

2, 038, 14, 90. Be 95. 447

Pages

—

Tanie or Avruonties Crrep | v

Pages

Antien, Congtitutional Rights in Juvenile Courts, 46 Cornell

LQ. 387, JO9400 (1961) coberioctcns a OCOD:

~ duventl: Justice in California, a Re evaluation, 10

Hast P47, 92-98 102 | 1967) ze a9

Comment, In-re Gault and the Persisting Questions of Pro

eodural Due Process anid Legal KEthies in Juvenile Court’

(168) 47 Neb. Loew. 558. 570-580 | 180s ) ~~ ae

Comment, The Juvenile Court Revolution in Washington, 44 .

Wash | Rev 4u1 ASL clogs . =f 24

Dorsen amd Reeneek. In pe Ciault and the Future of Juvenile

o law, | Fam LQ 1-22-88, 86-27 (1967) 1, 3s

Cardner, Gault and California, 1 Past. bo aE Oa ae #4

Ketcham, Guidelines from (Gault. Revolutionary Require

hents and Reappraisal, Va bo Rev 100 ITER Mies Au

Vatilwen bPatrness te the Hrrvenibe CMerdes 1) Misi @ifa

O47, DOO, HAL WMH) th 3s. 40

Mailsen Went y ited States” The t onstituttonal ( ‘omtest of

Juvenile Cases, 1966 Supreme Court Review 17 tse psa

ian , ie ea |

*Weleh, Kong v- United States and Inn Faull, Two Decisions

Wn Seareh of on Vhieors 1), Phastinges 7 eee Wi

Wid Om en eT

| In the ; 3

Supreme Court of the United States

Octroper Phi, bos

No. 662.

Chatexce DeBacken:

VA.-

Hlovtin Uist N atin, Sher of Dodo Counts Neltask

eee

Appeal to the Supreme Court of Nebraska

Brief for the People of (he State ot California.

‘Amicus Curiae

in Support of Appellee

INTEREST OF Amicus CURIAE

Phi, thitede tail this Pop ol thy tiate? |

Whe ool Cali

War Cot Cheer Chere (pile tiatin pars i i it 4 hay Picchivey

Statement ind thy ii ee VP heann4 Witte bevel

Perblcay

| Whether prays hal hrisha ot hile ¢

“Nat hens tisad ft jut bth pub eedends i} | avy

WHHleTE Walildd tee teindbde | Welty - atenn i} }

vehinlt Vyevboat piavacneel - MINH Agnonedsuiea

light of “thin ¢ nal lt i ' (iiiti

| 1 LCUiMig pcg i) |

POS dD) and / "| hai ad

‘

e . ian . -.

2 "Whether, in lisht of Chrull, statute prov idtins

tant pant hay Proponcde rates Lit elit denes phoooddine:

beawod S Uiiseonduet whieh avould bo felowy a chiavtavd

CUUTEN, bs valid uate Mourtoonth \iaenidineat.

2 aie.

Mestion whied tolates to the constitutionality ot Hh pre

‘eoddine of the Nolirasha statute: bas Which the prokeouten tae

Ihe sole iseretion as te Whether dee wall PmHoood tee pened

POHTE Or Hi eritaiial court Under Catilornti Haw the jiubin

Atietion af thi Mis ortile Cowie Veliisive bor obivlbpen canbes

1G (Calif, Wolf & Inet. ¢ mle SPOOR a: TOP): is taitindh

evelinave have ehildien hatwoens ih and rs, with PVATinte 7

the Ch AP eouel: ive thee dine retton al fh Ltt pon vane

ti Ratutory procedures iA lat Well \ bins! Cock Sel .*.

(OC) anh it is eonmenerent hint Te betwen be sane it

- (Call. Well & last Code + AME t by Tne thy titties

cise, althoush this + veeeeely peeoobuations Safle ' av ali Ith a

Tisttye yma lias iteetieal ih Pindy " in cleatinyy the A ee

mit Hehehe te ttboateon ss tlhe ty prerte ibility va idee pense

eeeee pia less cee Oh ebiteripad on yr Tie A oali Wiad A iT {

Pad .

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‘ rede tb deg, itty : ; ‘ ; ies!

. A f

a\¥ shi, ai rs Hever 2 tide Lametind tbo tent itt air yt

TMWih apttemtieetee “Sinaehie to thy Nehrael ' Tet yates et rie

volved, thy California Savile Coa haw’ a teed guy

Vite FOr a pes tetal, ane with con Hite tenis feist

Voebtiteha Stati praviak Hat pb petnderan mo

UViddenee aittet bie acho te Oper om Otedifie thar thy

+ . le

. . 6c

eidicee i bo peatecee weeblates Ube pans bie Chiat Po the Viavonal

(octet

1 «we Ww , | hvu o HINGE) Mi

tivde §§ tino | y :

woe . om

‘ fens

he ¢

The -Reaple of California have ie Hiterest in the hind

che bere enerns We Peetl lie)

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pote chee rtteesh bes

California Waobe ary ‘as

. pet wey rh

}

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niiel hay eh etuel

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teat

histes & icate a? 7

Institutions Code Section 701

tis weiey tTeuset first

. .

a person under 21) is a

ome fH Ol or 602 of the Welfare

aes

pet a? matter oronformation relevant

% ry vInetanes es or nets whieh aire

; sothin the jurisdiction of the

priya srtale amd may bie recernved in

fF o8 preponderance of the evidence,

t “trinl of-ermminal crises, must

‘a finding that the minor is a

hom nO, und mn preponderatics

sobheon the trial of eivil enses

porto finding that the minor

vbw . sections GOO or GOL?"..

jks Cone thatetheniner eames withm

iivets a dispositional hearing

/iM, The eourt las Verieis

i 1% ghee

iso . ;

Wo ties te qurisdietion. See Calif

" »>~# ed) | —

’ i F poh cael

some of whieh are ce

‘

ad ’

“Tees @omine within seetion

fy HD et fare hey procediu pes !

lin teach fabet. ae committment te

Wolf! & Inst. Code-88° 7390.

over coblbtenationad train

bated asf the evnpaet pe one Whe

" P opein ernye cat cotter wha i

5 es ’ ,

vt it? lifts aro ow beeaoae levstane

: titme ast als fhevegnes mn lye

9! fee cede Wiss h

. ti Fey bortigy | 'reppeit ay it)

tot thet

1hts

‘

| raly © sererl peat wei?

4 &

& Mott we Cotte cnpadey vityeled

onduet a hearing’ to |

. Sule

a 4 .

ing and treatment institutions maintained as correctional .

schools, See Welf. & Inst. Code § 1000, The court may also

utilize the resources of the De ‘partinentof Mental Hy sie me,

the Youth Authority, and publie or private agencies or

doctors for diagnostic medical, or psychiatric ser ees,

treatment) or recommendations. See @alif. Well. & Inst.

“Code gs 008, (04, 705, 739, 740, 741. In ANY case, the veo

mitine ntoor disposition made by the Juvenile court may be

reviewed and modified at any time, See Well. & Inst Code

~— >»

88729, 775-770, |

The California Juvenile Court baw tstabilishes ca edi

pre hensive and earefulls planned ‘system For the orghi vilita

Hon, treatment, and when neew SSary, for. the incaree ry ation

of minors hound to need such care after earefak and eom

plete adjudicators and disposition: ul hearings. We believe

Ahatt the standagds of proof established h) the levishiture

anc the provision for hearing by; boyuve nile cornet jidue.

rather than a oyury Tully protect the ehilds reht te die

pracess iy sel; procee Pings , a

We appren hefare this Court as amicus enriac te Uphold

the validity of lewishitive standards established aes part cal

“COMP Pet Naive proceeding: J Whieh are om ther, eviminmal great

emit, dat i generis, destoied to deal. with the problems ad

Jventhe detinquenes, pote nts al ck Hrgenes and megheett an

nr atiogir ili reiel I) un ne Peeserpyye)

$5 SUMMARY OF ARGUMENT

Hteis establys hed by statute. on California H- iN beret,

thivet Time iae tit proce dony . the jitelgees, viathy rte a yuna,

is $le trpep ad fret. and the allegations an Whoehy jury tletion

iv bin ead veemny dae prrany onl by ih opere jrevnnede Pibdpes PY Phase ey pele 1

HW 4; Phi pron tivo ant this Prrsvprls Ot the Ntate of ¢ obliterans

Vhavt theo | Thad colectienn ool cdage Pip ererees “any epinal prrertecefpenny

”

. .

in this state ‘legi slative determination, Whether or wot the

proceedings are concerned with conduct w hic hi iS proscribed .

by the eriminal lay. :

“Juvenile proceedings: should nat be rigidly classified as

either civil or criminal in nature: they are unique proceed

ings designed

the legislaturf may preseribe appropriate pfocedures. In

Avent 7 mo) nile

3s7 U.S. 1 (1

ile ae as “evil” could not justify: Procedure whieh

o deal with complex proble ” if for whieh

States, 388 US. 541 (1966), and Inve Gault,

i), this Court held that & lassification of juven

did) not afford dtie process, Although appellant asserts that

Craulé held juvenile proceedings to be Yerinsial.’ ‘requiring

the Application ofall the | rocedurescof aeripanal trial, this

Court was careful to adhere. to the view expressed in Avent

‘that a juvenile, searing need not conform with all the pro

eodures of aceriminal trial We are In aeeord with this

6 eure s flexible ap }rone ‘If, and Urice that it makes little sense

te turn the re jection of a eteil label ite n tanedate te HN pase

rigid erimninal: procedures on proceedings Whieh remain

Hhon-eriminmad on eoneept ind Punetion, :

Huvenite procecdings are a MQue Fespanse toa probleny

Which, whihe similar in sottie aspeets to the problems of thi

eriminal lawsinvelves arens of Solely juvenile eoneern Any

die process thears in this feta rast take aceount to the

anhitiitive differences gf juvenile law. Suelo an Wy) ritans vele by

this Conv and the adoption of standards Whiel miake the

qualitatice diftere ee SEH Ve. Wotld provide. ineen

Hive Tor mere fumetionnally Valid juvenyte law,

California. like Nebraska. tras established 9 eomeprelion

Stee STATEORY selene for dealing with iN emide pireobibenny

Vie teens mTTREL Yt; maetiives ceb (dyes prreveeed pny Ps 4a

: embls Qited his lieth becgeatbaatupys none eevtipts | thedey this law.

thie Darvecnale 4 overt pidge dans mh Wack hrangres qvt dy prerseteennal

. * - > ” » :

Alternatives te See ye the lyristatice proval af reholilitatyan

- In California, one of these alternatives is commitment to

the Youth Authority, an administrative agency with juris-

dictionover training institutions maintained as correctional

schools. The Youth Authority may parole or discharge the

minor beforé majority, and the’ committing court may re-

view and modify the commitment at any time. Any such

commitment is based not on the conduct found but on full

review of background and problems. Such proceedings have

somg apparent similarity to proceedings for narcotics and -

other “civil” commitments in which this Court has not re-

quired all the procedures of a criminal trial. .

While the character of juvenile proceedings does not

justify: fundamental unfairness, it does justify judicial def,

erence to legislative judgment. The legislatively established

procedures at issue here do not violate due process.

Neither trial by jury nor proof beyond a reasonable:

doubt is constitutionally required as essential to due process

in a juvenile case. In California, the procedures at issue .

were established after extensive conscientious review and” |

ev — Reasoned analysis supports the legislativ e ee

Both the Governor's Special Study Commission in Cali-

fornia, and the President’s Task Force on Juvenile Delin-

quency have observed that it is a generally held view that

jury trial is incompatible with the objectives of the j juvenile .

| law. ‘There is much to support the jadgment that trial by

jury is not crucial. to a system of juvenile justice. While

courts and commentators are in some disagreement, the

better reasoned opinions, in our view, follow this judgment.

“The institution of jury trial in juvenile court, while not

materially contributing to-the fact-finding function of the

court, would seriously limit’ the court’s ability to funce-

“tion. .. .” Commonwealth v. Johnson, 211 Pa. Super. 62, 234:

A.2d 9, 17 (1967).

: 7

‘Appellant’s argument that Duncan v. Louisiana, 391 U.S.

145 (1968) and Bloom v. Illinois, 391 U.S. 194 (1968) have

foreclosed further inquiry is both simplistic and circular.

Moreover, it fails to take into account that rigid application

of Duncan and Bloom does not fit the realities of the juven-

ile court system where incarceration may be possible for

conduct not giving rise to a right, to jury trial for adults or

for conduct which does not involve crime at all and for —

which juries would be entirely inappropriate.

Finally his argument overlooks the problem of waiver.

To apply the criminal standard is to force on a number of

‘children incapable of waiving a “benefit” which is usually

Tejected when offered. To permit another standard of

waiver is to recognize that the difference in the proceedings

justifies deviance from the criminal model.

‘The Governor’s Special Commission in California also

recommended and the legislature adopted the preponder-

ance of the evidence test 4s the standard of proof in juvenile

‘eases. The commission found no valid reason for requiring .

the degree of proof customary in criminal cases, believing

that the standard of preponderance of the evidence suffi- —

ciently safeguarded the rights of the minor. The California

‘Supreme Court recently considered this requirement in the

light of this Court’s decision in Jn re Gault, and found no

denial of due process. We call to the attention of this Court

‘this carefully considered and perceptive opinion. In re Den-

nis M., 70 A.C. 460, 75 Cal.Rptr. 1, 450 P.2d 296 (1969).

While reasonable men may differ as to the appropriate

standard, we urge this Court to defer to the legislative

judgments of the several states and permit re-evaluation

and evolution to continue in this area without unnecessary

constitutional rigidity.

8 |

In a juvenile case, the risk of failing to act may be

greater than the risk of acting too quickly. We submit that

it is no violation of due process to defer to the legislative

judgment as to which risk is greater.

ARGUMENT

A LEGISLATIVE DECISION THAT A JUDGE RATHER THAN

A JURY SHALL BE THE FINDER OF FACT AND THAT THE

ALLEGATIONS MAY BE PROVED BY A PREPONDERANCE

OF THE EVIDENCE IN A JUVENILE PROCEEDING, WHETHER

OR NOT THE ADJUDICATION IS CONCERNED WITH CON.

DUCT WHICH VIOLATES THE CRIMINAL LAW, DOES NOT

DENY THE JUVENILE EITHER DUE PROCESS OR EQUAL

PROTECTION.

A. Juvenile Court proceedings are neither. “criminal” nor "civil"

but are. unique proceedings for which the legislature may —

prescribe procedures ee to the eae problems

involved.

Appellant argues that this Coult 3 in In re Gault, 387

U.S. 1 (1967); made it clear that “a juvenile delinquency

proceeding leading to incarceration is a criminal case.” |

(Appellant’s Brief at 14.) Thus, the argument continues, .

all of the procedures of a criminal trial must be followed |

in juvenile court proceedings. We disagree.

In Kent v, United States, 383 U.S. 541 (1966), and In

re Gault, supra, this Court. established the principle that

a juvenile, no less than an. adult, is entitled to due process

_ in any proceeding which may result in-the denial of sub-

stantial benefits or in his. incarceration for a significant

period of time. In Kent, interpreting the District of Colum-

bia Juvenile Court Act “in the context of constitutional

principles,” this Court held that the exercise of the Juve-

nile Court’s discretion to waive its exclusive jurisdiction

was so “critically important” to the minor that he “was

entitled to a hearing, including access by his counsel to

the social records and probation or similar reports which

presumably are considered by the court, and to a statement

of reasons for the Juvenile Court’s decision.” Jd. at 577.

The reason this waiver of jurisdiction was so critically

important was because of the special rights: and immuni-

ties conferred on.the minor by statute:

“He ... is shielded from publicity. He may be con-

fined, but with rare exceptions he may not be jailed

along with adults. He may be detained, but only until

‘he is 21 years of age. The Court is ‘admonished by the

statute to give preference to retaining the child in

the custody of his parents ‘unless his welfare and the

safety and protection of the public cannot be ade-

quately safeguarded without . . . removal.’ The child

is protected against consequences of adult conviction

such as the loss of civil rights, the use of adjudication

against him in subsequent proceedings, and disquali-

fication for public employment.” I d. at 556-57.

Although hesing its decision on the benefits conferréd,

the court in Kent expressed some misgivings about the

actual performance of Juvenile Courts, and raised doubts

‘as to whether this performance “measured well enough

_ against theoretical purpose to make tolerable the immu- .

nity of the process from the reach of constitutional gyar-

anties available to adults.” Jd. at 555.

In Gault, this Court reached some of the questions raised

_ but not answered in Kent, and-held. generally that proce-.

dural due process could not be denied a juvenile merely by

classifying juvenile céurt proceedings as “civil” in nature.

This Court went on. to hold that certain procedural pro-

tections were essential requirements of due process in an

adjudication hearing which could result in the incarcera-

tion of the juvenile: Notice, right to counsel, right to con-

front witnesses, and right sar compelled self-incrimi-

nation.

The doubt expressed in Kent as to the performance of

the juvenile court system was expressed in stronger terms

in Gault..Where the emphasis in Kent was on the benefits — |

of the juvenile court system which were taken from the

child without “due process,” the emphasis in Gapdt appeared

to shift to the deficiencies of the juvenile Be system.

“The essential difference between Gerald’s case and a nor-

mal criminal case is that safeguards ‘available to adults

were discarded in Gerald’s case.” Id. at 29. Even so, this

Court reiterated the view put forth in K i supra at 562,

that all the requirements of a criminal trigl are not included

in the due process required for juvenile proceedings:

“*We do not mean... to indicate that the hearing

to be held must conform with all of the requirements

of a criminal trial or even of the usual administra-

tive hearing; but we do hold that the hearing must

measure up to the essentials of due process and fair

treatment.’ ” In re Gault, supra at 30.

Thus, contrary to appellant’s assertion, Gault and Kezit

held not that all criminal procedure is applicable to juvenile.

court proceedings but rather that due process requires a

fair adjudication procedure and that this requirement can- |

not be evaded by a label. We are fully in accord with this

flexible apprenn; even the basic non-criminal character

3. . The apparent shift in emphasis may perhaps be explained by

the fact that Gerald Gault was “incarcerated” in a state ‘ ‘industrial

school” for the remaining five years of his minority, while the adult

criminal would have been fined up to $50 or. imprisoned i in jail for |

up to two months. Morris Kent, on the other hand, was sentenced

in regular criminal proceedings (with the full panoply of due

" process protection ) to from 30 to 90 years in prison. Had he been

treated as a juvenile, his “incarceration” would have terminated at

majority, again a period of five years. For a perceptive discussion

of the basically inconsistent approach of these cases, see Welch,

Kent v. United States and In re Gault: Two Decisions in Search

of a Theory, 19 Hastings L. J. 29 (1967).

= | : |

ee:

of juvenile proceedings does not justify arbitrariness or

a denial of fundamental fairness, At the same time, it makes

little: sense to turn this Court’s rejection of the “civil”

classification into a mandate to impose a criminal label,

and thus procedure, on proceedings which remain different

in function, essentially non-criminal in concept and ap-_

proach, and which are designed to deal with individuals.

who hake problems, potential, and a commitment from

society significantly different from adults.‘

Juvenile proceedings are a unique response to a prob-

lem which is exceedingly complex and, while related in

some aspects to the problems of the criminal law, covers

- areas of concern solely related to juveniles such as neglect,

truancy, and incorrigibility. It has bols pointed out. that

the question of the state’s concern for and jurisdiction

over children must be answered, not by the criminal law,

but by a due process theory that takes account of the

qualitative differences of juvenile law from both criminal

and civil proceedings.

“It is submitted that the Court’s decision in Gault has

left latitude for making such a distinctive constitu-

tional determination in a ‘truly noncriminal’ context.”

Welch, op. cit. supra Note 3, at 38.

“Tf criminal law procedure importation were to pro-

ceed apace from the Gault decision in total disregard

of any constitutional effect for the special rights and

immunities of juvenile law, as Justice Harlan predicts,

. it seems inevitable that ‘rigid procedural requirements

' may inadvertently ... [serve] to discourage ....

efforts to find more satisfactory solutions for the

problems of juvenile crime . . . and development of

4. The history and philosophy of the Juvenile Court system

were reviewed in*Gault and Kent. See also, The President’s Com-

-mission- on Law Enforcement and the Administration of Justice,

Task Force Report: Juvenile a. and Youth Crime 2-7

(1967).

12 "

the systems of juvenile courts.5 Were the Supreme

“= Court to adopt standards for the measurement of

juvenile court due process which make qualitative dif-

ferences in the effects of a delinquency determination

and special treatment essential ingredients, it would

insure a potent incentive for a more physically and |

functionally valid juvenile law system. As it is, the

pressure to be very different from the criminal sys-

tem as lessened proportionately to the degree of ‘essen- .

tial’ procedural identity between the two systems.”

Id. at 39.

California, like Nebraska, has established a statutory

system for dealing with the problems posed by juvenile

-erime, potential crime, various unique juvenile problems.

and neglect or need. The non-criminal nature of juvonile

court proceedings is unequivocally stated in section 503 of

the California Welfare and Institutions Code:

“An order adjudging a minor to be a ward of juve-

nile court shall not be deemed a conviction of crime

for any.purpose, nor shall a proceeding in the juve-

nile court be deemed a criminal proceeding.”

The California courts have consistently reiterated the view

that juvenile proceedings are not criminal in nature but

are proceedings in which the state seeks to relieve the

minor of criminal responsibility and give him direction and

rehabilitation. ‘See, e.g., People v. Dotson, 46 Cal.2d 891,

895, 299 P.2d 875 (1956); In re Castro, 243 Cal. -_ 2d

402, 406-07, 52 Cal.Rptr. 469 (1966).

Under the California Juvenile Court Law, the court has

a wide range of dispositional alternativ ‘es to- serve these

goals whether the child is neglected (§ 600), potentially —

delinquent ($ 601) or has committed acts which are adult

., crimes ($602). If the minor comes within section 602 of .

. 7 ;

5 . Footnote omitted ; quotation from In re Gault at 77.

‘ 13

the Welfare and Institutions Code or if he is within sec-

tion 601 and“fufther proceedings have been undertaken,

one of the alternatives available to the court is commitment

to the California Youth Authority. See Welf. & Inst. Code

§§ 730, 731, 777.6 The California Youth Authority is an

administrative agency with jurisdiction over educational

training and treatment institutions maintained as correc-

tional schools.

“The Authority shall have charge of the persons

committed or confined in each such imstitution, and —

shall provide for their care, supervision, education,

training, employment, discipline, and government. It

shall exercise its powers toward-the correction of their.

faults, the development of their character, and the

promotion of their welfare.” Calif. — & Inst. Code

§ 1004. «=

Commitment to the Youth Authority does not necessarily

mean “incarceration” until majority. The Youth Authority

may parole the minors under its charge, and may grant

“honorable discharge” or leave of absence. Calif. Welf. &

Inst. Code §§ 1176- 79. Where a minor proves to be so

incorrigible or so incapable of rehabilitation as to render

his retention detrimental, the minor may be returned to

court, where if over 16, he may be certified to the adult

criminal court for criminal trial with all constitutional

protections. Calif. Welf. & Inst. Code §§ 780, 707. While

_ commitment is a dispositional alternative, the court has

available all those dispositions available for both neglected

or potentially delinquent children, including probation with

6. In 1958, Youth. Authority commitments on initial petitions

: were made in 2.2% of Juvenile Court cases. Report of the Gover-

nor’s Commission pn Juvenile Justice, Part 2, at 19. We are in-

formed by the Bureau of Criminal Statistics that similar commit-

ments were made in about 1.3% ofthe cases in 1967, the most recent

year for which sich statistics are presently available.

Ti ET NAL ORES EE RE

7 14

_or without wardship, placement with #n individual or agency

for custody and care, or placement in a juvenile home, —

ranch or camp. Calif. Welf. & Inst. Code §§ 725-30. The

court also may order medical diagnostic or psychiatric

services utilizing both public and private facilities. Calif. —

Welf. & Inst. Code §§ 703, 704, 705, 739-41.

- Finally, the court may review and modify the commit-

ment or disposition at any time. Calif. Welf..& Inst. Code

§§ 729, 775-79. It should be noted that commitment to a

juvenile home or to the Youth Authority for placement in

a correctional school is not limited to cases where a “crime”

is charged as the basis for juvenile court jurisdiction, nor

is commitment to the Youth Authority required even if

jurisdiction is based on an act which would be a felony

if committed by an adult. The disposition of the child. is

based on a full review of his background and problems

including the specific behavior on which jurisdiction is

based. Disposition is not designed to punish the child for

this behavior; the proceedings of the juvenile court are

essentially remedial. Jn re Dennis M., 70 A.C. 460, 473,

75 Cal-Rptr. 1, 8, 450 P.2d 296, 303 (1969).

As pointed out by the Supreme Court of Californfa,

juvenile proceedings so characterized have some apparant

similarities to proceedings for the involuntary commitment

of mentally ill persons and narcotics addicts. In re Dennis

M., supra, at 473, n. 11. This Court, while demanding that

due process be accorded as a constitutional requirement ir

such special proceedings, has not required all the procedures

of a criminal trial even though loss of liberty is not just a

possibility but an inevitable result. See Specht v. Patterson,

386 U.S. 605 (1967); Minnesota v. Probate Court, 309 US.

' 270 (1940). Compare In re Raner, 59 Cal. 2d 635, 381 P. 2d

638, 30 Cal.Rptr. 814 (1963).

Appellant urges that a juvenile proceeding is a criminal

case because it is based on volitional conduct, as “distin-

guished from conduct which is the product of mental disease

or deficiency, or a status, such as dependency, alcoholism

or being the victim of disease or contagion.” (Appellant’s

Brief at 9). Appellant, we submit, has overlooked the entire

rationale of these special juvenile proceedings—the juvenile

is to be trained and rehabilitated, not punished. His behav-

ior is a product of his immaturity, and his delinquency may

be caused or aggravated by factors over which he has little

or no control. In short, he is not being punished for his

conduct; his conduct is symptomatic of a problem of growth

and development which may be,amenabla to treatment,

even where he must be inearcera(ed for the protection ‘of

himself or of society. .

“Tt is well settled that the Court must give the widest

deference to legislative judgments that concern the

character and urgency of the problems with which the

State is confronted. Legislatures are, as this Court has

often acknowledged, -the ‘main guardian’ of the public

. interest, and; within their constitutional competence,

their understanding of that interest must be accepted

as ‘well-nigh’ conclusive. Berman v. Parker, 348 U.S.

26, 32 [1964].” In-re Gault,.supra, at 70 (Harlan, J.;

~ ¢ eoneurring and dissenting).

The fundamental issue is, of course, to what extent this

deference is given where constitutional issues of procedural

protection are involved. While the basic non-criminal char-

acter of juvenile proceedings does not justify arbitrariness

or a denial of fundamental fairness, we urge that it does

justify judicial deference .to legislative judgment which

establishes the procedures at issue here as part of a detailed

statutory scheme enacted specifically to provide funda-

mental fairness -in reat undertaken in the child’s

best interests. |

The- California Juvenile Court Law was extensively

revised in 1961 as a result of recommendations made by the

Governor’s Special Study Commission on. Juvenile Justice ~

in the course of a study ef all phases of Juvenite Justice in

California. The recommendations made were the “product

of an extensive conscientious process of review.and re-eval-

uation in which numerous local juvenile and judicial officials

throughout thé state actively participated.” Report of the

-Governor’s Special Commission on Juvenile Justice, Part

I, at 10. The procedural scheme recommended by the com-

mission and accepted by the legislature did not provide for

, jury trial and established the degree of proof, required as

eo preponderance of the evidence. Despite significant changes

‘subsequent to Gault, these particular procedural require- -

ments have remained unchanged.” Setting aside appellant’s

argument that Gault is, necessarily a mandate to impose a

-rigid criminal label and procedure on juvenile proceedings, -

“we submit that reasoned analysis supports the legislative

judgment on both issues.

1. JURY TRIAL

In its 1961 study, the ¢ ‘alifornia. Commission commented

‘on jury ‘trial in juvenile cases;

“The generally held view, shared by the commission

and all of € alifornia’s juvenile court: judges, is that

the jury system is, incompatible with the philosophy

7. pointed out by the California Susteme Court in In re

Dennis M. at 469, the California legislature .has been fully respon-

sive to Gault by adopting uumerous amendments designed to imple-

ment Gault. See Calif.’ Stats 1967, ch. 507, 1355, 1356.

" ST

of the juvenile court law.” Report of the Governor’s:

Special Study: Commission.on Juvenile J — Part

II, at 19.

A survey of 25 Judges in the largest California counties

. revealed all were opposed. to such trials, their comments

suggesting that jury trials would be in conflict with juve-

nile court philosophy and would. destroy the protective

purpose of the court. Tt was ndted that the publicity at-

tracted would go far to eliminate he confidentiality neces-

sary for effectiveness. Ibid. | me

_ To similar effect is the discussion by. the President’s Task

Force on Juvenile Delinquency i in 1967: |

“Most States do not provide jury trial for javentien.

. Even Illinois, New York, and California, which have —

recently revised their juvenile court laws to increase

procedural safeguards for.the child, have not extended —

the right to trial by jury. Therefigjmuch to support the

implicit judgment by these Statés that trial by jury

is not crucial to a system of juvenile justice. As this

report has suggested, the standard should be what .

_ elements of procedural protection are essential for

achieving justice for the child without unduly impair-

ing the juvenile court’s distinctive values.

‘As has been observed, ‘A jury trial would inevitably

bring a good deal more formality to the juvenile court

without giving the youngster a demonstrably better

fact-finding process than trial before a judge.’ The

. presence of a jury tends in a number of ways to con-

tribute to an. atmosphere of formality. In part, for-

mality becomes itself an end insofar as it helps instill

, in jurors a sense of the seriousness and solemnity of

their duties. Moreover, the presence of a jury affects

the whole process of dealing with evidence. Much of

the reason for many restrictive rules of evidence, which

é e

ETRE GE PE ’

18 ‘

typically give rise to narrow contentiousness over mar-

ginal issues, stems from the felt need to prétect against

a jury’s susceptibility to prejudice and irrelevancies

é and its limited ability to distinguish between the more

- and less probative. And when a jury is the object of

an attorney’s. persuasion, he naturafly responds to

what he believes will most affect it, with the usual

result an emphasis on staging, effect and emotion

rather than a more businesslike presentation.

“A further. consideration arguing against a jury

arises out of the typically loose and general statutory

formulations of the behavior that may subject a youth

to juvenile court jurisdiction, particularly insofar as

the conduct includes acts other than those that would

be criminal if engaged in by adults: i.e,, incorrigibility,

need for care and supervision, truancy. Inequality and °

disparate decisions are ete by giving these form- .

ulae to ad hoc juries for*application rather than to

Judges, who ttend inevitably to develop concrete mean-

. ings for such terms. If a jury were required, the appro-

priate standard of proof (beyond a reasonable doubt,

preponderance of the evidence, and so forth) would. - é

become a more critical issue. ° >

“As Mr. Justice Cardozo noted, it would not appear

that a fair and enlightened | system of justice is impos-

sible without jury trials. ‘This too might be lost, and

justice still be done.’” The President’s Commission

on Law Enforcement and Administration of Justice,

‘Task Force Report: Juvenile Delinquency and Youth -

Crime, at 38°(1967),

“The courts and commentators which have considered the

issue have disagreed on its resolution, with the better rea- -

soned opinions, in our view, taking the position that a -jury

- trial is not an essential Part of dye process in ‘a juvenile

proceeding.°

This issue jvas analy zed at length in Commonwealth v_

Johnson, 211 Pa. Super. 62, 234 A.2d 9 (1967). The Pennsyl- |

vania appellate court reached the conclusion that jury trial ~~

is not a requirement of due process in juvenile proceedings.

— “Tn short, those who find in Gault the obliteration of ©

any distinctions between the treatment accorded juven-

iles and adults are reaching a conclusion that is un-

warranted. It is clear to us that the Supreme Court

has properly attempted to strike a balance by injecting

procedural orderliness into the juv enilé court system.

. It has not suggested that“ve discard the flexibility

which has long been the hallmark of juvenile courts,

but that we temper it with certain procedural safe-

guards.” 234 A.2d at 15-16.

The court viewed Gault as an

“invitation to formulate a court procedure w hich will

combine the best aspects of juvenile and ¢ ‘riminal court

-procedure into an amalgam which will offer the juven-

ile the best of both w orlds. ” Id. at 16.

8. Compare Dryden v. Commonwealth, 435 S.W.2d 457 (Ky.

1968); Shone v. State, 237 A.2d 412 (Maine 1968); DeBacker v. .

Brainard, 183 Neb. 461, 161.N.W.2d 508, 519 (1968) (minority opin-

ion); Estes v. Superior Court, 488 P.2d 205 (Wash. 1968); In re

Agler, 15 Ohio App.2d 240 (1968) ; and Commonwealth v. Johnson,

211 Pa. Super. 62, 234 A.2d 9 (1968) with Nieves v. United States,

280 F.Supp.- 994 (S.D.N.Y. 1968); and Peyton v. Nord, 78 N.M.

717, 437 P.2d 716 (1968). See also, Zn re Dennis M., 70 A.C. 460,

471-72 (1969) (by impheation—jury trial not required). Commen-

tators are a divided. Compare Welch, op. cit. supra; Paul-

sen; Fairness to the Juvenile Offender, 41 Minn. L. Rev. 547, 559

(1957) with Anticau, Constitutional Rights in Juvenile Courts, 46.

Cornell L.Q. 387, 399-400 (1961); Dorsen & Rezneck, Gault and

Juvenile Law, 1 Family Law Q. No. -4; 1, 22-23 (1967). See gen-

erally, Annot. 100 A.L.R.2d 1241 (1968). As appellant. points out,

the majority of jurisdictions do not ig" rs for jury trial in juve-

nile cases. — S Briet at 12-13,/n.

The court reviewed the responsibilities of the juvenile court

judge, finding, in essence, that he must be more than a trier

- of fact. a

“(H]e must, in a unique manner, establish a relation-

ship that will permanently alter the -behavior patterns

of the child.” Id. at 17.

Fhé insertion of jury trials would sorely limit the juvenile

court judge in carrying out his special tasks. Ibid. |

- “(Wie find that the Supreme Court recognized that

juvenile courts, while acting within the constitutional

guarantees of due process, must, nonetheless, retain

their flexible procedures and techniques. The institu-

_ tion of jury trial in juvenile court, while not materially

contributing to the fact-finding function of the court, |

would seriously limit the court’s ability to function

in this unique manner, and would result in a sterile

procedure which could not vary to meet the needs of

delinquent children.” Ibid. ©

J shuson was decided before this Court’s decision in Dun-

can v. Louisiana, 391 U.S. 145 (1968), made the right to jury

trial an element of due process applied to state criminal

trials. The highest court of Kentucky considered the effect

of Duncan, but nonetheless followed the Pennsylvania court

in Johnson. In Dryden v. Commonwealth, 435 S.W. 2d 457

(Ky. 1968), the court was unwilling to equate a juvenile

proceeding with a criminal trial even though the basis might

be conduct which would be a crime if committed by an

adult: The court noted that if institutionalization may be

the result, “it can make_no sensible difference whether he

_is charged with having’ committed a criminal offense, of

truancy, of habitual disobedience to his parents, or of being

dependent, neglected, needy or abandoned.” Id. at 461. The

court continued: = >’

“A jury trial, with all the clash and clamor of the

adversary system that necessarily goes with it, would ©

certainly invest a juvenile proceeding with the appear-

ance of a criminal trial, and create in the mind- and

memory of the child the same effect as if it were. In

our opinion there is more to be lost than gained. Cer-_

tainly we cannot regard a jury as a better, fatrer, more

accurate\fact-finder than a competent and conscientious

circuit jydge.” J bid. :

~2V

Appellant, however, ly the simple. expedient ‘of labeling

a juv enile proceeding a criminal trial, argues that. this

court’s decision in Duncan v. Louisiana, supra, and in Bloom

v. Illinois, 391 U.S. 194 (1968), “have so completely mooted’

fhe arguments, pro and con, that no further explication is

necessary.” Appellant’s Brief at 19. We submit that such an

approach is not only simplistic but circular. Our inquiry is

whether, despite legislative judgment to the contrary, due

process requires a jury trial in juvenile proceedings, which

may or may not involve “criminal” conduct; may or may not

result in incarceration; and do not involve.“crime in the

ordinary sense; ... a public wrong which is punishable by

fine or imprisonment or both.” Bloom v. Illinois, supra, at

201. ae

Moreover, appellant’s argument fails to take into account

‘ the fact that a rigid application of Duncan and Bloom sim-

ply does not fit the realities of the juvenile court system.

He argues that jury trial should be provided for in the

juvenile court whenever a child is charged with a “crime”

which for an adult gives rise to a right to jury trial. Duncan

and Bloom establish this right for “serious crimes,” appar-

ently those with possible sentences of greater than six

months. In juvenile cases, commitment for a potentially

longer period may be ordered in cases where an adult would

not be entitled to a jury trial and in cases not involving

crimes at all.

If the right to jury trial is based on the potential com- ©

mitment, then we must ask j juries to find juveniles “guilty”

of conduct which is not crime, and which is not subject to -

precise definition. As pointed out by the President’s Task

_ Force on Juvenile Delinquency as quoted, supra. ve

“Inequality and disparate decisions are invited by

giving these formulae to ad hoc juries for application

rather than to judges, who tend inevitably to ee

concrete meanings for such terms.”

In the statutory scheme established in California, when

commitment is ordered, it is not determined by the conduct

charged, but on the basis of factors developed in the dis-

positional hearing. The conduct -serves only to give the

court jurisdiction to proceed. This is the truly important

distinction between adult and juvenile cases.° :

“The fact of exposure to incarceration at all, a quali-

tative consideration, seems, in light of the. fourteenth

amendment’s specific concern for preserving individual

liberty, to be an appropriate basis for prescribing pro-

cedural safeguards aimed at ensuring the reliability

of determinations that state intervention is warranted.

The right to counsel, reliable evidence, standard of

proof, cross- examination, and transcript of fecord all

relate to reliability. Other procedural aspectk of crim-

inal prosecution, such as probable cause for appre-

hension, the right to bail, the right to trial: by jury,

the privilege against self-incrimination and exclusion-

, ary rules for evidence obtained by trespassory searches

and seizures, should not be applied verbatim to juvenile

proceedings without due consideration of qualitative

differences in incarceration and other differences in

® juvenile law. e:

9. It was apparent} the “tokenism” of this dispositional hear-

ing that concerned this Court in Gault: “The traditional ideas of

Juvenile Court procedure, indeed, contemplated that tim¢ would

be available and care would be used to establish precisely“what the

juvenile did and why he did—was it a prank of adolescence or a

brutal act threatening serious consequences to himself or society

‘ “Rather than holding that qualitative aspects of

incarceration are ‘of no constitutional consequence’ and

that other statutory ‘rights and immunities\afforded

the juvenile are ‘in no way involved,’ the cause of

juvenile correction would be better served by a hold-

ing that made these ‘differences’ essential to the con-

stitutionality of carefully tailored ‘noncriminal’ pro-

cedures, while insisting upon the realization of these

differences in fact in individual cases through appro-

priate review by appeal and habeas. corpus.” | Welch,

op. cit. supra, at 35.

Appellant further argues that “lurking just beneath the

surface of all arguments that juveniles must not have juries,

is the fear that, in some cases, a jury might acquit a juve-

nile and thus spare him from the benevolent rehabilitation

techniques of the state.” Appellant’s Brief at 17.

While it is possible to argue that one rationale for jury

trials in criminal ¢ases is the ability of the jury to ignore

the letter of the law and return a verdict based on other

considerations, this rationale, even if valid, is completely

inappropriate to juvenile cases where the primary objec- |

tive is to help the child. It may be a “victory” for an adult

charged with crime to be relieved of punishment because

- it is too severe, ‘or because the underlying reasons for his

‘behavior elicit gsympathy. It can hardly be considered a

victory-for anyone, least of all for the juvenile, if a jury

irrationally “acquits” a juvenile whose. behavior shows he

needs help. See Paulsen, Kent v. United States: The Con-

stitutional Context of Juvenile Cases, 1966 Supreme Court

Review 167, 189 (1966). |

unless corrected? Under traditional notions, one would assume that

in a ease like that of Gerald Gault, where the juvenile. appears to

have a home, a working mother and father, and an older brother,

the Juvenile Judge would have made a eareful inquiry and. judg-

ment as to.the possibility the boy could be disciplined and dealt

with at home, despite his previous transgressiens. (Fuotnotes omit-

ted.) Id. at 28.

Finally, appellant ignores the problem of waiver which

would result from the wholesale importation of criminal

_ law procedures into the juvenile court system, particularly

where the “right” in question is of highly debatable benefit

or utility. The obvious problems of waiver by a juvenile

have been reeognized. See, e.g., In re Gault, supra, at 55; °

Comment, The Juvenile Court Revolution in Washington,

_ 44 Wash. L. Rev. 421, 432-33 (1969). It has been stated that

there are two issues involved: (1) What is the standard.

for an effective w aiver; and (2) who has the authority to

~ waive the juvenile’s rights. Jbid.

If a juvenile court proceeding is a criminal] trial, and

the adult “protections” are to apply to the juvenile in full

force, then he must have a jury trial as a constitutional

right unless he has knowingly and intelligently waived it.

Cf., In re Gault, supra, at 42. If anyone but.the juvenile

is able to waive this right, then we are applying a different

standard to juveniles, impossible under the rationale that

_ the differences in juvenile court proceedings do not justify.

deviation from the criminal law model. Thus, there will

be some juveniles who will be incapable of waiving.

Yet, even in the sizable number of jurisdictions which

provide by statute for a jury trial, the “right” is rarely

exercised; most juveniles, or their parents or counsel,

choose the informality, privacy, and expertize of a court

proceeding. See Paulsen, op. cit. supra, at 186; Peyton v.

Nord, supra, at 726. Thus, the unconscionable result of

establishing the eriminal jury trial as a constitutional right

‘in a juvenile proceeding is to force the child incapable of

waiving to participate in a jury trial which most legisla-

- tures have weighed and found wanting, and which those

children capable of making an intelligent choice or their

representatives nearly invariably reject.’

To answer tliat the problem does not exist because parent

or counsel may waive~the right is inevitably to recognize.

that the difference in proceedings concerning juveniles.

justifies different standards than those applied to adults.

If this is so, then-we fail to see why these same differences

do not justify. judicial deference to the legislative “waiver”

made for all juveniles on the basis that their interests are

not best served by a jury trial.

2. STANDARD OF PROOF ;

As part of the general revision of California juvenile law |

in 1961, the Governor’s Commission recommended and the.

legislature enacted section 701 of the Welfare and Institu-

_tions Code which provides in pertinent part that

“a preponderance of the evidence, legally admissible

in the trial of criminal] cases, must be adduced to sup-

port a finding that the minor is a person described by

section 602, and a preponderance of the .evidence,

legally admissible in the trial of civil cases must be

adduced to support a finding that the minor is a per-

- son described by sections 600 or 601."

The Commission’s comment on this section reads as follows:

“The Commission believes these objectives [preserv-

ing the guarantee of due process to the minor, and

establishing an informal court atmosphere so that po-

10. This should be contrasted with the situation in the adult

criminal courts. “The laws of every State guarantee a right to jury

trial in serious criminal cases; no State has dispensed Ww vith it; nor.

are there significant movements underway to do so.” Gault at 154.

“[T]he fact is that in most places miore trials for serious erimes are

to juries than to a court alone; a great many defendants prefer the

judgment of a jury to that of a court.” Jd. at 158.

11: Thus, the section differs somewhat from the Nebraska law

which provides for hearings, to a judge, to’ be conduetéd in an

informal manner “applying the customary rules of evidence in use

in civil trials without a jury in the district courts.”’ Nebraska Stat-

utes 43-206.03 (2) (See Appellant’s Brief at 43): ;

* 26

tentially harmful effects of the proceedings are mini-

mized and the minor’s receptivity to treatment is en-

couraged] can be attained by applying rules of evi-

dence routinely observed in the trial of any other

cause in a court of law with one important modifica-

tion, that such rules are to be applied only to test

sufficiency of evidence and not to be applied as rules

of admissibility. Thus, any matter relevant and mate-

Tial to the past or present conduct, welfare, or care

of the minor, and any matter material and relevant

_ to the acts or circumstances which are alleged to bring

him within the court’s jurisdiction, should be received

in evidence. However, competent evidence, not subject —

to timely objection by competent counsel, must be ad-

duced to support a finding of wardship.

“All of the reasons for employing rules of evidence

in other judicial proceedings, e.g., to insure truthful,

reliable, and fair testimony, apply with equal force to

a hearing on a minor’s delinquency or a hearing in

; which a child may be removed from his any because

it, of parental neglect.

“On the other hand, the Commission sees no valid

reason for requiring the degree of proof customary

in criminal cases. It is our opinion that requiring

proof of the jurisdictional facts by a preponderance

of evidence will sufficiently safeguard the rights of the

minor so long as the court scrupulously observes the

presumptions of lawful conduct and circumstance

until the allegations are actually proven in open

hearing.” Report of the Governor’s Special Commis-

sion on Juvenile Justice, Part I at 30.

This provision of the California Juvenile Court Law

establishing the standard of proof was recently considered

by -the California Supreme Court in light of Gault. In re:

Dennis M., 70 A.C. 460, 75 Cal.Rptr. 1, 450 P.2d 296 (1969).

Peg

In an exhaustive and carefully considered opinion, the

California court found no denial of due process in the

application in juvenile proceedings of the standard of proof

established by the legislature. We have little to add te the

perceptive review made by that court. The relevant pdr

tion of the opinion is quoted below for the convenience of

this Court.”*

. “We meet at the outset a contention advanced by

appellant at oral argument; i.e., that the United States

Supreme Court decision in In im Gault (1967) 387 U.S.

1 [18 L.Ed.2d 527, 87 S.Ct. 1428}, compels the state

~ to establish the facts supporting a charge of juvenile

delinquency by the criminal standard of proof ‘beyond

a reasonable doubt.’ We do not so read Gault. It is true,

of course, that the decision inaugurated a sweeping

constitutional reform of the rights of juveniles in this

cauntry. It drew from the teaching of earlier cases the

fundamental proposition that ‘neither the Fourteenth

. Amendment nor the Bill of Rights i is for adults alone’

(387 U.S. at p. 13 [18 L.Ed.2d ‘at p. 538] [and laid].

down specific guidelines for implementing those guar-

“antees in juvenile proceedings. Yet in so doing the

court took repeated pains to limit its holding by warn- |

‘ing that ‘We do not in this opinion consider the impact

of these constitutional provisions upon the totality of

the relationship of the juvenile and the state. We do

not even consider the entire process relating to juvenile

“delinquents.” ’*(/bid.) First, the decision was intended

to affect only the adjudicatory stage of juvenile. pro-

ceedings, and then only when the outcome may be:com-

mitment to a state institution. (Ibid.) ondly, the -

court made it clear that even if the foregoing condi-

tions are met, the Constitution does not require that

— the full panoply of rights accorded to an adult accused

Footnotes in quoted nate are numbered as in original.

, Qs |

. . of erime be erected in the juvenile court. (Id. at pp. 27,

30 [1S L.Bd.2d at pp 46, 47-548).) Rather, the opin-

ion (at pp. 30-31 (IS L.Rd.2d at pp. 547-548]) adopts .

for. juvenile court adjudications of delinquency the

holding of Kent e. Uwated States: (1966) 383 U.S. 541,

562 [16 L.Pad 2d 84, 88, S6 S.Ct. 1045], that ‘the hear-

ing must measure up to the essentials of due process

and fair treatment.” Those essentials, as the remainder

of the opinion spells out, are (1) adequate notice of

the charges, (2) assistance of counsel, (34 opportunity.

for confrontation and cross-examiinafion, ahd (4) the

‘privilege against self-incrimination. (387 U.S. at pp.

31-57 (18 L.Ed.2d at pp MS-568].) ;

“Not only is standard or quantim of proof missing

from the foregoing itemized list, but the court ex-

pressly declined to reach this very issue. In the course

of its opinion below, the Arizona court had ruled on

the question of the appropriate standard of proof in -

juvenile cases} referrime inter alia to that ruling, the.

United States Supreme Court stated (387 U.S. at pp.”

10-11 (18 L.Ed 2d at pp. 86-537]) that ‘We emphasize

that We indicate mo opimion as to whether the decision

of that court with respect to such other issues does. or

does not contlict with requirements of the Federal Con-

stitution.” And one year later the court again refrained

from deciding the issue?

“We infer that at least for the present the Supreme

Court has left this matter to the states and the lower

federal courts. The results, howéver, are still highly

a 9 - .

5. In In re " Whittington IS6T) 18 Ohio App.2d 11 [42 Ohio

Ops 2d 39, 253 NOE 2d RSS) a Mewwarold wouth had been adjudged

a delinquent after a andine ona ptrponde rance of the evidence

that he had comurittedt secur? teen murder. In affirming, the Ohio

court rejected a contention that the proof of such conduct must be

- made beyond a reasunable dvale The United States Supreme Court

granted certiorari amd heart oral argament, but ultimately chose

- not te reach the mertts rather movacated the judgment and re.

manded the case for recotenteratian im the light of Gault,. which

hack been dee sanded im the paterim

inconclusive. At least three different formulae have

been sanctioned. The great weight of authority holds

that in juvenile proceedings the general civil standard

of proof by a preponderance of the evidence governs.

(See cases collected in Note, 43 A.L.R.2d 1128, 1138--

1141.) Some courts, including the Arizona Supreme

Court in Gault itself, have adopted the special civil

standard of proof by ‘clear and convincing evidence.’

(See, ¢.g. Application of Gault (1965) 99 Ariz. 181

. [407 P.2d 760, 768].) And the few jurisdictions to con-

sider the issue since Gault are divided: in Illinois and

Texas it has been held that the criminal standard of |

proof beyond a reasonable doubt is now constitution- .

ally compelled in juvenile cases (Iv re Urbasek (1967)

nt Il.2d 535 (232 N.E.2d 716]; Santana v. State (Tex.

Civ. App. 1968) 431 S.W.2d 558; see also United States «

v. Coshinzo (4th Cir. 1968) 395 F.2d 441, 445 [applying

the more limited terms of the federal juvenile statute];

DeBacker v. Brainard (1968), 183 Neb. 461 [161 N.W.

2d SOS, 513] [dissenting opinion by four justices; state

constitution requires coneurrence. of ‘five to hold a

statute unconstitutional] ), while the District of Colum-..

bia Court of Appeals has adhered to its pre-Gault

adoption of the preponderance. of the evidence test

(In re Wylie (D.C. Mun, App. 1967) 231 A.2d 81, 84).

“In California we do not write upon a cleam slate.

For the first half-century of their existence our juvenile

court statutes contained no provision on this topic, and

a wide variety of standards of proof was in aétual

use.® In 1957, however, a special commission was ¢re-

ated to survey and evaluate the administration of

juvenile justice in this state and submit recommenda-

tions for legislative action. After three vears of field -

6. Many trtal judges voluntarily applied rules of evidence in

contested eases. But both ‘eivil rules’ and related criminal rules

were invoked, and in the latter eategory approximately one-half of

the judges used the reasonable doubt: standard and one-half used

preponderance of the evidence. (Rep. of Governor's Special Study

Com on Juvenile, Justice (1960) pt. HT, pp. 9-10.)

studies, hearings, drafts, and conferences with experts —

and practitioners alike, the commission filed its report.

On the important issue of »rocedural rules, the com-

mission posited that ‘The problem in attempting to

establish acceptable juvenile court procedures is to

attain a working balance between two essehtia] objec-

tives—first, preserving the guarantee of due process

to the minor; and second, establishing an informal

court atmosphere so that potentially harmful effects

of thé proceedings are minimized and the minor’s

receptivity to treatment is encouraged.’ (Rep. of Gover-

nor’s Special Study Com. on Juvenile Justice (1960),

pt. I, p. 29.)- Mindful of both of these goals, the com-

mission concluded (at p. 30) that ‘All of the reasons

for employing rules of evidence in other judicial pro-

ceedings, e.g., to insure truthful, reliable, and fair

testimony, apply with equal force to a hearing on a

minor’s delinquency or a hearing in which a child may

be removed from his family because of parental neg-

lect... . On the other hand, the Commission sees no

valid reason for requiring the degree of proof custo-

mary in criminal cases. It.is our opinion that requiring

proof of the jurisdictional facts by a preponderance

of evidence will sufficiently safeguard the rights of the

minor so long as .the court scrupulously observes the

presumptions of lawful conduct and circumstance until

the allegations are actually proven in open hearing.’

Accordingly, the commission recommended that the

standard ef proof in juvenile court matters be a pre-

_ponderance of the evidence, and the Legislature so pro-

vided (Stats. 1961, ch. 1616, p. 3482. iy

7. Now Welfare and Institutions Code s« section 701, the statute

declares in relevant part that “a preponderance of evidence, legally

admissible in the trial of criminal cases, must be adduced to sup-

port a finding that the minor is a person deseribed by section 602,

and a preponderance of evidence, legally admissible in the trial of

civil eases must be adduced ‘to support a finding that the mingr is

a person described by sections 600 or 6012 ®

- “The Legislature, moreover, has been fully respon-

sive to Gault. Many of the safeguards required by

Gault had already been incorporated into our law six/

years before that decision, as the opinion itself recog-

nizes. (387 U.S. at p. 37 fn. 63 [18 L.Ed.2d at pp. 551-

552].) Nevertheless, in its 1967 session the Legislature

adopted numerous amendments designed to comply

with the entire mandate of Gault, by implementing i in

considerable detail the juvenile’s right to notice, to

counsel, to confrontation and cross-examination, and

his privilege against self-incrimination. (Stats. 1967, -

chs. 507, 1355, 1356; see generally Gardner, Gault and

California (1968) 19 Hast. L.J. 527, 532-539.)

“Such deliberate acts of the Legislature come before

us clothed with a presumption of constitutionality: ‘All

presumptions and intendments favor the validity of a.

statute and mere doubt does not afford sufficient rea-

son for a judicial declaration of invalidity. Statutes

must be upheld unless their unconstitutionality clearly,

positively. and unmistakably appears. [Citations.]’

(Lockheed Aircraft Corp. v. Superior Court (1946)

2S Cal2d 481, 484 [171 P.2d 21, 166 A.L.R. 70t);

accord, State of California v. Industrial Acc. Com.

(1957) 48 Cal.2d 365, 371 [310 P. zd 7}; In re Davis

(1966) 242 Cal App.2d 645, 651 [51 Cal. Rptr. 702).)

No such showing is here made with regard to the.

statutory standard of: proof in juvenile matters.

“In contrast to a number of the fundamental guaran-

tees of Anglo-American criminal law Which Gan trace

their sources back to the Magna Carta or even earher

(e.g., Duncan vv. Loursiana, (90S) SL EAS. 145) [20

‘.Ed.2d 491, 88 S.Ct. 1444] [right to trial iy jury]:

Klopfer v. North Carolina (1967) S86 UUs. 215) [1s

L.Ed. 1, 87 S.Ct. OSS] [right- to speedy trial} ), the

standard of proof *bevond a reasonable doubt’ is a

relatively recent development. [t appearsto have had

its origin at the. end of the Fighteenth Century, and

to have first passed through a variety of differing

and tentative formulations. (9 Wigmore, Evidence (3d

ed. 1940), p. 317.) Although it is now codified in our

statutes (Pen. Code § 1096), it is not mentioned in

either the California or federal Constitutions. For

present purposes, however, we may assume that it is

. part of the due prpcess of law guaranteed in criminal

cases by the Fourteenth Amendment. (See Speiser v.

Randall (1958) 357 U.S. 513, 525-526 [2 L.Ed.2d 1460,

1472-1473, 78 S.Ct. 1332].) The question remains, does

Gault require, by implication, that this element of adult

criminal trials be incorporated into our juvenile court

law? .

“Prior to Gault it was squarely held that by reason

of the fundamental differences in nature and purpose

between a criminal prosecution and a juvenile pro-

ceeding, the use in the latter of the preponderance of

‘the evidence standard prescribed by Welfare and In-

stitutions Code section 701 does not constitute a viola-

tion of either due process or equal protection of the

law. (In re Johnson (1964) 227 Cal.App.2d 37, 39

[38 Cal.Rptr. 405]; cf. In re Castro (1966) 243 Cal.

App.2d 402, 408 [52 Cal. Rptr. 469}.) Untess those

differences have been obliterated by Gault, the Johnson

holding remains the law of this state. (See, e.g., In re

Jones (1967) 256 Cal.App.2d 240, 243-244 [63 Cal.Rptr.

- 748] [post-Gault appeal from declaration of wardship

based on charge of attempted arson; preponderance

of the evidence standard applied without discussion].)

We do not deny that Gault casts doubt on the tradi-

tional.-parens patriae theory, and exposes many defects

‘in its practice; but we also take the high court at its

word when it reiterates that under the Constitution

the juvenile court hearing need not ‘conform with all

of the requirements of a\criminal trial or even of the

usual administrative heating’ (387 U.S. at p. 30 [18

L.Ed.2d at p. 548], quoting from Kent v. United States

| . 83 :

(1966) supra, 383 U.S. 541, 562 [16 L.Ed.2d 84, 97].)

‘Indeed, the opinion ig replete with language admonish-

ing that the new rules there laid down should not be

taken to spell the end of the juvenile court process

per se, and that many of its unique attributes can and |

‘should be preserved.® :

In a thoughtful decision rev iewing the just quoted

language of Gault, a Pennsylvania appellate court has

concluded that ‘those who find in Gault the obliteration

of any distinctions between the treatment accorded

juveniles and adults are reaching a con¢lusion that is

unwarranted. It is clear to us that the Supreme Court

has properly attempted to strike a judicious balance

by. injecting procedural orderliness into the juvenile

court system. ... It has not suggested that we discard

the flexibility which has long been the hallmark of

ae the observance of due process standards, intelligently

‘and not. ruthlessly administered, will not compel. the States to

abandon or displace any of the’ substantive benefits of the juvenile

process.’ (Fn. omitted; 387 U.S. at p. 21 [18 L.E d.2d at p. 543].)

‘We do not mean .. . to denigrate the juy enile court process or

to suggest that there. are not aspects of the juvenile system relating

to offenders which are valuable. But the features of the juvenile

system which: its proponents have asserted are of unique benefit

will not -be impaired by constitutional domestication. For example,

the commendable pr inciples relating to the processing and treat-

- ment of juveniles separately from adults are in no way involved or

affected by the procedural issues under discussion. Further, we are

told that one of the inyportant benefits of the special juvenile court

procedures is that they avoid classifying the ‘juvenile as a ‘erim-

inal.’ The juvenile offender is now classed as a ‘delinquent.’ There

is, of course, no reason why this should not continue.” (In. omit-

ted; id. at pp. 22-23 [18 L. Ed.2d at pp. 543-544] .)

‘Of course, it is not suggested that juvenile court judges should

fail appropriately to take account, in their demeanor and conduct,

of the emotional and psychological attitude of the juveniles with

whom they are confronted. While due process requirements will, in

‘some instances, introduce a degree of order and regularity to juve-

nile court proceedings to determine delinqueney, and in contested

cases will introduce some elements of the adversary system, nothing

will require that the conception of the kindly juvenile judge be

replaced by its opposite, .. .” (Italics added; id. at pp. 26-27 [18 |

L.Ed.2d 545-546].) ;

juvenile courts, but that we temper it with certain

procedural safeguards. . . . [W]e are in full agree-

ment with the helding of the Supreme Court that the

constitutional safeguards of the Fourteenth Amend-

ment guaranteed to adults must similarly be accorded

juveniles. It is inconceivable to us, however, that our

highest Court attempted, through Gault, to undermine

the basie philosophy, idealism and purposes of the

juvenile court. We believe that the Supreme Court did

not lose sight of the humane and beneficial elements

of the juvenile court system; it did not ignore the need

for each judge to determine the.action appropriate

in each individual case; it did not intend to convert

the juvenile court into a criminal court for young

people. Rather, we find that the Supreme Court recog-

nized that juvenile courts, while acting within the con-

stitutional guarantees of due process, must, nonethe-

less, retain their flexible procedures and techniques.”

(Commonwealth v. Johnson (1967) 211,Pa. Super. 62

[234 A.2d 9, 15-17].)

“The issue before the Pennsylvania court was

whether Gault required, by implication, that the right

to a jury in adult criminal trials be incorporated into

juvenile court law. The court held that it did not,

reasoning that ‘the institution of jury trial in juvenile

court, while not materially contributing to the fact-

finding function of the court, would seriously limit the

court’s ability to function in this unique manner, and

would result in a sterile procedure which could not

vary to meet the needs of delinquent children.’ (/d. at

p. 17; accord, Dryden v. Commonwealth (Ky: App.

1968) 435 S.W.2d 457; In re Fletcher (1968) ....Md.

pS or [248 A.2d 364]; People v. 3656, 3658, Y.0.

(Sup.Ct. 1968)........ N.Y.S.2d ......... ) -

“Although the consequences of adopting the reason-

able doubt standard in juvenile court would perhaps

be less drastic than adopting a jury system, to do

so would nevertheless introduce a strong tone of crim-

¢ 35° f

inality into the proceedings. The high degree of cer-_

tainty required by the reasonable doubt standard is

appropriate in adult criminal prosecutions, where a

major goal is corrective confinement of the defendant.

for the .protection of society. But even after Gault, as

we have seen, juvenile procegdings retain a sui generis

character; although certain basic rules of due process.

must be observed, the proceedings are nevertheless con-

ducted for the protection and benefit of the youth in

question. In- such cireumstances, factors other than

‘moral certainty of guilt’ come into play: e.g., the ad-

vantages of maintaining a noncriminal atmosphere

throughout the hearing, and the need for speedy

and individualized rehabilitative services. Indeed, the

vouth’s allfZed crime may often be only the latest or

-most overt symptom of an underlying behavioral or

personality disorder which could equally well warrant

~a declaration of wardship pursuant to other provisions

of the code.® Thus a determination whether or not the

person committed the particular misdeed charge ia—

~ although the very heart of an adult ¢riminal prosecu-

tion—may not in fact be critical to the proper dispo-

sition of many juvenile cases. On the contrary, in the

latter the best intgrests of the youth may well be served

bya prompt factual decision at a level short of ‘moral

orate

1} {Footnote omitted.} [Sets forth Welf. & Inst. Code $$ 600,

- 601}. ;

10. Even in adult criminal trials, of course, the standard of

proof ‘beyond a reasonable doubt’ applies only to the issue of guilt

itself. A variety of lesser standards of proof govertis other issues

that may arise in the,course of such proceedings:

(1) ‘Slight’ or ‘prima facie’ showing: proof of corpys delicti

(People v. Amaya (1952) 40 Cal.2d 70, 76 [251 P.2d 324]).

(2) ‘Propnderanes of the evidence’; territorial jurisdiction of

the crime (People v. Cavanaugh (1955) 44 Cal.td 252. 262 | 2s2

P.2d 53])2 venue in the proper county (People vo Megladdery

(1940) 40 Cal. App.2d 748, 764 [106 P.2d s4}); defendapt’s ab-

sence from the state, as tolling the statute’ of limitations ¢Peopli

“In any event, we cannot say that the Legislature

plainly exceeded constitutional limits in finding that

the benefits of the reasonable doubt standard would

be outweighed by the adverse effects of imposing that

doctrine of adult criminal law on the essentially reme-

~dial proceedings of the juvenile court.”

“Turning to the writings of legal scholars on the

question, we find a wide divergence of views. To begin

with, in the appellate decisions and statutes of our sis-

ter states, as noted above, the weight of authority —

heavily favors the standard of preponderance of the

evidence. Under analogous circumstances, the United

States Supreme Court was called upon to decide wheth-

er the due process clause was violated by an Oregon

statute requiring an accused who pleaded insanity to

bear the burden of establisHing that defense bey ond

_a reasonable doubt. (Leland v. Oregon (1952) 343 US.

790 [96 L.Ed. 1302, 72 S.Ct. 1002}. ) The high court

reasoned (at p. 798 [96 L.Ed. at pp. 1308-1309] ), ‘Some

twenty states, however, place the burden on the accused

to establish his insanity by a preponderance of the

evidence or some similar measure of persuasion. While

there is an evident distinction between these two rules’

as to the quantum of proof. required, we see no prac-

Meaitt: (1935) 10 Cal. App.2d 155, 159-160 [51 P. 3a 433]); proot

of insanity by defendant (People v. Daugherty (1953) 40 Cal.2d

R76, 901 [256 P.2d 911] ); defendant's proof of entrapment (People

. Valverde (1966) 246 Cal.App.2d 318, 325 [54 Cal.Rptr. 528]);

cf, Estate of Nelson (1923) 191 Cal. 280, 286 [216 P. 368] | proof

of guilt of a erime, when at issue ina civil ease]. —

(3). *Preponderance of substantial evidence’: proof of other

crimes committed by defendant, to show identity through a ecom-

mon modus ope randi (People v. Durham (1969). ante, [70 A.C.

179, 196 tn. 15, 74 Cal. Rptr. 262, 449 P. 2d 198] ).

(4) ‘Clear and econvineing evidence’: defendant's burden to

support a motion to withdraw a guilty plea (People v. Brotherton

(1966) 239 Cal. App.2d 195, 200 [48 Cal.Rptr. 513]).

11: Thus characterized, their similarity to proceedings for the>

involuntary commitment of mentally ill persons or nareotie drug ‘

addicts becomes readily apparent. In the latter, the possibility of

tical difference of such magnitude as to be significant

in determining the constitutional question we face here.

Oregon merely requires a heavier burden of proof. In

each instance, in order to establish insanity as a com-

plete defense to the charges preferred, the accused

must prove that insanity. The fact that a practice is

followed by a large number of states is not conculusive

in a decision as to whether that practice accords with

_due process, but it is plainly worth considering in de-

termining whether the practice ‘offends some principle

of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental.’ Snyder v.

Massachusetts, 291 U.S..97,. 105. [78 L.Ed. 674, -677,

54 S.Ct. 330, 90 A.L.R. 575] (1934).-(F'n. omitted.) The

court then concluded (at p. 799 [96 L.Ed. at p..1809]),

‘We are therefore reluctant to interfere with Oregon’s

determination of its policy with respect to the burden

of fitdof on the issue of sanity since we camnot say that

_ policy violates generally accepted concepts of basic

standards of justice.’

“The draftsmen of model acts have proposed ‘the

adoption, at various times, of each of the three stand-

ards of proof mentioned herein. In 1959 the United

States Children’s Bureau took the view that the stand-

ard should be preponderance of the evidence. (Com-

ment to $19 of the Standard Juvenile Court Act (1959)

5d Nat. Prob. & Parole Assn. J. 370.) In 1966, however,

in a publication quoted and relied-on by the Supreme.

confinement for a substantial period of time likewise requires

observance of basie rules of due process (see Jn re Raner (1963)

“59 Cal.2d 635 [30 Cal.Rptr. 814, 381 P.2d 638] ); vet in an opinion

holding the Fourth Amendment and the exclusionary rule appli-

eable to nareoties addiction commitments (People v. Moore (1968)

69 A.C. 701 [72 Cal.Rptr. 800, 446, P.2d 800]) we asia re-

jected a contention that the state must prove the fact of addie-

tion beyond a reasonable doubt rather than by a preponderance of

the evidence, observing that such proceedings ‘are fundamentally

civil in nature’ (id. at p. 713). The issue, moreover, was purely one

of decisional law, there being no legislative directive on standard

‘of proof in the nareoties addiction commitment statutes. (Welt. &

Inst.. Code, §§ 3000-3305. )

Court throughout its Gault opinion (see, e.g., 387 U.S.

at p. 38 [18 L.Ed.2d at ~ 552], characterizing the work

as ‘authoritative’), the Children’s Bureau recommended

the special civil standard of clear and conv incing evi-

dence as a ‘middle of the road position’ or ‘reasonable

compromise’ between the majority civil standard and

the minority criminal standard. (Standards for Juven-

ile and Family Courts (1966),.U.S. Dept. of Health,

Edueation and Welfare, Children’s Bureau Pub. No. —

437, }). 72). In 1968 the Council of Judges of the Na-

tional Commission on Crime and Delinquency also ree-

ommended the clear and conv ineing evidence standard,

observing that an adjudicatory juvenile hearing ‘is not

bound by the criminal procedure requirement of proof

beyond a reasonable doubt.’ (Model Rules for Juvenile

Courts (proposed final draft, May 1968), rule 26 and

comment thereto.) By contrast, the National Confer-

ence of Commissioners on Uniform-State Laws adopted

the Illinois semen (In re Urbasek (1967) supra, 232

N.E.2d 716) in requiring proof beyond a ile. 9

doubt in pir Rea cases, but remained satisfied with

the clear and convineing evidence standard in deter-

mining neglect or need of treatment, (Uniform Juven-

ile Court Act (final draft, August 1968), § 29.)

“Similar disarray reigns in the recommendations of

the law review writers. Even prior to Gault, contrary

positions had been taken (compare Paulsen, Fairness

to the Juvenile Offender (1957) 41. Minn.L. Rev. 547,

062-563 (disapproving reasonable doubt. standard),

with Antieau, Constitutional Rights in Juvenile Courts

(1961) 46 Cornell L. Q.: 387, 412 (approving reasonable

doubt standard) ); since Gault, the views have: proli-

ferated. Some.authors call for extension of the reason-

able doubt standard to juvenile proceedings (Dorsen

and Rezneck, Jn re Gault and the Future of Juvenile

Law (1967) 1 Fam. L.Q. 1, 26-27; Comment, Jn re

Gault and the Persisting Questions of Procedural Due

39 0 oo

Process and Legal Ethics in denen Courts (1968)

47 Neb. L.Rev. 558, 579-580), while others resist such °

a step (Welch, Kent v. United States and In re Gault:

Two Decisions in Search of a Theory (1967) 19 Hast.

L.J. 29, 36-38, 40-45) and criticize the courts that have

taken it (Note (1968) 19 Syracuse L.Rev. 1041, 1046).

The majori ity, however, propose compromise solutions

of varying content. (See, é.y., Ketcham, Guidelines

from Gault: Revolutionary Requirements: and Reap-

praisal (Y967) 53 Va.L.Rev. 1700, 1713 (a higher stand-

ard of proof than preponderance of the evidence, bu

not reasonable doubt unless right to jury trial is alsq-

granted); Lemert, ‘The Juvenile Court—Quest anc

Realities, In. Task Force Report: Juvenile Delin-

quency and Youth Crime (1967), p. 103 (favoring clear

and convincing evidence standard, with’ reasonable

doubt standard reserved for ‘the most grievous juve- J

nile law violations’) ; Boches, Juvenile Justice in, Cali-

fornia: A re-evaluation (1967) 19 Hast. Lu. 47, 92-93,

102 (preferring reasonable doubt: standard, but ‘at!

least’ clear and convineing ev idence) ; Foster, Notice.

and ‘Fair procedure’: Revolution or Simple Revision?,

in Gault: What Now for the Juvenile Court? (Inst.

Cont. Legal Ha. 1968), pp. 66-67 (reasonable doubt!

standard when deprivation of liberty is threatened,

preponderance of the evidence in other cases) ; George, |

Gault and the Juvenile Court Revolution (Inst. Cont.

Legal Ed. 1968), pp. d8-59 (reasonable doubt standard

in delinquency cases, clear and convincing evidence

standard in neglect cases.) If any lesson ean bei

learned from this diversity of proposals, it is that’

no consensus exists among the scholars to support the

proposition that Gault requires the use of the reason-

able doubt standard.n juvenile procee dings.

“In the light of the foregoing analysis, we cannot.

conclude that the staridard of proof provision of Wel-

fare and Institutions Code section TOL (afte, tn. 7) is

‘clearly, positively and unmistakably’ unconstitutional, —,

, : - 7 ‘ ”

‘| Lockheed Averett Corp. v. ‘Superior Court (1G)

supra, IS UallM as), asa.) Accordingly, inthe absence

of &@ specitic rulime on the isstie by the UnitedsNtntes

“Suprvine Court, we adhere to the pre Gault view of

our yourts that the estalilished standard Ts -valid and

‘No comstitutional fughts of the appellant have been

+ MmErited by the wee of the preponderance of evidences

~ test te ele teriine the truth of the allewation thiat he

Thad comnts’ a erie” (dn ee Johnson (EMD sapere,

BT Cal Apacgd 87, 409" Jn Re Dennis M.. 71 A. at

Wi 7H. . ‘ . ; ak ; :

Shorts alter’ the dhocusten an Dennis M.. the highest court

‘of the: State of New Vtwk reached the site Comelusion. ln

thy Matton of Samuel WoNo G16, NV 2d, (Mi):

As pointed out in Meee. WM beth courts and commentators

Dave feached diMerebt oon Kasions as tee the standare whieh

shrakd “be eased We dhe mot azine that reasonable Hien

vannet hi Mer as ter whee h standard ts Winest on dyist Wwe du

rae” thts (curt ts defers ty the legislative juedserneaites of

the several states, ard permit Che continued re evaduation:

amet ovolubian of the laws dealing with juve les fe proces

Without Uttteoes tars sometitutional rigidity e

“) "The eviminal baw test shoul be contin) to eviminat

*. Trea te Mey satel " reasenabls eoubt’ ivy device

tie Prrevynd pram ratirvnent rm Tne rong cases tn a jUventle

vase the wine ex mist penal nen bt pelatbtitation: the

tisk of” Castine To at Juar’ lee wtentes thiits the Fisk

eet doting (er yurekls This o& mot te wie Miatownds heey,

be tert phewebyed, Tyas webely That the COMPO af

erhot ate met ‘4Nie me me Hee mo piverile Cie anil

‘therefore wh mesh matt In guts se cenmtioiue Pantheon,

Pinsvae et td the Serves Offender, AV Minn. Rev

My. Re! ti « 1a, - 4

Moreover, we are dealing in juvenile proceedinigs with

a trained judge. Thus, the: differences in formulation of a

burden of preof standard may be more apparent than real.

While a jtiry may have to be impressed with the serious-.

Iress and burden of fact. finding | In a-eriminal case, the puve-

nile judge is aware of both the problem and the conse

quences, Therefors, however the burden of, proof is formu-

lated, the court is likely to reach the same proper result:

Thus any merensed risk of error Is extremely sinatl, if it

eNists at all, We submit that it: is no violdtion of “due

process te defer to the legislative judgment as to which

risk is. greater, | .

ae CONCLUSION —

_ The problems of treating neglected, potentially delin

quent and delinquent children cannot be adequately dealt -

with by forettig the proceedings into a criminal mold or

by anaking the applicability of the criminal label depend

on the potential disposition. Children and their parents are

entitled ‘to due process and fair proceedings whenever the’

state seeks to interverfe in their relationship or to institu

tionalize the child. ‘To recognize this, however, does not and

should not: compe! the Unposttion of- procedure x developed:

to deal with the different problems 6f adults:charged with

crimes, Juvenile proceedings, when carefully developed as

in California, are sue generis and represent considered

legislative judsgmenit as to the best way to deal ina rational

and humane manner with the complex problems involved

We urge ‘that this Court defer to the degislative judsuient

that the s¥stem than evolve: tis Jiecuseary to dea! with

the problem. *

Thomas C. Layne i

Atterney Ge eral of the Stats

of California

Mawace W. Hannes, Ju.

Nesiatunt Attorne tw“ uetal

Drnsto lk. Ginanwene .

P Drerpraty Nitorney General

dinonia bY De bbant

Deputy Attornew General

gbttorn ws for the Peay

‘the State of Calttors

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