# Amicus Curiae Brief — DeBacker v. Brainard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1347%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 396 U.S. 28 ## Text “" 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 » P ve : @e ’ P . * 4 ¥ ; * ’ . . . ; . . Ad 1d . . % ‘ > j ; ° ad ; es * . TOPICAL INDEN a ee ; A o Mage. ‘ ° - ; o, ad ett, - . . iyrest of Atiieus Curiae, . | ° - . , e . 7 s ae * s. mina Argument . tas ms ! 5 . Wi e 7 . F - ‘ * : ‘ P ° a “@* - 4 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 . w * : —s ‘* ; 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 ” , . *e . 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 ’ . . ted 1 £ : ; wb duis Tria ye ‘ - . ‘ 7 ° . ’ , . ’ ’ 3 ; ; ° Mandard of Dred ' , ; - a : es ‘ ‘ 7 ° , ’ - Pd . i» : eg . ° ed iuyicens . R : s : Po , A i "a : e P . , ; © . 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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 | ty 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 eu 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 . ‘ *“. ‘ : \ i - 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 . si by 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 — a - 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 ‘ . in ° 3 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 . . a > ‘ 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 e he ¢ ¢ The -Reaple of California have ie Hiterest in the hind che bere enerns We Peetl lie) . > > pote chee rtteesh bes California Waobe ary ‘as . pet wey rh ' } ‘ . niiel hay eh etuel \\.. teat histes & icate a? 7 $ Institutions Code Section 701 tis weiey tTeuset first TT . . 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 | te . 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 6 - 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 9 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. 10 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). 15 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. * - su " 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 19 - 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. 20 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: = >’ as -) 21 “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. 22 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 23 ‘ “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. 24 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 se 25 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 27 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 12 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 4 - 29 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.) 30 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 ® 31 - “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 32 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].) ; 34 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 . 36 “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 37 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) so 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. ) 38 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 41 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, | . * 42 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1347%3A05. Public record. Not legal advice.