Amicus Brief — Breed v. Jones

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1995

ALLEN F. BREED,

Petitioner,

GARY STEVEN JONES,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT.

BRIEF FOR AMICUS CURIAE

NATIONAL COUNCIL OF JUVENILE

COURT JUDGES

ALFRED L. SCANLAN

I. MICHAEL GREENBERGER

734 Fifteenth Street, N.W.

Washington, D.C. 20005

Attorneys for National Council of

Juvenile Court Judges, Amicus Curiae

Of Counsel:

SHEA & GARDNER

734 Fifteenth Street, N.W.

Washington, D.C. 20005

January 14, 1975

SE NET EE Ee ae ET TTT

Washington, D.C @ CLB PUBLISHERS’ « LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

INTRODUCTORY STATEMENT ................... I

THE INTEREST OF THE AMICUS AND ITS

POSITION ON THE QUESTION PRESENTED ........ 2

A. Interest ofthe Amicus ................... 2

B. The Position of Amicus on the Issues ..... Pere e

SUMMARY OF ARGUMENT ...................... 5

EY ee Gee ee dees debi es en bh bece cas 9

1. THE DOUBLE JEOPARDY CLAUSE PRE-

CLUDES A TRIAL IN AN ADULT CRIMI-

NAL COURT PERTAINING TO THE SAME

OFFENSE FOR WHICH THE DEFENDANT

HAS BEEN ADJUDICATED A_ DELIN-

QUENT IN A JUVENILE COURT ............. 9

A. The Double Jeopardy Clause Has Been

Incorporated into The Fourteenth

Amendment to Apply to State Criminal

Rr er Peer 9

B. Jeopardy Attached in The Juvenile Court

ee dh Whe OREN Shand bb 6 440 ewe 11

C. Double Jeopardy Resulted When

Respondent Was Tried in An Adult

Criminal Court for The Same Course of

Conduct for Which He Was Determined a

Delinquent in The Juvenile Court ............. ly

1. The “continuing jeopardy” doctrine

does not apply to a trial in a

criminal court after a delinquency

determination has been made in a

ROR GUE wc ce hteceweeeescscnces:

2. The policies of the double jeopardy

clause are served by prohibiting the

reprosecution of respondent ..........-.-+. 20

(ii)

Page

Il. THE DETERMINATION OF WHETHER A

DEFENDANT IS ENTITLED TO DOUBLE

JEOPARDY PROTECTION IN A STATE

CRIMINAL COURT SHOULD NOT BE

BASED ON A CONSIDERATION OF

POSSIBLE INDIRECT CONSEQUENCES A

STATE MIGHT SUFFER FROM THE

GRANT OF SUCH A RIGHT .................22

lll. THE CONDUCT OF A TRANSFER HEAR-

ING PRIOR TO A DETERMINATION OF

DELINQUENCY WILL NOT DISRUPT THE

BENEVOLENT ASPECTS OF THE

STATE’S JUVENILE COURT SYSTEM

AND IS REQUIRED FOR FUNDAMENTAL

EE, OG eb th cheese he besetekeseesess 27

A. Requiring A Transfer Proceeding to Be

Conducted Prior to An Adjudication of

Delinquency Will Not Disrupt The Bene-

volent Aspects of The Juvenile Court

he, Ce ee al ae ain du b's Sa 6 6’ 27

1. Most jurisdictions preclude the use of

transfer after a delinquency deter-

mination has been made ............... 27

Most model juvenile court acts and

other authorities preclude or dis-

courage the use of transfer after a

delinquency determination .............. 30

3. As a practical matter, a prior transfer

is the preferable procedure ............. 33

a. Prior transfer will not “engraft™ a

new procedure to, or cause undue

delay in, the juvenile system ......... 34

b. The need for judges who rule on

transfer to recuse themselves

from the delinquency proceeding

T -ischtu ns wawen ss ovcocuae

(iit)

Page

c. The bifurcation process will not

be disrupted by a prior transfer

ee re 39

d. The juvenile court has sufficient

resources to gather all relevant

information about a juvenile at a

prios transferhearing ...........0.. 40

e. Prior transfer will not lead to

unfair plea bargaining .............. 42

B. Allowing The Transfer Hearings to Be

Held after An Adjudication of Delin-

quency Is Fundamentally Unfair to The

DE +s SEGURA SSR ES EDS RS bd 0866 6 60088 43

1. Exposure of the juvenile’s entire case

to the State, which may have the

opportunity to retry the juvenile in a

criminal court, is fundamentally un-

i <peegnese oes ve ees &a 06 64 ¥.06 60% 44

The use of transfer after an ad-

judication of a delinquency creates

an unfair dilemma for juveniles .......... 45

PE 66 CRON ER EOS ohne beset ers nsaveceed 47

TABLE OF AUTHORITIES

Cases:

Bartkus v. Illinios, 359 U.S. 121 (1959) .........00408. 9

Bassing v. Cody, 208 U.S. 386 (1908) ........--.046- . 23

Benton v. Maryland, 395 U.S. 784 (1969) .......... passim

Brown v. Cox, 481 F.2d 622 (4th Cir. 1973) ........ passim

Bryan v. Superior Court, 7 Cal.3d 575, 102 Cal.

Rptr. 831, 498 P.2d 1079 (1972) ........ 12, 18, 32, 45

Bryan v. United States, 338 U.S. 552 (1950) ...... 4. 17

(iv)

Page

Carter v. Murphy, 465 S.W.2d 28 (Mo. Ct. App.

BSTC OTT TTT TT Ce TT CTT Cee 32, Appendix

Collins v. Loisel, 262 U.S. 426 (1923) ............. 11, 23

Collins v. State, 429 S.W.2d 650 (Tex. Civ. App.

DE. &44bdKKO ONES S SORTED SEK CAA EMER SS 13,14

Commonwealth ex rel. Freeman v. Superintendent,

212 Pa. Super. 422, 242 A.2d 903 (1968) ...... Appendix

CSC v. Letter Carriers, 413 U.S. 548 (1973) ............ 23

Donald L. v. Superior Court, 7 Cal.3d 592, 102 Cal.

Rptr. 850, 498 P.2d 1098 (1972) .............. passim

Downum v. U.S., 372 U.S. 734 (1963) ............ passim

Dunn v. Blumstein, 405 U.S. 330 (1972) ............ 7, 25

Epperson v. Arkansas, 393 U.S.97 (1968) ............. 23

Ex parte Lange, 18 Wall. 163 (1873) ..............06. 21

Fain v. Duff, 488 F.2d 218 (Sth Cir. 1973),

petition for certiorari filed, 42 U.S.L.W. 3667

(June 4, 1974) (No. 73-1678) ..........50005- 12, 16

Fonesca v. Judges of Family Court, 59 Misc.2d 492,

POP UM SUP QUUEED vvcccersccceseccese 13,14

Fung Foo v. United States, 369 U.S. 141 (1962) ......:.. 10

Gallegos v. Colorado, 370 U.S. 49 (1962) ............... 21

Garza v. State, 369 S.W.2d 36 (Tex. Cr. App. 1963).... 14, 16

Gori v. United States, 364 U.S. 367 (1961) ............ 41

Grafton v. United States, 206 U.S. 333 (1907) ..... 10, 11,12

Green v. United States, 355 U.S. 184 (1957) ...... 17, 18, 21

Griswold v. Connecticut, 381 U.S. 479 (1965) ....... 23, 25

Haley v. Ohio, 332 U.S. 596(1948) .................. 21

Hultin v. Beto, 396 F.2d 216 (Sth Cir. 1968) . ...... 14, 16

In re Benny G., 24 Cal. App.3d 371, 101 Cal. Rptr.

ew EEOC OE TPE UETE ETS Teer Oe OT Ter eT 12,14

In re G.D.K., 30 Colo. App. 54, 491 P.2d 81

AR KMUN 9454 eS eee baebaeke6e bes cde 13

(v)

Page

In re Gary Steven J., 17 Cal. App.3d 704, 95 Cal.

Rptr. 185 (1971), habeas denied, sub nom.,

Jones v. Breed, 343 F. Supp. 690 (C.D. Cal.

1972), rev'd, 497 F.2d 1160 (9th Cir. 1974) ...... passim

Se. ae Ges 6 GD. 0.6K so eeb os ta ece ees passim

In re Gladys R., 1 Cal.3d 855, 83 Cal. Rptr. 671,

ee eer ee eee 39

In re Juvenile, Mass. , 306 N.E.2d 822

Pe ove8se0usendbasehenaet 12, 18, 32, Appendix

In re Mack, 22 Ohio App.2d 201, 260 N.E.2d 619

SP snedths HOEROWOS se bESae Re eee kee 13, 32, 33

In re Nielsen, 131 U.S. 176 (1889) ............. 10

In re P.H., 504 P.2d 837 (Alaska 1972) ........... Appendix

In re P.L.V., 176 Colo. 342, 490 P.2d 685 (1971) ........ 13

In re William M., 3 Cal.3d 16, 89 Cal. Rptr. 33

SA eT Ply Cer eT ee Te eT ee 35

in re Winship, 397 U.S. 358 (1970) ........ececeee passim

Jones v. Breed, 343 F. Supp. 690 (C.D. Cal. 1972),

rev'd, 497 F.2d 1160 (9th Cir. 1974) ........... passim

Kepner v. United States, 195 U.S. 100 (1904) ........ 6,18

Kramer v. Union Free School Dist., 395 U.S. 621

EP Aerrry Terre Tr TrTeTreyT TTT TT 25

Lewis v. Commonwealth, 214 Va. 150, 198 S.E.2d

629 (1973), habeas granted, sub nom., Lewis v.

Howard, 374 F. Supp. 446 (W.D. Va. 1974)... . ee. 15

Lewis v. Howard, 374 F. Supp. 446 (W.D. Va.

BE 6p dak beknekevesetasewewns 12, 16, Appendix

Loving v. Virginia, 388 U.S. 1 (1967) ........020 20 ees 23

McKeiver v. Pennsylvania, 403 U.S. 528 (1971) ....... passim

Monroe v. State Bar, 55 Cal.2d 145, 10 Cal. Rptr.

B57, TD TDS SIP CG) ccc cccevvcdescesevens 43

Newman v. United States, 410 F.2d 259 (D.C. Cir.

1969), cert. denied, 396 U.S. 868 (1969) ........---: 11

(vi)

Page

North Carolina v. Pearce, 395 U.S. 711 (1969) .......... 10

People v. Friason, 22 Ill.2d 563, 177 N.E.2d 230

ee te eee ek bec essecccecs 11

People v. Wilson, 7 Ill. App.3d 158, 287 N.E.2d 211

EEE EE 23

Price v. Georgia, 398 U.S. 323 (1970) ............ passim

Richard M. v. Superior Court, 4 Cal.3d 370, 482

P.2d 664, 93 Cal. Rptr. 752 (1971) ............ 13,14

Robinson v. Neil, 409 U.S. 505 (1973) ......... 10, 12, 24

Roe v. Wade, 410 U.S. 113 (1973) ..........4-. 7, 23, 25

Sawyer v. Hauck, 245 F. Supp. 55 (W.D. Tex.

ELIE ELE OD ae 14

Shapiro v. Thompson, 394 U.S. 618 (1969) ......... 23, 25

State v. Gibbs, 94 Idaho 908, 500 P.2d 209(1972) ...Appendix

State v. Halverson, 192 N.W.2d 765 (lowa 1971) _ . . 13, 14, 40,

Appendix

State v. Marshall, 503 S.W.2d 875 (Texas Civ. App.

tt pittance Shee wen Se Seb evocceecs 12,14

State v. R.E.F., 251 So.2d 672 (Fla. App. 1971),

aff'd, sub nom., R.E.F. v. State, 265 So.2d 701

(Fla. 1972), habeas granted, sub nom., Fain v.

Duff, 364 F. Supp. 1192 (M.D. Fla. 1972), affd, .

488 F.2d 218 (Sth Cir. 1973), petition for

certiorari filed, 42 U.S.L.W. 3667 (June 4, 1974)

Dt Close ete CCG bee pdb ee eeeeuceccoss 13

Thompson v. United States, 155 U.S. 271(1894) ........ 41

Tinker v. Des Moines School Dist., 393 U.S. 503

EE a re 23

Tolliver v. Judges of Family Court, 59 Misc.2d 104,

UEP EEE cccedesocccccccesecs 13,14

United States v. Ball, 163 U.S. 662 (1896) .......... ua

United States v. Dickerson, 168 F. Supp. 899

(D.D.C. 1958), rev'd on other grovads, 271

DP Ec ccceercecesecsceeess 12

(vii)

Page

United States v. Ewell, 383 U.S. 116 (1966) ............ 17

United States v. Jorn, 400 U.S. 470 (1971) 2.2.2... passim

United States v. Lewman, 334 F. Supp. 612 (E.D.

EES EE ee ee 1]

United States v. Levy, 268 U.S. 390 (1925) .......... 5,11

United States v. Sisson, 399 U.S. 267 (1970) ........ 10, 18

United States v. Tateo, 377 U.S. 463 (1964) ........... 17

Wade v. Hunter, 336 U.S. 684 (1949) ............065. 4)

Waller v. Florida, 397 U.S. 387 (1970) ............ passim

Constitutions and Statutes:

er hha ae kb ietecheecnsesess< 10

U.S. Code, tit. 18, §5032, as amended by P.L.

Dl ieee ee ek eee eeeb bh eeesses Appendix

rn On, CE OO EUOEED ccccccccccecces Appendix

on. a eee chen eseees Appendix

Alaska R. of Juv. Pro. 3(a) (1974) ...........4.. Appendix

Ee Appendix

Ark. Stat. Ann. § 45-224 (1964) ............45. Appendix

Cal. Welf. and Inst’ns. Code § 602 (Supp. 1973) ........-.- 3

Cal. Welf. and Inst’ns. Code § 632 (1972) ...........05- 35

Cal. Welf. and Inst’ns. Code § 635 (1972) ...........005- 35

Cal. Welf. and Inst’ns. Code § 636 (1972) ..........005- 35

Cal. Welf. and Inst’ns. Code § 707 (1972) .... 39,41, Appendix

Cal. Welf. and Inst’ns. Code § 780 (1972) ..........558. 41

Cal. Welf. and Inst’ns. Code § 1731.1 (1972) .......45-- 41

Colo. Rev. Stat. Ann. § §22-3-6(4)a)-(c)-8(1)

GEES Oe 42, Appendix

Conn. Gen. Stat. Ann. § 17-60(a) (Supp. 1974) ..... Appendix

Page

ee Ge, GR, TA ED cwcccccececvcoocs Appendix

Del. Code Ann., tit. 10, §938 (Supp. 1972) ....... Appendix

Fla. Stat. Ann. § 39.09(2Ma) (1974) ............ Appendix

Fla. Stat. Ann. § 39.09(2X(g) (1974) ............005- 38

Ga. Code Ann. § 24A-2501(a) (Supp. 1974) ....... Appendix

Hawaii Rev. Stat. § 571-49 (1968) .............. Appendix

Hawaii Rev. Stat. § 571-22(a) (Supp. 1973) ....... Appendix

Idaho Code § 16-1806(1)(a) (Supp. 1971) ........ Appendix

Ill. Ann. Stat., ch. 37, § 702-7(3) (1972) ......... Appendix

Ind. Stat. Ann. § 31-5-7-14 (1973) ............. Appendix

Ind. Stat. Ann. § 31-5-7-15 (1973) ............. Appendix

lowa Code. Ann. § 232.72 (1969) .............. Appendix

Kan. Stat. Ann. § 38-808(b) (1973) ............. Appendix

Ky. Rev. Stat. § 208.170(1) (1972), as amended,

Ky. Rev. Stat. § 208.170 (Supp. 1974) ........ Appendix

Me. Rev. Stat. Ann., tit. 15, §2611(3) (1965) ..... Appendix

Md. Ann. Code, art. 26, § 70-16(a) (1973) ........ Appendix

Mass. Ann. Laws, ch. 119, § 60 (Cum. Supp. 1972) ........ 30

Mass. Ann. Laws, ch. 119, §61 (1969) .......... Appendix

Mass. Dist Ct. R. 85A (1974) ................. Appendix

Mich. Stat. Ann. § 27.3178(598.5(4)) (1974) ...... Appendix

Minn. Juv. R. 8-1(2) (1974) .............0005. Appendix

Miss. Code Ann. § 43-21-31 (1973) ............. Appendix

Mo. Ann. Stat. § 211.071 (1969) .............. Appendix

Mont. Rev. Code § 10.1229 (Supp. 1974) ......... Appendix

Nev. Rev. Stat. §62.080 (1973) ............... Appendix

N.H. Rev. Stat. Ann. § 169.21 Ra Appendix

N.J. Stat. Ann. 2A:4-48(b) SOUND ccccceces Appendix

N.M. Stat. Ann. § 13-14-27(a) (Supp. 1973) ....... Appendix

(ix)

Page

N.C. Gen. Stat. § 7A-280 (1969) ............... Appendix

N.D. Central Code § 27-20-34(i) (1974) .......... Appendix

Ohio Rev. Code Ann. §2151.358 (1971) ..........4..- 30

Ohio Juv. R. 30(A) (1974) 2... 0.6 cee ee ee eee Appendix

Okla. Stat. Ann. tit. 10, § 1112(b) (Supp. 1974). . . 42, Appendix

Oregon Rev. Stat. § 419.482 (1973) ......-.545- Appendix

Oregon Rev. Stat. §419.507 (1973) ........555: Appendix

Oregon Rev. Stat. §419.533 (1973) .........55- Appendix

Pa. Stat. Ann., tit. 11, § 50-325(a) (Supp. 1974) ... . Appendix

R.I. Gen. Laws Ann. § 14-1-40 (1969) ........... Appendix

R.I. Gen. Laws Ann. § 14-1-7 (Supp. 1973) ....... Appendix

S.C. Code Ann. ch. 8, §15-1281.,3 (1962) ....... Appendix

S.D. Compiled Laws Ann. § § 26-8-22.7, 26-114

(Supp. 1974) 2... cece cece cece ee eceene Appendix

Tenn. Code Ann. § 37-234(a) (Supp. 1974) ....... Appendix

Tenn. Code Ann. § 37-234(e) (Supp. 1974) ....... Appendix

Tex. Fam. Code § 54.02(a)(2) (1973)... .-.-5-5s Appendix

Utah Code Ann. § 55-10-86 (1973) .......-.+4.- Appendix

Utah Code Ann. § 55-10-105(3) (1973) ......-.4.-.- Appendix

Va. Code Ann., §16-176(aX2) (Supp. 1974). . - --- Appendix

W.Va. Code Ann. § 49-5-14 (1966) .......-5+55: Appendix

Wisc. Stat. Ann. § 48.18 (Supp. 1974) ........--. Appendix

Wyo. Stat. Ann. § 14-115.38 (Supp. 1973) ....-.--- Appendix

Wyo. Stat. Ann. § 14-115.38(c) (Supp. 1973) ... 38, Appendix

Miscellaneous:

American Bar Association and Institute for Judicial

Administration Juvenile Justice Standards Pro-

ject, Standards on Waiver of Juvenile Court

Jurisdiction, § 2., (e) (Tentative Draft December,

. BRPPPPTTELETIUT TTL 32

(x)

Page

American Bar Association Standards, The Pros-

ecution Function §§4.1(c), 4.2 (Approved

DC 6nsnebeen uns 0 ks 000008400080 0004 43

| Annals of Congress 434 (June 8, 1789) ...........044. 19

Antieau, Constitutional Rights in Juvenile Courts,

SG Ge BP UTED th vec cece eteccses 13, 32

Carr, The Effect of the Double Jeopardy Clause on

Juvenile Proceedings, 6 U. Toi. L. Rev. 1 (1974)... . passim

California Juvenile Court Deskbook, §10.4 (Cal-

ifornia College of Trial Judges 1972) ........... 29, 36

Davis, Rights of Juveniles: The Juvenile Justice

ED Stt00 d4eun ees cuseseutesscewes 3

Levin and Sarri, Juvenile Delinquency: A Com-

parative Analysis of Legal Codes in the United

States (National Assessment of Juvenile Cor-

I ni a as i i eg Ca ll 35

Model Rules for Juvenile Courts (National Council

on Crime-and Delinquency 1969) ................. 31

Note, Twice in Jeopardy, 75 Yale L.J. 262 (1965) ....... 21

Note, Double Jeopardy and the Waiver of Juris-

diction in California’s Juvenile Courts, 24 Stan.

ee ED 84d WES wbOSb¥- 66000 60008% passim

The President's Commission on Law Enforcement

and Administration of Criminal Justice, Task

Force Report, Juvenile Delinquency and Youth

DE. 2icktdnedenend kone or ceseeenees 42

Rudstein, Double Jeopardy in Juvenile Proceedings,

14 Wm. and Mary L. Rev. 266(1972)..... 13, 16, 32, 45

Sheridan, Legislative Guide for Family Drafting and

Juvenile Court Acts §31(a) (Children’s Bureau,

Department Health, Education & Welfare, 1969) ...... 31

(xi)

Standard Juvenile Court Act §13 (National Council

on Crime and Delinquency and National Council

of Juvenile Court Judges, 6th Ed. 1959) .........

Uniform Juvenile Court Act, 9 Uniform Laws Ann.

TE: ocinc 6 gob 6 64.65 009 6000%

Whitebread and Batey, Juvenile Double Jeopardy,

(submitted to the Illinois Law Forum for

Spring, 1975 publication) .........--+-+++ees

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-1995

ALLEN F. BREED,

Petitioner,

GARY STEVEN JONES,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT.

BRIEF FOR AMICUS CURIAE

NATIONAL COUNCIL OF JUVENILE

COURT JUDGES

INTRODUCTORY STATEMENT

This brief amicus curiae is submitted, pursuant to

written consents of both parties filed with the Clerk, on

behalf of the National Council of Juvenile Court

“”

Judges.' The facts of the case, the pertinent constitu-

tional and state statutory provisions, the questions

presented, and the various opinions rendered below are

set out in the petition for certiorari, petitioner's brief,

and the joint appendix which have been filed with the

Court.? The amicus accepts them for the purposes of

its own brief.

THE INTEREST OF THE AMICUS AND

ITS POSITION ON THE QUESTION

PRESENTED

A. Interest of the Amicus. The National Council of

Juvenile Court Judges is an unincorporated association.

More than 1500 of its members are judges vested with

jurisdiction to determine juvenile cases in the various

states and the District of Columbia. The judges who are

members of the Council handle approximately 90% of

the juvenile cases that are filed each year in the courts

of the Nation.

It has long been the Council’s position that the

informality and flexibility which are needed to fulfill

adequately the juvenile court’s rehabilitative functions

must be carefully circumscribed by essential fairness. In

pursuing this objective, on various occasions the Council

has provided legislatures and courts of last resort with

'Hereinaier referred to either as “amicus” or the “Council”.

?The decisions below which have been printed are officially

reported as follows: Jn re Gary Steven J., 17 Cal. App.3d 704, 95

Cal. Rptr. 185 (1971), habeas denied, sub nom., Jones v. Breed,

343 F. Supp. 690 (C.D. Cal. 1972), rev'd, 497 F.2d 1160 (9th Cir.

1974).

its members’ collective knowledge about the practical

problems arising from the special place that the law

assigns to children.

B. The Position of Amicus on the Issues. The central

issue in this case is whether the double jeopardy clause

should have barred the trial of respondent in a criminal

court on the same charge for which he was adjudicated a

delinquent’ in a juvenile court. The Council urges the

Court to hold that the double jeopardy protection does

bar a criminal trial after a juvenile has been adjudicated a

delinquent in a juvenile court.

The double jeopardy problem arose in this case

because the juvenile court below followed a procedure

now used in a minority of states: ie., it transferred

respondent to a criminal court after he had been

adjudicated a delinquent in the juvenile court. If this

Court bars the resulting criminal trial, as a practical

matter, it will require the practice now followed in a

majority of the states, the District of Columbia, and the

*In most jurisdictions a juvenile is “delinquent”, inter alia, if

he has violated a federal, state, or local criminal statute. See, e.g., Cal.

Welf. and Inst’ns. Code §602 (Supp. 1973). Delinquency

is determined at a hearing which is the equivalent of a criminal

trial, except that the juvenile has no right to a jury

determination. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528

(1971); Brown v. Cox, 481 F.2d 622, 630 (4th Cir. 1973).

*In nearly every jurisdiction, the juvenile court has the

authority to terminate its proceedings and refer the juvenile for

prosecution as an adult. See statutes cited in Davis, Rights of

Juveniles: The Juvenile Justice System 105-109 (1974). This

process has been referred to as certification, referral, bindover,

waiver, and transfer. For the purposes of this brief, the process

will be termed “transfer.”

federal government of transferring juveniles to an adult

court before a hearing on the issue of delinquency. In this

brief, we refer to the more prevalent practice of transfer

before an adjudication of delinquency as a “prior

transfer,” and urge that its use best safeguards the

interests and rights of juveniles.

Although claims of inefficiency and inconvenience are

of doubtful relevance when a defendant asserts an

~ established and fundamental constitutional right im 4

criminal court, petitioner raises such claims about prior

transfer as justification for withholding the double

jeopardy right from respondent. A/nicus, consisting largely

of practicing juvenile court judges who have extensive

experience with the everyday functioning of juvenile

courts, is uniquely qualified to put to rest petitioner's

contentions in this regard. Amicus agrees with Congress,

and the majority of the state legislatures, scholars, and

experts, who not only believe that the requirement df

prior transfer will not significantly interfere with the

operation of the juvenile justice system, but also that it

is the most efficient transfer procedure to be used in

juvenile courts. Therefore, the Council urges this Court

to affirm the decision below. A reversal could have

far-reaching detrimental effects to our system of juvenile

justice, both from the standpoint of the operation of

juvenile courts and the protection of the rights of

juveniles.

SUMMARY OF ARGUMENT

A. Amicus agrees with respondent’s assertions that

the double jeopardy clause of the Fifth Amendment

should have protected him from a trial in a California

criminal court on the same charge for which he was

adjudicated a delinquent in a California juvenile court.

This Court has held that the federal double jeopardy

protection applies to state criminal courts through the due

process clause of the Fourteenth Amendment. Benton vy.

Maryland, 395 U.S. 784 (1969). Moreover, the Court

has concluded that the protection not only bars retrial

within the same criminal court system, but it also bars

a trial in a state criminal court when initial jeopardy

attached in a non-criminal proceeding within the same

state. See, e.g, Waller v. Florida, 397 U.S. 387 (1970).

Therefore, if the Court finds that jeopardy attached in

the California juvenile proceeding below, it must hold

that it was error for respondent to be retried in the

California criminal court.

B. An accused is placed in jeopardy during any

governmental proceeding in which the tribunal has

authority to impose serious restrictions on liberty. See,

e.g., United States v. Levy, 268 U.S. 390, 393-94

(1925). This Court has often held that a juvenile court

can impose severe restrictions upon a juvenile’s liberty

after a finding of delinquency has been entered. See,

e.g., In re Gault, 387 U.S.-1, 36, 50 (1967). Therefore,

as petitioner has conceded below and in his brief before

this Court, jeopardy attached during the proceedings in

which respondent was found delinquent.

C. The “‘continuing jeopardy” doctrine, approved in

Price v. Georgia, 398 U.S. 323 (1970), does not apply

to the instant case. That doctrine has been limited by

this Court to a retrial after an appeal, see, e.g., Kepner

v. United States, 195 U.S. 100 (1904), because it is

premised on a theory of “limited” waiver. 398 U.S. at

325 n. 4. Respondent did not “waive” his double

jeopardy right in the instant case. It was the juvenile

court, not the respondent, who sought his transfer to

an adult court. Moreover, the policies underlying —

continuing waiver — the prohibition of a retrial on a

more serious offense and the fear of allowing the guilty

to go free — have no application to the case at bar.

Finally, the fact that respondent was not sentenced

in the juvenile court system is irrelevant. The double

jeopardy clause not only protects against multiple

punishments, but against multiple trials. /d. at 331. A

major policy underlying the clause is the prevention of

“theavy personal strain’’ stemming from retrials for the

same offense. See, e.g., United States v. Jorn, 400 U.S.

470, 479 (1971). Certainly, respondent was placed

under great strain when forced to defend himself in

separate court systems.

Petitioner asserts in the alternative that even if the

continuing jeopardy doctrine does not apply, the

second trial should be allowed because to find

otherwise might have an adverse indirect impact on the

juvenile court system. However, adverse consequences

to juvenile courts are not relevant in this case, for the

right at issue has already been incorporated into the

Fourteenth Amendment and applied to State criminal

courts to bar retrials after convictions in non-criminal

proceedings. See, e.g., Waller v. Florida, supra.

But if this Court finds that it must consider collateral

and indirect consequences to juvenile courts to

determine whether respondent’s criminal trial should

have been barred, it should not adopt the test suggested

by petitioner. Borrowing a standard from In re Gault,

supra, In re Winship, 397 U.S. 358 (1970), and

McKeiver vy. Pennsylvania, 403 U.S. 528 (1971),

petitioner would disallow the application of the double

jeopardy right to the adult court, because the exercise

of that right requires a transfer before a delinquency

determination in a juvenile court. Petitioner claims

such a requirement would disrupt the juvenile court.

However, Gault, Winship, and Mc Keiver are inapplica-

ble to this case because they involved situations in

which juveniles wanted to assert certain rights where

those rights had never before been recognized — in a

juvenile court. Here respondent seeks to assert a

fundamental right in an adult criminal court, where the

right clearly applies. The State, at a minimum, would

have to demonstrate a compelling interest to defeat the

applications of such a recognized right. See, e.g., Roe v.

Wade, 410 U.S. 113 (1973); Dunn yv. Blumstein, 405

U.S. 330 (1972).

However, petitioner can show neither a compelling

state interest to allow the continued use of transfer to

an adult court after an adjudication of delinquency nor

that the use of a transfer before a delinquency

adjudication would seriously disrupt California’s juvenile

justice system. Further, it is clear that the use of

transfer after a delinquency hearing is fundamentally

unfair to juvenile defendants.

A. The most significant evidence demonstrating the

acceptability of a transfer before an adjudication of

delinquency is that the procedure is required in

twenty-eight states, the District of Columbia, and the

federal courts. Only two states require that the transfer

hearing be conducted after an adjudication of delin-

quency, and between three and fifteen jurisdictions

permit the latter practice. Also, all recent model

juvenile court acts and almost every legal commentator

who has addressed this issue recommend the use of

transfer prior to a delinquency determination.

B. The practical problems raised by the petitioner

concerning the use of transfer prior to a delinquency

determination are not significant, even to authorities in

California, as is evidenced by the fact that the California

Supreme Court, the California College of Trial Judges,

and the former presiding judge of the Los Angeles

Juvenile Court have all expressed a preference for the

use of prior transfer.

C. The use of transfer after conviction is unfair to

the juvenile, and at the same time impedes the juvenile

court’s fact-finding capabilities. When transfer decisions

are made after a determination of delinquency, a

juvenile runs the risk of exposing his entire case to the

state, only to find that he will be retried at a later date

in a criminal court by the same prosecutor. Such

exposure, in and of itself, constitutes a denial of due

process. Moreover, a child, realizing that there is always

a chance he may be transferred to an adult court, may

tend to be reticent with juvenile court officials, thereby

hampering the Court's ability to determine accurately

whether the juvenile is a delinquent and the rehabil-

itiative treatment that may be required.

ARGUMENT

THE DOUBLE JEOPARDY CLAUSE PRE-

CLUDES A TRIAL IN AN ADULT CRIM-

INAL COURT PERTAINING TO THE SAME

OFFENSE FOR WHICH THE DEFENDANT

HAS BEEN ADJUDICATED A_ DELIN-

QUENT IN A JUVENILE COURT.

A.The Double Jeopardy Clause Has Been In-

corporated into The Fourteenth Amendment

To Apply to State Criminal Proceedings.

Respondent claims that the double jeopardy clause of

the Fifth Amendment should have protected him from

a trial in a California criminal court on the same charge

for which he was adjudicated a delinquent in a

California juvenile court. Amicus agrees that if jeopardy

attached at the juvenile court proceeding, then the later

trial of respondent in a criminal court should have been

barred by double jeopardy. _

The double jeopardy clause is “one of the oldest

{procedural guarantees] found in western civilization.””*

It provides: “{N]or shall any person be subject for the

‘Bartkus v. Illinois, 359 U.S. 121, 151 (1959) (Black, J.

dissenting).

same offense to be twice, put in jeopardy of life or

limb....’’ U.S. CONST., amend. V. The clause, inter

alia, proscribes reprosecution pertaining to the same

offense for which an accused has been acquitted® or

convicted.’

In Benton vy. Marvland, 395 U.S. 784, 794 (1969),

this Court held that the double jeopardy prohibition,

which “represents a fundamental ideal in our constitu-

tional heritage...’, is incorporated within the due

process clause of the Fourteenth Amendment and thus

is binding on the states. There is now no question,

therefore, that the protection applies to California

criminal proceedings. Moreover, this Court has made it

clear that the protection applies not only to a retrial

within the same state criminal court, but also to a trial

in a state criminal court when initial jeopardy attached

in a non-criminal proceeding conducted in the same state.

See, e.g., Robinson v. Neil, 409 U.S. 505 (1973): Waller

v. Florida, 397 U.S. 387 (1970). Cf Grafton v. United

States, 206 U.S. 333 (1907).

Respondent, relying upon this well-established body

of law, asserts the right to be free from a trial in a

California criminal court pertaining to the same offense

for which he claims initial jeopardy attached in a

non-criminal proceeding within the same state — his

delinquency hearing in the California juvenile court.

See, eg., United States v. Sisson, 399 U.S. 267 (1970):

Benton v. Maryland, 395 U.S. 784 (1969); North Carolina v.

Pearce, 395 U.S. 711, 717 (1969); Fong Foo v. United States,

369 US. 141 (1962); Green v. United States, 355 US. 184

(1957).

’See, e.g., North Carolina v. Pearce. supra; In re Nielsen, 131

U.S. 176 (1889).

Clearly, respondent has a right to be free from double

jeopardy in an adult criminal court. Indeed, petitioner

concedes respondent’s entitlement to the right: “As an

adult criminal defendant, Benton yv. Maryland clearly

established [respondent’s] right to the protection of the

Fifth Amendment guarantee against double jeopardy.”

Petitioner's Brief at 16. Therefore, if jeopardy attached

in the California juvenile court below, respondent

should not have been tried in the California criminal

court on the same charge for which he was adjudicated

a delinquent.

B. Jeopardy Attached in The Juvenile Court

Below.

An accused is placed in jeopardy during any

governmental proceeding in which the tribunal has

authority to impose serious restrictions upon his liberty.

See, e.g., United States v. Levy, 268 U.S. 390, 393-94

(1925); Collins v. Loisel, 262 U.S. 426, 429 (1923);

Grafton v. United States, 206 U.S. 333, 345-49 (1907);

Brown vy. Cox, 481 F.2d 622, 631 (4th Cir. 1973).®

‘In a jury trial, jeopardy attaches when the jury has been

impaneled and sworn. See, e.g., Downum v. United States, 372

U.S. 734 (1963); Newman v. United States, 410 F.2d 259, 260

(D.C. Cir. 1969), cert. denied, 396 U.S. 868 (1969); United States

v. Lewman, 334 F. Supp. 612, 614 (E.D.Pa. 1971); People v.

Friason, 22 Ill.2d 563, 177 N.E.2d 230 (1961). In a bench trial,

jeopardy attaches when the court has begun to hear evidence. /d.

In this case, “convictions” were entered both at the juvenile and

criminal level, and it is undisputed that jeopardy attaches after

conviction.

Therefore, jeopardy not only attaches during a criminal

trial,’ but also during other non-criminal proceedings,

such as military'® or municipal'' trials, where serious

penalties can be imposed.

This Court has never directly determined whether

jeopardy attaches during a juvenile court adjudication

of delinquency.'? But it has found that such a

proceeding leads to the imposition of serious restric-

tions on liberty. In In re Gault, 387 U.S. 1 (1967), the

Court held that a delinquency adjudication was

“comparable in seriousness to a felony prosecution,”

because the potential disposition, “commitment [to a

juvenile institution,) is a deprivation of liberty. It is

incarceration against one’s will, whether it is called

‘criminal’ or ‘civil’.” Jd. at 36, 50. See also In re

Winship, 397 U.S. 358, 365-366 (1970).

Since Gault, almost every court'? and every legal

"See, eg., United States v. Jorn, 400 U.S. 470 (1971);

Downum v. United States, supra.

See, e.g., Grafton v. United States, supra.

''See, e.g., Robinson v. Neil, supra; Waller v. Florida, supra.

'*In Gault, this court noted with disapproval the fact that

certain states permitted reprosecution after a child had been

adjudicated a delinquent. 387 U.S. at 21-22 n.26.

"See, e.g., Fain v. Duff, 488 F.2d 218, 225 (Sth Cir. 1973),

petition for certiorari filed, 42 U.S.L.W. 3667 (June 4, 1974}

(No. 73-1768); Brown v. Cox, supra, 481 F.2d at 630 (dictum);

Lewis v. Howard, 374 F. Supp. 446 (W.D. Va. 1974); United

States v. Dickerson, 168 F. Supp. 899 (D.D.C. 1958), rev'd on

other grounds 271 F.2d 487 (D.C. Cir. 1959); In re Juvenile,

Mass. ___, 306 N.E.2d 822, 829 (1974); State v. Marshall,

503 S.W.2d 875 (Tex. Civ. App. 1973); Bryan v. Superior Court,

7 Cal.3d 575, 102 Cal. Rptr. 831, 836, 498 P.2d 1079, 1083

(1972); Jn re Benny G., 24 Cal. App.3d 371, 101 Cal. Rptr. 28

commentator'* who has addressed the issue has

concluded that jeopardy attaches when a delinquency

determination is made in a juvenile court. Indeed, the

Supreme Court of California, resting its decision on

California and federal constitutional requirements, has

followed the lead of other courts in this area and has

(1972); Richard M. v. Superior Court, 4 Cal.3d 370 482 P.2d

664, 93 Cal. Rptr. 752 (1971); State v. Halverson, 192 N.W.2d

765 (lowa 1971) (dictum), In re P.L.V., 176 Colo. 342, 490

P.2d 685, 587 (1971), /n re G.D.K., 30 Colo. App. 54, 491 P.2d

81, 82 (1971); Fonesca v. Judges of Family Court, 59 Misc.2d

492, 299 N.Y.S.2d 493 (1969); Tolliver v. Judges of Family

Court, 59 Misc.2d 104, 298 N.Y.S.2d 237 (1969); Collins v. State,

429 S.W.2d 650 (Tex. Civ.App. 1968). Contra, Jones v. Breed, 343

F. Supp. 690 (C.D. Cal. 1972), rev'd, 497 F.2d 1160 (9th Cir.

1974); Lewis v. Commonwealth, 214 Va. 150, 198 S.E.2d 629

(1973), habeas granted, sub nom., Lewis v. Howard, supra. ; State v.

R.E.F., 251 So.2d 672 (Fla. App. 1971) aff'd, sub nom., R.E.F. v.

State, 265 So.2d 701 (Fla. 1972), habeas granted, sub nom., F ain

v. Duff, 364 F. Supp. 1192 (M.D. Fla. 1972), aff'd, 488 F.2d 218

(Sth Cir. 1973), petition for certiorari filed, 42 U.S.L.W. 3667 (June

4, 1974) (No. 73-1678); In re Mack, 22 Ohio App.2d 201, 260

N.E.2d 619 (1970).

'4See, e.g., Carr, The Effect of the Double Jeopardy Clause on

Juvenile Proceedings, 6 U. Tol.L.Rev. 1, 8 (1974) (hereinafter

cited as “Carr”); Rudstein, Double Jeopardy in Juvenile

Proceedings, 14 Wm. and Mary L. Rev. 266, 279-85 (1972)

(hereinafter cited as “‘Rudstein”); Note, Double Jeopardy and the

Waiver of Jursidiction in California’s Juvenile Courts, 24

Stan.L.Rev. 874, 880-81 (1972) (hereinafter cited as “Note’’);

Antieau, Constitutional Rights in Juvenile Court, 46 Cornell L.

Q. 387, 395-98 (1961) (hereinafter cited as “Antieau”). Cf.

Whitebread and Batey, Juvenile Double Jeopardy, (submitted to

the Illinois Law Forum for Spring 1975 publication) (hereinafter

cited as “Whitebread and Batey’’).

held that jeopardy attaches to a delinquency hearing.

Richard M. vy. Superior Court, 4 Cal.3d 370, 482 P.2d

664, 93 Cal. Rptr. 752 (1971). Moreover, petitioner

conceded this point before the Ninth Circuit,’* and has

not raised an argument to the contrary in this

proceeding. '®

Petitioner's concession is sound. A_ holding that

jeopardy does not attach to a delinquency hearing in

the juvenile court would undermine a whole line of

decisions related to the instant case which constitute

the very underpinning of the juvenile justice system.

For example, vitually every court which has had

occasion to address the issue,'’ including the Supreme

Court of California,'* has held that a juvenile cannot be

reprosecuted in a juvenile court on charges for which

the juvenile has been acquitted or convicted in that

court. Basic to these holdings is an initial determination

that jeopardy attaches at juvenile court delinquency

'S497 F.2d at 1166.

'®At several places in his brief, petitioner frames the issue at

hand in a manner which suggests that he is arguing that jeopardy

did not attach in the juvenile court below. See, e.g., Petitioner’s

Brief at 12. But nowhere in the brief does petitioner ever

conclude that jeopardy did nut attach at respondent’s delin-

quency proceeding.

State v. Marshall, supra; In re P.L.V., supra; In re G.D.K..,

supra; State v. Halverson, supra; Fonesca v. Judges of the Family

Court, supra; Tolliver v. Judges of the Family Court, supra;

Collins v. State, supra. Cf. Hultin v. Beto, 396 F.2d 216 (Sth Cir.

1968); Sawyer, v. Hauck, 245 F. Supp. 55 (W.D. Tex. 1965);

Garza v. State, 369 S.W.2d 36 (Tex. Cr. App. 1963).

'SRichard M. v. Superior Court, supra, note 13; Jn re Benny

G., supra, note 13.

proceedings.’ The cases then go on to find that

juveniles are entitled to the protections of the double

jeopardy clause in juvenile courts.

If this Court finds that jeopardy does not attach

during juvenile delinquency hearings, it will not only

have precluded the use of the double jeopardy right by

defendants such as respondent in the instant case, who

are transferred from the juvenile system to criminal

courts, but it will also have precluded a later

consideration of whether the important protection of

double jeopardy applies in the juvenile courts. Of

course, if this Court finds that jeopardy does attach, it

will be free at a later time to decide whether juveniles

may, in fact, assert the double jeopardy right in juvenile

courts.”°

Lower courts have also held, although not uni-

formly,?' ‘hat in states where a prosecutor can

‘Many of the decisions cited above do not make specific

findings that jeopardy initially attached at the first juvenile

hearing. However, such a finding is implicit since the courts

found that the double jeopardy doctrine applies to juvenile

proceedings and they barred retrial after acquittal or conviction.

2°At that juncture, this Court will not simply determine

whether a loss of liberty is at stake during a delinquency hearing.

Instead, it will apply the balancing test formulated in /n re

Gault, supra, In re Winship, 397 U.S. 358 (1970), and McKeiver

v. Pennsylvania, supra, to determine whether juveniles are

entitled to assert the right of double jeopardy in juvenile courts.

For a description of the Gauli-Winship-McKeiver balancing test,

see Part II infra.

21See, e.g., Lewis v. Commonwealth, 214 Va. 150, 198 S.E.2d

629 (1973), habeas granted, sub nom., Lewis Vv. Howard, 374 F.

Supp. 446 (W.D. Va. 1974).

unilaterally waive juvenile eourt jurisdiction by filing an

information or obtaining an indictment in a criminal

court, double jeopardy bars retrial in the latter court if

a delinquency hearing has commenced at the juvenile

level. See, e.g., Fain v. Duff, 488 F.2d 218 (Sth Cir.

1973), petition for certiorari filed, 42 U.S.L.W. 3667

(June 4, 1974) (No. 73-1768); Lewis v. Howard, 374 F.

Supp. 446 (W.D. Va. 1974). Cf Hultin v. Beto, 396

F.2d 216 (Sth Cir. 1968); Garza v. State, 369 S.W.2d

36 (Tex. Cr. App. 1963). A fundamental premise in

these cases as well is that jeopardy attaches at

delinquency hearings in a juvenile court.

If jeopardy is not deemed to attach at a delinquency

proceeding, and therefore double jeopardy protections

are withheld ir both juvenile proceedings and criminal

courts, prosecutors unhappy with a juvenile judge’s

decision wil) be free to reprosecute a juvenile as often

as they wish until they are satified with the disposition.

Thus, it will be the prosecutor, and not the juvenile

court judge, who will be making the sensitive decisions

about the manner in which a child is to be

rehabilitated. Prosecutors are not equipped to play such

a role. Moreover, the trauma a child would experience

if reprosecution were permitted would undercut very

seriously the informal and non-adversary atmosphere

needed by a juvenile court to accomplish its rehabilita-

tive ends.??

Therefore, the Council believes that the over-

whelming majority of courts are correct in holding that

For a further discussion about the problems of allowing a

prosecutor the right to reprosecute without consent of the

juvenile court, see Carr, supra, 6 U. Tol. L. Rev. at 27-28, 32-34;

Rudstein, supra, 14 Wm. & Mary L. J. at 280-81.

jeopardy attaches at a juvenile delinquency proceeding,

and urges that this Court not reverse decisions which

are not now before it by its holding in this case.

C. Double Jeopardy Resulted When Respondent

Was Tried in An Adult Criminal Court for

The Same Course-of Conduct for Which He

Was Determined A Delinquent In The Juve-

nile Court.

1. The “continuing jeopardy” doctrine does not apply to

a trial in a criminal court after a delinquency deter-

mination has been made in a juvenile court.

Petitioner contends that even though initial jeopardy

attached at the juvenile delinquency hearing, and even

though respondent is entitled to double jeopardy

protections in a criminal trial, jeopardy did not attach a

second time at the criminal trial below. Instead,

according to petitioner, jeopardy simply continued from

the proceedings in the juvenile court. In so arguing,

petitioner mistakenly relies upon Price v. Georgia, 398

U.S. 323 (1970), where this Court articulated the

justification for its repeated holding?’ that a retrial

after a reversal upon a defendant’s appeal does not

violate double jeopardy principles. Price held that the

jeopardy that attached at the retrial was a “‘cont-

See, e.g., United States v. Ewell, 383 U.S. 116, 121 (1966);

United States v. Tateo, 377 U.S. 463, 466 (1964); Green v. United

States, 355 U.S. 184, 197 (1957); Bryan v. United States, 338 U.S.

552 (1950); United States v. Ball, 163 U.S. 662 (1896).

inuation” of the original jeopardy which had attached

at the first proceeding.**

As the petitioner concedes,?* this “continuing

jeopardy”’ principle has never been applied to a trial

which did not result from the defendant’s own appeal.

In fact, this Court has expressly refused to extend the

doctrine to a retrial resulting from the Government’s

appeal of a defendant’s acquittal. See, e.g., United

States v. Sisson, 399 U.S. 267, 302-307 (1970): Kepner

vy. United States, 195 U.S. 100 (1904).

In Price, this Court implicitly explained why the

continuing jeopardy doctrine does not apply to cases

such as Sisson and Kepner. It noted that the

“continuing jeopardy” doctrine is premised, inter alia,

on a theory of “limited waiver’: ie., a defendant

“waives” his right to double jeopardy by pursuing an

appeal of his conviction. 398 U.S. at 329 n. 4.7° Of

4Every court which has held that a trial in criminal court

after a post-delinquency transfer does not violate the double

jeopardy protection has relied solely upon the “continuing

jeopardy” doctrine as articulated in Price. See, e.g., In re

Juvenile, supra; Bryan v. Superior Court, 7 Cal.3d 575, 583, 102

Cal. Rptr. 831, 836, 498 P.2d 1079, 1084 (1972); /n re Gary

Steven J., 17 Cal. App.3d 704, 710, 95 Cal. Rptr. 185 (1972).

While the District Court decision below held that jeopardy did

not attach at the juvenile court because it was a “civil”

proceeding, its primary argument related to the continuing

jeopardy principle. Jones v. Breed, 343 F. Supp. 690 (C.D. Cal.

1972), rev'd, 497 F.2d 1160 (9th Cir. 1974).

*SPetitioner’s Brief at 29-30.

Retrial after a successful appeal was originally justified on a

“waiver” theory. See, e.g., Kepner v. United States, supra, 195

U.S. at 131. However, in Green v. United States, supra, 355 U.S.

at 19, this theory was rejected. In Price, however, the theory was

once again adopted by this Court.

course, there was no “waiver” in the instant case,

because respondent did not ask to be transferred to the

adult court. Indeed, it was the State, through the

auspices of the juvenile court judge, which sought the

transfer. Therefore, this case is analogous to a

government appeal after an acquittal, where double

jeopardy does apply.

Moreover, a critical restriction associated with the

continuing jeopardy doctrine is not applicable to a

transfer to a criminal court after an adjudication of

delinquency in a juvenile court. Price specifically held

that at a retrial after a reversal a defendant could not

be charged with a more serious offense than that for

which he was convicted at the first trial. Jd. at 326-330.

But after transfer, unlike a reversal after an appeal,

prosecutors must file a new indictment or information

to commence the adult criminal proceeding, and, at

that time, they are free to allege the violation of a

more serious offense than was initially charged in the

juvenile court. They may be especially likely to do so if

the delinquency hearing revealed that the youth had

committed a more serious offense than was previously

known.

Finally, the strong policy for allowing retrial after an

appeal does not apply in the instant case. The drafters

of the double jeopardy clause contemplated that a new

trial would be permitted after a reversal on appeal to

avoid a hazard to the public by freeing the guilty. |

Annals of Congress 753 (June 8, 1789). The First

Congress directed that the initial version?’ of the clause

27Madison’s version of the clause as initially introduced read:

“No person shall be subject, except in cases of impeachment, to

more than one punishment or trial for the same offense.” |

Annals of Congress 434 (June 8, 1789).

be redrafted because its original language could be

construed to permit a defendant to go free after a

successful appeal. /d.

However, no such hazard exists in this case. The

respondent would not have gone free if retrial had been

barred below. He would have been incarcerated in a

correctional institution until he reached majority. The

inapplicability of the underlying policy of Price to the

present situation is a further reason for holding that the

double jeopardy protection should have been applied to

respondent’s criminal trial below.

2. The policies of the double jeopardy clause are served

by prohibiting the reprosecution of respondent.

Petitioner attempts to bolster his unique extension of

the “‘continuing jeopardy” theory by arguing that no

“policy” of the double jeopardy clause is served if the

reprosecution of a juvenile is barred in an adult court.

According to petitioner, the basic policy of double

jeopardy is to prevent multiple punishments. Therefore,

petitioner argues, the protection applies only if the

defendant has been previously sentenced and not if, as in

the respondent’s case, he has merely been convicted.

Petitioner’s Brief at 24-27.

However, in so arguing, petitioner has ignored the

fact that “the Double Jeopardy Clause... is written in

terms of potential or risk of trial and conviction, not

punishment.” Price v. Georgia, supra, 398 U.S. at 329

(Burger, C.J.) (emphasis added). As Mr. Justice Harlan

said in United States v. Jorn, supra, 400 U.S. at 479:

“The Fifth Amendment's prohibition against

placing a defendant ‘twice in jeopardy’ represents a

constitutional policy of finality for the defendant’s

benefit in federal criminal proceedings. A power in

government to subject the individual to repeated

prosecutions for the same offense would cut

deeply into the framework of procedural protections

which the Constitution establishes for the conduct

of a criminal trial. And society’s awareness of the

heavy personal strain which a criminal trial

represents for the individual defendant is mani-

fested in the willingness to limit the Government

to a single criminal proceeding to vindicate its very

vital interest in enforcement of criminal laws.”

(Emphasis added.)*

While the policy of preventing multiple punishments

may not apply in the instant case, the policy of

preventing “heavy personal strain” is certainly relevant.

Few defendants experience greater trauma than a

juvenile forced to run the gauntlet of procedures in two

separate court systems. The decision below, by

preventing needless retrials, represents an application of

this Court’s traditional sensitivity to constitutional

deprivations experienced by youthful defendants, and

its recognition that those of tender years are more

easily scarred by such deprivations. See, e.g., Gallegos v.

Colorado, 370 U.S. 49 (1962); Haley v. Ohio, 332 U.S.

596 (1948).

Finally, petitioner's contention that the double

jeopardy clause was designed to protect only those

individuals who are twice punished, implies that initial

jeopardy does not attach until a defendant has been

sentenced — a postulate which is directly contrary to

the general rule that jeopardy attaches when the fact

8See also, Benton v. Maryland, supra; Green v. United States,

supra, 355 U.S. at 187; Ex parte Lange, 18 Wall. 163 (1873);

Note, Twice in Jeopardy, 75 Yale L.J. 262, 267 (1965).

finder begins to hear evidence. See, e.g., United States

v. Jorn, supra; Downum vy, United States, supra. Indeed,

it has often been held that a second prosecution is

barred even though the initial trial was never

completed. /d.

In short, the constitutional history, case law, and

policies behind the continuing jeopardy doctrine clearly

indicate that it has no application to the situation

before this Court. The doctrine is a narrow one. This

Court has expressly held it cannot be extended to

circumstances analogous to respondent’s case.

THE DETERMINATION OF WHETHER A

DEFENDANT IS ENTITLED TO DOUBLE

JEOPARDY PROTECTION IN A STATE

CRIMINAL COURT SHOULD NUT BE

BASED ON A CONSIDERATION OF POSSI-

BLE INDIRECT CONSEQUENCES A STATE

MIGHT SUFFER FROM THE GRANT OF

SUCH A RIGHT.

Petitioner asserts that if this Court does not find that

the “continuing jeopardy” principle applies in the

instant case, the otherwise automatic double jeopardy

protection should then be withheld from respondent

because of “the possibility that [such protection] may

have a collateral, yet significant effect on the future

operations of the juvenile court.” Petitioner’s Brief at

20-21 (emphasis added).

The potential disruption which petitioner advances as

sufficient justification to bar the application of double

—_—

jeopardy is that a state juvenile court, wishing to

transfer a juvenile to a criminal court, would be

compelled to decide the transfer issue prior to a

delinquency proceeding. /d. at 36. As petitioner

correctly concludes, only by using the prior transfer can

the resulting criminal trial be consistent with the

mandates of double jeopardy clause. No jeopardy

attaches at the juvenile proceeding in this instance,

because resolution of the transfer issue alone does not

lead to any permanent restrictions upon the accused’s

liberty. See, e.g., Brown v. Cox, 481 F.2d 622 (4th Cir.

1973); People v. Wilson, 7 Ill. App. 3d 158, 287 N.E.2d

211 (1972). Cf. Collins v. Loisel, 262 U.S. 426 (1923):

Bassing v. Cody, 208 U.S. 386, 391-92 (1908).

It is the position of the amicus that if an individual

asserts an established right in a forum to which the

right has already been constitutionally extended by this

Court, possible adverse consequences experienced by a

state are irrelevant. A state’s interests are considered

only when the fundamental right asserted has never

before been recognized,?? or when the boundaries of a

recognized right have never been fully defined.*° The

See, e.g, Roe v. Wade, 410 US. 113 (1973); Shapiro v.

Thompson, 394 U.S. 618, 634, 643 (1969); Loving v. Virginia,

388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479

(1965).

See, eg, CSC v. Letter Carriers, 413 U.S. 548 (1973);

Tinker v. Des Moines School Dist., 393 U.S. 503 (1969);

Epperson v. Arkansas, 393 U.S. 97 (1968). It should be noted

that Gault, Winship, and McKeiver also fit into this latter

caregory. In each of these cases the rights to be asserted had long

been recognized, but never extended to a juvenile court.

_ fundamental right at stake in the instant case, double

jeopardy protection, has certainly long been recognized.

Moreover, this Court has clearly held that the

boundaries of double jeopardy protection extend to

defendants in state criminal courts after jeopardy has

attached in a non-criminal proceeding where loss of

liberty is at stake. See, eg. Robinson v. Neil, supra;

Waller v. Florida, supra.

Petitioner’s argument that the assertion of the double

jeopardy right in a state criminal court can be defeated

if the collateral consequences of that night might

disrupt juvenile processes applies a balancing test similar

to that articulated by this Court in Gault, Winship, and

McKeiver — “whether the application of the right is

necessary to the achievement of ‘fundamental fairness’

and whether it will disrupt the juvenile court system.”

Brown vy. Cox, supra, 481 F.2d at 630. However, as

petitioner notes,*' Gault, Winship and McKeiver are

concerned only with whether certain federal constitu-

tional rights should be extended through the Four-

teenth Amendment’s due process clause to the juvenile

court system. That issue is not present here.

The respondent does not ask that any right be

applied in a juvenile court. He does not assert either a

right to be free from double jeopardy in a juvenile

court or a night to a transfer hearing prior to a

determination of delinquency. He has asserted his right

to be free from reprosecution in an adult court.

The only connection this case has with a juvenile

court is that it involves the question of whether

jeopardy attached at respondent's delinquency pro-

* Petitioner's Brief at 16-17.

ceeding. That question does not deal with the

application of a right to the juvenile court system, for a

mere attachment of jeopardy does not in and of itself

provide any protection to a juvenile. Courts have

recognized this fact, and as described above,*? have

used a test far different from that developed in Gault,

Winship, and McKeiver to determine whether jeopardy

attaches to non-criminal proceedings. It is a simple

inquiry into whether the tribunal can impose serious

restrictions on liberty. It requires no balancing.

If this Court should nevertheless find that it must

consider the collateral consequences of an affirmance,

and balance them against the right asserted in this

matter, the state must meet a more strict standard than

that set out in Gault, Winship, and McKeiver. Those

cases heavily weigh the balancing process in the state’s

favor, because the right in question is to be asserted

within a juvenile court, which is a rehabilitative, rather

than a punitive, tribunal. In the instant case, since

respondent is not asserting his right to double jeopardy

protection in a parens patriae context, the state, to

prevail, must demonstrate at a minimum that it has a

compelling interest to abridge respondent’s double

jeopardy claim.**

?See Part 1(B) supra.

Whenever the assertion of a fundamental right is at stake, a

state must show a compelling interest before it may abridge that

right. See, e.g., Roe v. Wade, supra, 410 U.S. at 153-55; Dunn v.

Blumstein, 405 U.S. 330, 335-37 (1972); Kramer v. Union Free

School Dist., 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394

U.S. 618, 634, 643 (1969); Griswold v. Connecticut, supra, 381

U.S. at 485. It should be noted, however, that these cases all dealt

with rights which either had not previously been recognized or

However, regardless of which balancing test is used,

this Court should find that the double jeopardy right

applies in the instant case. Not only has California no

compelling interest in abridging respondent’s funda-

mental double jeopardy right by the use of transfer

after a delinquency proceeding, but as discussed below,

even under the more lenient standards contained in

Gault, Winship, and McKeiver, respondent’s double

jeopardy rights are paramount, for the use of “prior

transfer” will actually strengthen the benevolent

purposes of the juvenile justice system. Moreover, the

use of prior transfer is necessary to the achievement of

fundamental fairness in juvenile courts.

whose boundaries had not clearly been defined. As we have

mentioned above, petitioner is asserting an established and well

defined right, and therefore, no balancing need occur before the

right can be successfully asserted.

Il.

THE CONDUCT OF THE TRANSFER

HEARING PRIOR TO A DETERMINATION

OF DELINQUENCY WILL NOT DISRUPT

THE BENEVOLENT ASPECTS OF THE

STATE’S JUVENILE COURT SYSTEM AND

IS REQUIRED FOR FUNDAMENTAL FAIR-

NESS. |

A.Requiring A Transfer Proceeding to Be

Conducted Prior to An Adjudication of

Delinquency Will Not Disrupt the Benevolent

Aspects of The Juvenile Court System.

1. Most jurisdictions preclude the use of transfer after a

delinquency determination has been made.

One of the most telling indications that a prior

transfer requirement will have no disruptive effect upon

the positive aspects of the juvenile court system is that

this procedure is already in use in most jurisdictions in

this country. The statutes, rules, or decisions of

twenty-three states,** the District of Columbia** and

the federal government*® explicitly require that transfer

be decided prior to a determination of delinquency,

thereby precluding the use of transfer after a

delinquency determination has been made. Five states

do not allow a juvenile to be transferred to a criminal

court, hence transfer after a delinquency determination

is a fortiori precluded.*’

*See Appendix hereto, column |, infra, for a listing of the

States and the relevant statute, rule, or decision.

$Id.

1d.

"See Appendix, column 2, infra.

Five other states,°* which have not clearly resolved

the issue by statute, rule, or decision, require the use of

prior transfer as a practical matter. The statutes of

these states provide that juveniles may be transferred

without any demonstration that they committed the

crimes with which they have been charged.*® The fact

that no criminal proof is needed to achieve transfer*® is

a strong indication that the state legislatures in question

did not contemplate a full-scale hearing on criminality

prior to transfer.*' These states’ statutes also provide

that no evidence used against a juvenile in a juvenile

court can be introduced in an adult court.*? Therefore,

if juveniles are tried on the delinquency issue in a

juvenile court before transfer, prosecutors cannot use

any of the evidence produced at a delinquency hearing

in a criminal court. Hence, the statutory framework in

these five states is such that the use of transfer after an

adjudication of delinquency is strongly discouraged.

The statutes of twelve other jurisdictions**® give no

Hawaii, Indiana, New Jersey, Rhode Island, and Utah.

See Appendix, column 3, infra.

It has been argued that as a constitutional matter a juvenile

cannot be transferred without a minimal showing of probable

cause that he committed the crime with which he is charged. See,

e.g., Carr, supra, 6 U. Tol. L. Rev. at 25-26. Even if this is so, we

can still infer from a legislature’s failure to require any criminal

showing that the legislature did not intend a hearing on the

delinquency issue prior to transfer.

“"If transfer is conducted after a delinquency determination

has been made, the State will have had to prove at the

delinquency hearing that the juvenile is “delinquent” beyond a

reasonable doubt. /n re Winship, supra note 20.

*2See Appendix, column 3, infra.

431d. at column 4.

ce eg et A A aa

on eee a mae

clear indication of the stage of the juvenile process at

which transfer should take place, and therefore it could

be argued that they permit transfer after a conviction in

a juvenile court. However, it is doubtful that as a

practical matter transfer after a delinquency determi-

nation is prevalent, since there are no reported decisions

arising from these states about this critical issue.

Moreover, one of the twelve states, Connecticut, allows

a transfer only when the juvenile has been charged with

murder, thereby indicating that transfers after a

delinquency proceeding are infrequent.*4

In three states,*S including California, a rule or

decision permits transfer to take place after a

delinquency proceeding has been completed. However,

the fact that the California Supreme Court*® and the

California College of Trial Judges*? have both con-

cluded that prior transfer is preferable casts doubt on

whether the practice of transfer after a delinquency

determination is widespread even in these jurisdictions.

In Donald L. v. Superior Court, 7 Cal. 3d 592, 598,

102 Cal. Rptr. 850 498 P.2d 1098, 1101 (1972), the

California Supreme Court took note that the “usual”

practice was for the juvenile courts to decide the

transfer issue prior to any determination of de-

linquency.

41d

“Sid. at column 5.

“Donald L. v. Superior Court, 7 Cal.3d 592, 598, 102 Cal.

Rptr. 850, 498 P.2d 1098, 1101 (1972).

"California Juvenile Court Deskbook, §10.4 at 148-50

(California College of Trial Judges) (1972).

Finally, only two states** require that transfer be

determined after an adjudication of delinquency. It

should also be noted that Massachusetts, which requires

transfer after a delinquency determination, and Ohio,

which permits the use of this latter procedure, have

strict exclusionary rules precluding the use of any

evidence introduced in the delinquency proceeding in

any other forum.*? As mentioned above, such a

restriction makes a criminal trial almost an impossibility

after there has been a delinquency hearing in the

juvenile court.

In sum, thirty-three states, the District of Columbia,

and the federal government either specifically, or as a

practical matter, preclude the use of transfer after an

adjudication of delinquency. Only two states require

that transfer be held after a delinquency determination,

and between three and fifteen permit the practice.

2. Most model juvenile court acts and other authorities

preclude or discourage the use of transfer afier a

delinquency determination.

Contrary to petitioner’s assertions,°® virtually every

model juvenile court act prohibits the use of transfer

after a delinquency adjudication. For example, section

34 of the Uniform Juvenile Court Act*' specifically

*8See Appendix, column 6, infra.

Mass. Ann. Laws, Ch. 119, §60 (Cum. Supp. 1972); Ohio

Rev. Code Ann. §2151.358 (1971).

Petitioner’s Brief at 49-50.

“Uniform Juvenile Court Act, 9 Uniform Laws Ann. 429

(Master ed. 1973).

requires that transfer be conducted prior to the

delinquency determination. And, while the Standard

Juvenile Court Act,*? published by amicus and the

National Council on Crime and Delinquency in 1959

does not clearly indicate when a transfer hearing should

be held, the latter organization wrote the Model Rules

for Juvenile Courts’? in 1969, which emphatically

mandate that transfer be decided “before the

commencement of the adjudicatory hearings.’** As

evidenced by this brief, amicus agrees with this

requirement. Moreover, section 31(a) of the Legislative

Guide for Drafting Family and Juvenile Court Acts,**

which petitioner describes as “not expressly en-

compass[ing] the transfer situation and thus [not able

to] be read as taking a definite position against transfer

as a dispositional alternative,”*® also explicitly requires

that the transfer hearing be held prior to a hearing on

the merits of a delinquency petition.

In addition, the Juvenile Justice Standards Project, an

advisory panel of juvenile court experts assembled and

sponsored by the American Bar Association and the

Institute for Judicial Administration, has _ recently

approved, on a tentative basis, a standard which

requires that the transfer hearing be held prior to an

*2Standard Juvenile Court Act § 13 (6th Ed. 1959).

53Model Rules for Juvenile Courts (National Council on Crime

and Delinquency 1969).

47d. at Rule 9.

*SSheridan, Legislative Guide for Family Drafting and Juvenile

Court Acts §31(a) (Children’s Bureau, Department of Health,

Education & Welfare 1969).

‘Petitioner's Brief at 49.

adjudication of delinquency.*’? Indeed, almost every

legal commentator®* who has addressed this issue has

concluded, as a matter of constitutional law and of

practicality, that it is preferable to conduct the transfer

hearing prior to a delinquency determination.

Finally, even those courts®*? which have held that

transfer after a delinquency hearing does not violate the

double jeopardy clause have not done so on the ground

that such a transfer proceeding is more practical than

transfers conducted at the outset of the juvenile

*’The American Bar Association and Institute for Judicial

Administration Juvenile Justice Standards Project, Standards on

Waiver of Juvenile Court Jurisdiction, §2.1(e) (Tentative Draft

December, 1974). While this draft must be approved by the

ABA’s House of Delegates before it becomes final, approval by

the Project itself constitutes an important endorsement of prior

transfer.

‘8Whitebread and Batey, supra note 14; Rudstein, supra note

14; Note, supra note 14; Antieau, supra note 14. Contra, Carr,

supra note 14. It should be emphasized that the only situation in

which Professor Carr argues that the double jeopardy protection

should not apply is when a transfer hearing is conducted after the

delinquency proceeding. In all other situations, including when

the youth is transferred after a dispositional order has been

entered (e.g., when the youth has been found delinquent and has

been incarcerated in a correctional institution), Professor Carr

believes the double jeopardy protection should apply.

See, e.g., Jones v. Breed, 343 F. Supp. 690 (C.D. Cal. 1972)

rev'd, 497 F.2d 1160 (9th Cir. 1974); Jn re Juvenile Mass.

, 306 N.E.2d 822, 828-30 (1974); Bryan v. Superior Court, 7

Cal.3d 575, 580-83, 102 Cal. Rptr. 831, 834-36, 498 P.2d 1079,

1082-85 (1972); In re Gary Steven J., supra, 17 Cal. App.3d, at

709-10, 95 Cal. Rptr. at 189-90 (1971); Carter v. Murphy, 476

N.W.2d 28, 31-32 (Mo. Ct. App. 1971); Jn re Mack, 22 Ohio

App.2d 201, 204, 260 N.E.2d 619, 621 (1970).

process. Instead, these courts appear to have rested

their decisions on legal doctrines pertinent to the

double jeopardy protection, and not out of a concern

for the practical workings of the juvenile court.°°

3. As a practical matter, a prior transfer is the

preferable procedure.

This Court’s concern about the benevolent aspects of

the juvenile court system has always focused upon

insuring that the delinquency determination is in-

formal,®! non-adversarial,®°? confidential,°? and free

from any stigma of criminality.°* The conduct of a

transfer hearing prior to the delinquency hearing should

further, rather than detract, from these objectives. If

juveniles are secure in the knowledge that they will not

Almost all of the courts listed in n.59, supra, have rested

their decision on the “continuing jeopardy” principle. /n re

Mack, rested its decision on the ground that jeopardy does not

attach at a juvenile court proceeding. The district court below

only partially based its decision on this latter ground.

®'See, e.g., McKeiver v. Pennsylvania, supra, 403 U.S. at 534;

In re Winship, supra, 397 U.S. at 366-67; /n re Gault, supra, 387

U.S. at 25-27.

See, e.g., McKeiver v. Pennsylvania, supra, 403 US. at 550;

575; In re Winship, supra, 397 U.S. at 375.

®3See, e.g., McKeiver v. Pennsylvania, supra, 403 U.S. at 550;

In re Winship, 397 U.S. at 366-67; Jn re Gault, supra, 387 US.

at 24-25.

“See, e.g., In re Winship, supra, 397 U.S. at 366; Jn re Gault,

supra, 387 U.S. at 23-24.

be transferred to an adult court during or after their

delinquency hearing, common, though often unrealistic,

fears that they will offend juvenile authorities with

recitations of their behavior and background will be

somewhat alleviated. They will not have to worry that

they may suddenly be transferred to a criminal court

because of a candid admission. Cooperation between the

juvenile and the court’s officers will be increased, and the

adversary nature of the delinquency and dispositional

phases of the juvenile process will be reduced. Moreover,

prior transfer will in no way affect the confidentiality of

the juvenile process, nor will it add any stigma of

criminality to the system.

The Council also believes, and will indicate below

that the specific practical problems raised concerning

the use of prior transfer are not of controlling

significance.

a. Prior transfer will not “engraft” a new procedure to, or

cause undue delay in, the juvenile system.

Petitioner asserts that requiring transfer to be

conducted at the outset of a juvenile proceeding will

add a “cumbersome” procedure to the California

juvenile court system. According to petitioner, instead

of ‘merely holding a hearing on delinquency and

conducting a dispositional process at which time the

juvenile can be transferred, the Court will be required

to hold a third hearing—dealing solely with the transfer

issue—prior to the trial on delinquency. Petitioner’s

Brief at 36-45.

However, even the former presiding Judge of the Los

Angeles Juvenile Court, Marvin A. Freeman, in denying

Ne ee ee

respondent’s petition for a writ of habeas corpus,

recognized that the use of prior transfer would not

result in a new and cumbersome proceeding. In this

regard, he said:

“I don’t disagree, counsel, as to what would be

the better procedure is that at the detention

hearing,®*> [which is held prior to the determination

delinquency] the decision be made as to whether

there should be a fitness hearing. At the detention

hearing it is clear that the police report may be

considered, anything probation introduces may be

considered.®® There is no requirement that evidence

be limited to competent evidence, and in the usual

case it should be at the detention hearing.

1 will go further and say I don’t think that the

Juvenile Court would be crippled if there were no

707 as it is now constituted, that is, / don’t know

California, as is true in most states, requires that a detention

hearing be held one judicial day after a delinquency petition is filed

in juvenile court. The purpose of the hearing is to determine

whether the minor should be released pending further hearings.

Cal. Welf. and Inst’ns Code § § 632, 635, 636 (1972). See In re

William M., 3 Cal.3d 16, 89 Cal. Rptr. 33 (1970). See also Levin &

Sarri, Juvenile Delinquency: A Comparative Analysis of Legal

Codes in the United States (National Assessment of Juvenile

Corrections) (1974) at 26-27, for a listing of the 36 states which

provide a similar screening apparatus.

One commentator has noted: “(T]he facts underlying

several juvenile court cases indicate that the probation report is

often prepared and given to the judge prior to the [delinquency |

hearing. Consequently, it is simply a matter of time spent waiting

for the report to be considered by the judge, not a matter of

time spent in preparation.” Note, supra, 24 Stan.L.Rev. at 897.

our operation would really be hampered if the rule

were laid down that at the arraignment or

detention hearing or in any event before the

introduction of evidence at the adjudication the

court may set the matter for a [transfer] hearing.”

Joint Appendix at 43 (emphasis added).

The recognition that prior transfer is preferred to

transfer after a delinquency determination by the

California Supreme Court,°’ by the California College of

Trial Judges,°* and by Judge Freeman, indicates that

many California juvenile courts are using the pnor

transfer at present, and that petitioner’s vision of a

third, cumbersome hearing is unwarranted.

In addition, a prior hearing does not have to be held

in every case. In many situations, a judge can determine

without a hearing that a child should not be

*’Donald L. v. Superior Court, supra note 46.

* California Juvenile Court Deskbook, supra, § 10.4 at 148-50.

transferred. For example, if the child is young, and has

committed a first minor offense, most courts immedi-

ately recognize that no transfer hearing is needed.*®

Finally, even when the juvenile court considers

transfer after a hearing on delinquency, it must hold a

separate transfer hearing. If the child proves he is

amenable to rehabilitation, the juvenile judge would

then consider other dispositional alternatives. Hence, in

such a situation, as when prior transfer is required,

there is a possibility that three hearings—relating to

delinquency, transfer, and disposition—will be held. In

fact, by requiring an early decision on transfer, the

juvenile court may eliminate, rather than add,

procedures. If the juvenile is transferred, there will be

no need for a delinquency or dispositional hearing.

b. The need for judges who rule on transfer to recuse

themselves from the delinquency proceeding is negligi-

ble.

Petitioner also contends that since many of the issues

considered at a _ transfer hearing are _ potentially

prejudicial to a consideration of the juvenile’s guilt”

juvenile court judges using prior transfer will be

“On the other hand, certain juveniles, because of their

recidivism may clearly be candidates for transfer. See, e.g., Note,

supra, 24 Stan.L.Rev. at 898-99. In these situations as well, a

transfer hearing should not be a time consuming process.

The juvenile court judge’s consideration of the juvenile’s

character and background at the transfer hearing might taint his

decision on the issue of whether the juvenile has committed the

crime with which he is charged.

compelled to recuse themselves from the delinquency

hearing. A few jurisdictions do require the reassignment

of a judge after he has chosen not to transfer the

juvenile.”'| However, these jurisdictions also permit the

juvenile, or an interested party, to waive the transfer

judge’s dismissal. ”?

The reason for this waiver provision is clear. A

juvenile will ordinarily not want to dismiss a judge who

has refused to transfer him to a criminal court. There is

a risk of having another judge assigned to the case who

is not as sympathetic. Moreover, in many cases, a

rapport has been established between the judge and the

juvenile, and the goal of rehabilitation is well on its

way to being met. In practice, then, the dismissal of a

judge in this instance would be rare. And, of course,

recusal would not even be an issue where the judge had

transferred the child to a criminal court or where the

judge did not conduct a hearing due to the child’s

obvious amenability to rehabilitation.

But even in situations where recusal does take place,

the supply of judges in large urban jurisdictions would

negate the problem. And, smaller jurisdictions do not

have the volume of juvenile case work that would cause

the recusal situation to arise frequently. Moreover, even

if the problem were to occur, it is not unusual for

"Fla. Stat. Ann. §39.09(2\g) (1974); Tenn. Code Ann.

§ 37-234(3) (Supp. 1973); Wyo. Stat. § 14-115.38(c) (Supp.

1973). See also, Donald L. v. Superior Court, 7 Cal.3d 592, 598,

102 Cal. Rptr. 850, 853, 498 P.2d 1098, 1101 (1972); Uniform

Juvenile Court Act, supra, note 51, § 34(E).

? Id.

judges in sparsely populated localities to cross jurisdic-

tional lines in order to avoid a local judge’s potential

conflict of interest.

c. The bifurcation process will not be disrupted by a

prior transfer proceeding.

Petitioner contends that a prior transfer requirement

would disrupt California’s commitment to a bifurcated

juvenile hearing,”? where the delinquency issue is heard

separately from the dispositional determination. The

juvenile judge, accurding to petitioner, would make

dispositional judgments relating to the child’s back-

ground and social behavior at the transfer hearing,

which could be prejudicial if the issue of guilt must be

decided.

Of course, the California Supreme Court, which

supports bifurcation,” has also indicated a preference

for prior transfer, thereby suggesting that in its view the

two are compatible.”* Moreover, the California statu-

tory provision’ which provides for transfer contem-

plates that issues relating to transfer could be

considered with the delinquency determination since

the trial judge is given the authority to enter a transfer

order at any time during the delinquency hearing.

In re Gladys R., 1 Cal.3d 855, 589-60, 83 Cal. Rptr. 671,

674-75, 464 P.2d 127, 130-31 (1970).

™ Id.

Donald L. v. Superior Court, supra note 46.

*Cal. Welf. and Inst’ns. Code § § 707 (1972).

Finally, this entire issue is easily resolved by a

requirement that juvenile court judges, having passed

upon transfer, must recuse themselves from the

delinquency determination, unless the child waives his

right to the judge’s dismissal. With this resolution, the

juvenile can either opt for complete bifurcation—ie., a

new judge who would determine delinquency and then,

if necessary, consider disposition—or allow the transfer

judge with whom the child may have established a

rapport to hear the issue of delinquency.

d. The juvenile court has sufficient resources to gather all

relevant information about a juvenile at a prior transfer

hearing.

In its petition for certiorari, petitioner complained

that requiring a prior transfer would prevent the State

from “removing disruptive or depraved individuals from

its programs, [thereby ending] a promising experi-

ment.” Petition for Certiorari at 17. By this argument,

petitioner has implied that the State does not have

adequate resources at its disposal to make an informed

judgment about the character of a juvenile prior to a

hearing on delinquency, an implication that has no basis

in fact. As one state supreme court has said:

“(I]f a county attorney is causing juvenile cases

to be investigated properly ... he will know in

advance whether he desires to prosecute criminally

and he can so move the court at or before the outset

of the hearing. He has available the investigative

facilities of the probation officer, the law

enforcement officers, and the social services

staff. ...” State v. Halverson, 192 N.W.2d 765. 769

(lowa 1971).

os a

Moreover, petitioner himself has said that California

juvenile correctional institutions are capable of handling

the worst kind of disciplinary problems.’’ But even if

this were not the case, this amicus believes that the

doctrine of double jeopardy is flexible enough to

permit transfer after an adjudication of delinquency

where information, which could not have been

discovered at an earlier stage, clearly demonstrates that

a youth is not amenable to juvenile treatment.”

7 4 commentator, summarizing an interview with petitioner

Breed, concluded: “[Petitioner Breed] has suggested that his

organization could easily handle [disruptive juveniles who have

mistakenly not been transferred] and has concluded that the

{California Youth Authority] could abide by a system of

irrevocable [transfer] decisions made prior to the attachment of

jeopardy with absolutely no alteration in its current attitudes,

administration, or effectiveness.’ Note, supra, Stan.L.Rev. at

900.

%One major exception to the double jeopardy clause is

found in the “manifest necessity” doctrine: that is, a second

trial is allowed when an unforeseen intervening force causes the

disruption of the initial trial. See, e.g., Downum v. United States,

supra, note 8; Gori v. United States, 364 U.S. 367 (1961); Wade

v. Hunter, 336 U.S. 684 (1949); Thompson v. United States, 155

U.S. 271 (1894). The doctrine has been limited to mistrials.

However, it could be argued that if a child withheld important

evidence from the court or juvenile authorities and such evidence

clearly indicated that the youth ought to be tried as an adult, then

the juvenile court might be able to transfer the juvenile to a

criminal court. Also, if a child not transferred proved to be

unpredictably and seriously disruptive after disposition, the

juvenile court might be free, after making suitable findings, to

transfer the youth to a criminal court on the ground of “manifest

necessity.” Indeed, such a ruling is compatible with state statutes

which permit a youth correctional authority to return a child to

the juvenile court if the child is incorrigible. Cal. Welf. and Instn’s.

Code § § 707, 780, 1731.1 (1972).

e. Prior transfer will not lead to unfair plea bargaining.

One commentator®' has suggested that requiring the

transfer decision to be made before a determination of

delinquency will cause an unwarranted increase in a

prosecutor’s plea bargaining power. According to the

argument, if a state has a weak case against a juvenile

with a bad prior record, the prosecutor, knowing that he

will not have to prove delinquency beyond a reasonable

doubt to achieve transfer,®° will be tempted to coerce the

child into pleading guilty by threatening to seek transfer

to a criminal court. The arument continues that a juvenile

to whom such a bargain is extended, uncertain of the

case against him and frightened by the prospect of a trial

in a criminal court, will be especially vulnerable to the

prosecutor’s offer.

” Carr, supra, 6 U. Tol. L. Rev. at 49-51.

“if the transfer hearing is held prior to a hearing on

delinquency, the prosecutor, in some states, does not have to

present any evidence demonstrating that the juvenile committed

the offense with which he is charged. See Appendix, column 3,

infra. Cf. n.40 supra. However, in some states the prosecutor

must show that there is probable cause that the juvenile

committed the act with which he is charged. See, e.g., Colo.

Rev. Stat. Ann. § § 22-3-6(4)(a){c)-8(1) (Supp. 1969). A great

many jurisdictions merely require that the seriousness of the offense

be considered in transfer. See, e.g, Okla. Stat. Ann. tit. 10,

§1112(b) (Supp. 1974). However, in all jurisdictions that permit

transfer the fundamental question is whether the child can be

rehabilitated in the treatment facilities available to the juvenile

court. See, e.g., The President’s Commission on Law Enforce-

ment and Administration of Criminal Justice, Task Force Report:

Juvenile Delinquency and Youth Crime, Appendix B, Table 5, at

78 (1967).

It is the view of this amicus, however, that this

hypothetical tactic would be unethical,*' if not illegal.*?

Moreover, the opportunities for questionable plea

bargaining may be worse if transfer is not decided until

after a hearing on delinquency. At that time, a

prosecutor will have been exposed to the juvenile’s case.

Absent a strict exclusionary rule, the chances of

reconviction in a criminal court will be strong. In this

circumstance, prosecutors will be in an_ excellent

bargaining position to obtain a guilty plea *%: a

lesser-included adult offense. And, since there would

clearly be sufficient evidence to convict after a

delinquency proceeding, such bargaining may not be

illegal.

B. Allowing the Transfer Hearings To Be Held

after An Adjudication of Delinquency Is

Fundamentally Unfair to The Juvenile.

In Winship and McKeiver, this Court made it clear

that the necessity of a procedure in a juvenile court is

81 ABA Standards, The Prosecution Function §§4.1(c), 4.2

(Approved Draft 1971). A commentary to the former standard

concludes:

“Although the prosecutor is under no obligation to

reveal any evidence to defense counsel in the course of plea

discussion, truth is required in the presentation of facts

relating to the case or any mitigating facts to the defense

counsel. The prosecutor's basic duty to seek a just result as

well as his obligation to eschew the use of deception in

dealing with the evidence also forbid his misrepresenting

the law or sentencing practices of the court in plea

discussions. .. .”” /d. at commentary to § 4.1(c).

82See, e.g., Monroe v. State Bar, 55 Cal.2d 145,10 Cal. Rptr.

257, 358 P.2d 529, 533 (1961). See also, ABA Standards, The

Prosecution Function, supra, commentary to §4.2 (explaining

requirement in many jurisdictions that the prosecutor prove a

prima facie case as a condition to entry of guilty plea).

measured by the “fairness” it brings to the juvenile

justice process.82 As we demonstrate below, the use of

transfer after disposition is “fundamentally unfair” to

juveniles, and therefore is not needed in that process.

1. Exposure of the juvenile’s entire case to the

government, which may have the opportunity to

retry the juvenile in a criminal court, is funda-

mentally unfair.

The Council believes that the greatest injustice

emanating from the use of transfer after a disposition

of delinquency is that if the juvenile is transferred, the

Government will have had the benefit of reviewing the

juvenile’s case prior to the criminal trial. In its decision

below, the Ninth Circuit stressed this problem:

‘“‘Nowhere in our criminal system do we allow

the prosecution to review in advance the accused’s

defense and, as here, hear him testify about the

crime charged. The most heinous and despicable

criminal is saved from such an invasion of his

fundamental rights. Yet, if we adopt California’s

position, we approve having such a procedure

applied to those of tender years. This offends our

ae of basic even-handed fairness.” 497 F.2d

at 1168.

Some jurisdictions which allow the use of transfer

after a delinquency determination have exclusionary

rules which prevent evidence obtained in a juvenile

In McKeiver, Mr. Justice Blackmun stated: “[T] he applic-

able due process standard in juvenile proceedings is fundamental

fairness, as developed by [Gault] and [Winship].” 403 U.S. at

528.

+ Manas —

process from being used in an adult court.** For

example, California, by case law,®* urges exclusion in a

criminal court of testimony given by the defendant in

the juvenile system. However, this limited rule still

permits the prosecutor to use any evidence that has

been obtained on the basis of the juvenile’s testimony

or to use any other testimony presented with the

juvenile’s case. See, e.g., Carr, supra, 6 U. Tol. L. Rev.

at 53. Hence, California’s limited exclusionary device

does not ameliorate the unfairness a youth may

experience in this regard.

2. The use of transfer after an adjudication of a

delinquency creates an unfair dilemma for juveniles.

If juveniles must wait until they have been tried on

delinquency charges to know whether they will be

transferred to a criminal court, after detention they will

be faced with the cruel decision of whether it is more

likely that they will be transferred if they cooperate with

juvenile authorities or if they remain silent. Some

juveniles, confronting this unfair choice, may tend to be

unduly reticent because of a belief that some aspect of

their behavior or background will be sufficiently

offensive to require transfer to an adult court. Indeed,

For a complete listing of states which provide various types of

exclusionary protection to the juvenile, see Carr, supra, 6 U. Tol. L.

Rev. at 53 and nn. 298-99; Rudstein, supra, 14 Wm. and Mary L. Rev.

at 293 and nn. 118&119.

8S Bryan v. Superior Court, 7 Cal.3d 575, 587, 102 Cal. Rptr.

831. 839, 498 P.2d 1079, 1087 (1972).

their belief may be unrealistic, because juveniles in some

instances are more critical of their own past behavior

than are seasoned juvenile authorities. On the other hand,

juveniles may also be unduly coerced into saying more

than they would wish out of fear that undue reticence, a

possible indication of unrepentance, will lead to transfer.

In this instance, their right to be free from self-

incrimination may be jeopardized because of the

pressures the system places upon them. The Supreme

Court of California recognized the severity of this

dilemma when it said:

“The minor who is subject to the possibility of

a transfer order should not be put to the unfair

choice of being considered uncooperative by the

juvenile probation officer and juvenile court

because of his refusal to discuss his case with the

probation officer, or of having this statement used

against him in subsequent criminal proceedings.”

Bryan yv. Superior Court, supra, 7 Cal. 3d at

587-88, 102 Cal. Rptr. at 840, 498 P.2d at 1088

(1972).

It is highly unfair to expose a juvenile to this kind of

uncertainty. And to the extent that this uncertainty

leads to reticence, the fact-finding process of the

juvenile court is hindered, a process which the plurality

opinion in McKeiver clearly established should never

purposefully be impeded. 403 U.S. at 543.

In sum, a requirement of prior transfer is the only

mechanism which ensures fundamental fairness to the

juvenile. Moreover, it best serves the interests of the

juvenile court system, for in most instances. it is the

most efficient procedure for deciding the transfer issue.

and is best suited to the informal, rehabilitative nature

of juvenile courts. Therefore, this amicus maintains that

—— 7 ee ”

the requirement of prior transfer does not justify

withholding the double jeopardy protection from

respondent, nor has there been any other justification

advanced which would warrant such a result.

CONCLUS!ON

| For the foregoing reasons, the Council urges that the

decision below be affirmed.

Respectfully submitted,

ALFRED L. SCANLAN

I. MICHAEL GREENBERGER

734 Fifteenth Street, N.W.

Washington, D.C. 20005

Attorneys for National Council

of Juvenile Court Judges,

Amicus Curiae

Of Counsel:

SHEA & GARDNER

734 Fifteenth Street, N.W.

Washington, D.C.

January 14, 1975

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