Amicus Curiae Brief — In Re WINSHIP (No. 778)
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Office-Supreme oe US.
DEC 10 1969
- Supreme Court of tf the Unitt Ladin
OCTOBER TERM, 1969
No. 778
IN THE MATTER OF SAMUEL W.
Vv.
FAMILY COURT OF THE STATE OF NEW YORK
ON APPEAL FROM THE NEW YORK COURT OF APPEALS
BRIEF FOR THE NEIGHBORHOOD LEGAL SERVICES PROGRAM
OF WASHINGTON, D.C. AND THE LEGAL AID AGENCY FOR
THE DISTRICT OF COLUMBIA AS AMICUS CURIAE
MARIE S. KLooz,
WoopDLeEY B. OSBORNE,
PATRICIA M. WALD
Attorneys,
Neighborhood Legal
Services Program,
416 Sth Street, N.W.
Washington, D.C. 20001
NORMAN LEFSTEIN,
Deputy Director,
Of Counsel: LAWRENCE H. SCHWARTZ,
James H. COHEN Attorney,
Covington & Burling Legal Aid Agency
888 Sixteenth Street, N.W. 316 6th Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20001
TY
Washington, 0. C. - THIEL PRESS - 202 . 393-0625
(i)
TABLE OF CONTENTS
i PTD. 4.0 b460d4 66 oe dn cn ies 5a 00 O%
Question Presented .. 1... cece eee een nees
a re
Argument:
I. The failure to afford a youth the right to be adjudicated
a delinquent by proof which leaves no reasonable doubt
that he committed the criminal offense with which he is
charged is a deprivation of liberty without due process
and a denial of equal protection of the laws .........
A. An individual convicted of committing a criminal
offense is deprived of his liberty without due process
of law unless the case against him is proved beyond
GS CUUIO GMI is ws ck coke re bec eeeeiacces
B. A convicted juvenile delinquent is deprived of his
liberty in the same manner, and with the same
consequences, as an adult criminal .............
1. A significant body of respected judicial authority
considers the application of the adult standard to
juvenile delinquency determinations a constitu-
CE PE nn ccna cc ccancscenans
2. Legislators, independent committees and comen-
tators have recognized that it is constitutionally
impermissible to deny a youth his freedom on
the basis of the preponderance standard .......
C. The stigmatizing effect of a conviction in the juvenile
court is at least equal to that which stems from a
conviction in an adult criminal proceeding .........
D. The discretionary authority by which a child may be
transferred to an adult court for trial under the reason-
able doubt standard constitutes a denial of equal
| CTT TTT CTCL LETTE
Il. Adoption of the reasonable doubt standard is essential
for the protection of a youth’s privilege against self-
EE BR ace ees enc ceesesenscceneens
—
(ii)
Ill. Adoption of the reasonable doubt standard will aid the
juvenile court system in achieving its laudatory goals by
concentrating the application of its resources on youths
who most need rehabilitation .................., 51
ee PET ee ELLE LEE 56
TABLE OF CITATIONS
Cases:
In re Agler, 249 N.E.2d (Ohio 1969) ................. 20, 22
In re Agler, 240 N.E.2d 874 (Ohio Ct. App. 1968) ..... 20, 21, 22
Agnew v. United States, 165 U.S. 36 (1897) ............. 6
In re Benn, 247 N.E.2d 335 (Ohio Ct. App. 1969) ......... 21
In re Bigesby, 202 A.2d 785 (D.C. Ct. App. 1964) ...... 9, 22, 27
Bloom v. Illinois, 391 U.S. 194 (1968) .............05.. 20
Brinegar v. United States, 338 U.S. 160 (1949) ........... 6, 28
Brooks v. United States, 164 F.2d 142 (Sth Cir. 1947) ...... 7
In re Bumphus, 254 A.2d 400 (D.C. Ct. App. 1969) ....... 27
Caron v. Franke, 121 F.Supp. 958 (W.D.N.Y. 1954) ....... 49
Christensen v. lowa State Highway Comm'n, 110 N.W.2d 573
Ct 65s cee e ee cube cide edaheaes 408s 47
Cities Service Oil Co. v. Dunlap, 308 U.S. 208 (1939) ....... 7
Coffin v. United States, 156 U.S. 432 (1895) ............. 6
Culombe v. Connecticut, 367 U.S. 568 (1961) ........... 46
Davis v. United States, 160 U.S. 469 (1895) ............. 6
DeBacker v. Brainard, 161 N.W.2d 508 (Neb. 1968), prob. juris.
noted, 393 U.S. 1076 (1969), appeal dismissed, 38 U.S. Law
Week 4001 (1969) (Nov. 12, 1969) .............05. 19, 20
Delaware Coach Co. v. Savage, 81 F.Supp 293 (D. Del. 1948) . 47
Dunbar v. United States, 156 U.S. 185 (1895) ........... 6
Duncan v. Louisiana, 391 U.S. 145 (1968) ...........006- 20
Edwards v. Mazor Masterpieces, Inc., 295 F.2d 547 (D.C. Cir.
A bee ST seidlaiiplete Unga ned | Bg ene e aRmeenrant ne
In re Ellis, 253 A.2d 789 (D.C. Ct. App. 1969) ...... .. 26,27
ee el
in re Elmore, 222 A.24 255 (D (ii)
F.2d 125 (D.C. Cir. 1967)
Fugate v. Ronin, 91 N.W.2d 24H C, Ct. 1966), modified, 382
Gardner v. Broderick, RTS oc ci cess ne csaces ees 10, 26, 27
Garrity v. New Jersey, 385 U.S40 (Neb. eee 41
in re Gault, 387 U.S. 1 (1967). 273 (1968)... . 6+ +++ seers a4
Georgia Power Co. v. Smith, ¥S. 493 (1967)... ..++++>> 44, 49
Gerak v. State, 153 NE. 902 6) Petpet ara passim
Government of Virgin Islands y4
Rare “einen $B 48 (Ga. Ct. App. 1956). 49
taleed States, 308 F (Ohio Ct. App. 1920) ......+- 4]
Greenberg v. Alter Co., 124 N v. Torres, 161 F.Supp. 699 ‘
ih OE ye
im ve ”*8.2d 303 (D.C. Cir. 1962)... .--- 45
Hicks v. District of Columbia,
oo N.W.2d 438 (lowa 1963) ......- 49
In re Hill, 253 A.2d 791 (D.C- 609 (1965)... +++ +e sree 44, 46
Holland v. United States, 348'. 197 A.2d 154 (D.C. Ct. App.
toe manne 26
Holt ». United States, 218 U.-° © APP. ee 27
Hopt v. Utah, 120 US. 430 @ US. 121 (1954)... - 26+ 28
Inre J.R., 242 N.E.2d 604 ( (Pa. 1954) .... 2. eee eee ees 34
(1968) ...-e- essere 1S eee 6
Jones v. Commonwealth, 38 (1887) ©... 66-2250
Juv. Ct. C :
Kent v. United States, 383 u! . y uyahoga County, Ohio .
} S.E.2 Va. 14, 15,
LaBoy v. New Jersey, 266 pi SE.2d 444 (Wa staan ech - -
Leland v. Oregon, 343 US. 7) 5. 541 (1966) ..----+++ 11, 12, 15,
ee ee -.4h ae
ilienthal v. United States, 9. giites
Lilienthal v. United States, %. 5.45 581 (D.NJ. 1967). +--+ >: 44
Lyon v. Commonwealth, 131
! 790, reh. denied, 344 U.S. 848
Inre M, 450 P.24 296(Cal. 6.7
In re McDonald, 153 A.24 67 Ys. 237 (1878)... + see 7
| S.E.2d 407 (Va. 1963) ...---- 41
f Seer 8, 22, 23, 24
651 (D.C. Ct. App. 1959)... .--- 9
(iv)
In re Madik, 251 N.Y.S. 765 (Sup. Ct. 1931)
Malloy v. Hogan, 378 U.S. 1 (1964) ...............25..
Micheli v. Toye Bros. Yellow Cab Co., 174 So.2d 168 (La. Ct.
SRP ws 20054 Sadat Vent eenaeekanwhwee 49
Mikens v. Commonwealth, 16 S.E.2d 641 (Va. a: Meee 15
Miles v. United States, 103 U.S. 304 (1880) ............. 6
Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964)......... 46
Nelson v. County of Los Angeles, 362 U.S. 1 (1960) ....... 44
Nieves v. United States, 280 F Supp 994 (S.D.N.Y. 1968) . 43, 44,
45, 50
Noel v. United Aircraft Corp., 219 F Supp. 556 (D. Del. 1963). 47
Paige v. United States, 394 F 2d 105 (Sth Cir. 1968) .. .... 27
People v. Anonymous A, B, C & D, 279 N.Y.S.2d 540
Pn I GR, PUD nina ss ctciwccunccncenee. 14
People ex rel. Rodello v. District Court, Denver County, 436
EE UN cana ce Chu ena kskcbs ace 17, 20
People v. Fitzgerald, 15S N.E 584(NY.1927) .... ...... 14
People v. Lewis, 183 N E. 353 (N.Y. 1932) .... . ...... 9
People v. Licovoli, 250 N.W. 520 (Mich. 1933) _.... ..... 7
People ex rel. Schubert v. Pinder, 9 N.Y .S.2d 311 _ Ct.
WEEE SUE ME eGR valk uhekkeieas ies us Ra eat 7
People v. Yeager, 359 P.2d 261 (Cal. 1961) 22... . i
Pritchard v. Downie, 216 F.Supp. 621 (E.D. Ark. 1963), affd
326 F 2d 323 (8th Cir 1964) ..........020..., ae.
Reed v. Duter, No. 17546 (7th Cir. biel 18, ewe 6 Crim.
Die «hee s otk abe ek rene ee ee 17
In re James Rich, 86 N.Y .S.2d 308 na Rel. Ct., Child. Div.
SE PR RUEMSS 064000 CNSR Eas hme wRARAD REO; UK 14
In re Rindell, 36 U.S. Law Week 2468 (R.1. Fam. Ct., Jan. 10,
DE +5 CASSEL DEEN De abe wde one bb 00 dn bk Re ck —
Sampson v. Channell, 110 F.2d 754 (ist Cir. 1940)... ...... 7
Sanitation Men v. Sanitation Comm’r, 392 U.S. 280 (1968) ... 49
Shaw v. United States, 174 Ct. Cl. 899, 357 F.2d 949 (1966) . 7
®). Anema.
_
(v)
Page
smith v. Magnet Cove Barium Corp., 206 S.W.2d 442, (Ark.
OT) na vcccvcceseccescenesecssncecnaccenss 47
In re Smith, 326 P.2d 835 (Crim. Ct. App. Okla. 1958) ...... 17
y. Randall, 357 U.S. 513, reh. denied, 358 U.S. 860
iT Tee eee ee. 7, 28
Spevack v. Klein, 385 U.S. $11 (1967) .....-.- 0-0-0 44, 49
State v. Arenas, 453 P.2d 915 (Ore. 1969) (en banc) . .8, 10,24, 25
State v. Brinkley, 189 S.W. 2d 314 (Mo. 1945) ........... 41
State v. Dantonio, 115 A.2d 35 (N.J.1955) .......------ 7
State v. Doyal, 286 P.2d 306 (N.M. 1955) .........---55- 41
State v. Dunn, 99 P. 278 (Ore. 1909)... eee ee ee eee 9
State v. Essex, 275 F.Supp. 393 (E.D. Tenn. 1967), rev'd on
other grounds, 407 F.2d 214 (6th Cir. 1969) ..........- 27
State v. Lindsey's Interest, 300 P.2d 491 (Idaho 1956)....... 42
State v. Santana, 444 S.W.2d 614 (Tex. 1969) .......- 6, 18, 19,
49, 52, 53
State v. Santana, 431 S.W.2d 558 (Tex. Civ. Ct. App. 1968) . . .17, 18
State v. Van Buren, 150 A.2d 649 (N.J.1959) ........... 41
Teutrine v. Prudential Ins. Co. of America, 72 N.E.2d 444 (Ill.
i IE nb. Ob Acc ck nen ccuageanssesacerees 47
United States v. Anonymous, 176 F.Supp. 325 (D.D.C.1959) . 41
United States v. Caviness, 239 F.Supp. 545 (D.D.C. 1965)... 4!
United States v. Costanzo, 395 F.2d 441 (4th Cir. 1968) ... . 27,28
United States v. Essex, 275 F.Supp. 393 (E.D. Tenn. (1967)... 27
United States v. Jackson, 390 U.S. 570 (1968) .......... 44, 50
United States v. Kansas Gas & Elec. Co., 215 F Supp. 532 (D.
EN. naib pCuec ev dand eos cen hCeeiaeeas 47
United States v. New York, N.H. & H.R. Co., 355 U.S. 253
SE cities Sh Ue id x aed aan kas aes 7
Universe Tank Ships, Inc. v. Pyrate Tank Clearners, Inc. 152
en Cs OUD oka kv sc ck ceemecennccan 47
In re Urbasek, 232 N.E.2d 716 (Ill. 1967) ... . 15, 16, 18, 22, 27, 28
In re Urbasek, 222 N.E.2d 233 (Ill. Ct. App. 1966) ......... 16
White v. Village of Soda Springs, 266 P. 795 (Idaho 1928) ... 48
(vi) ee
Page
In re Whittington, 233 N.E.2d 333 (Ohio Ct. App. 1967),
vacated and remanded, 3911 U.S. 341 (1968) ....... 15, 20, 32
In re Whittington, 245 N.E.2d 364 (Ohio Ct. App. 1969) ..... 20
Williams v. Colonial Pipeline Co., 139 S.E.2d 308 (Ga. 1964) . 49
Wilson v. United States, 149 U.S. 60 (1893) ............. 47
In re Samuel W. v. Family Court, 299 N.Y.S.2d 414 (1969) . . 22,40
In re Wylie, 231 A.2d 81 (D.C. Ct. App. 1967) ........... 27
Zurich Ins. Co. v. Oglesby, 21\7 F.Supp. 180 (W.D. Va. 1963) . 49
Statutes:
Federal Juvenile Delinquency Act, 18 U.S.C. § 5033 (1964) ... 50
Colo. Rev. Stat. § 22-3-6 (Supp. 1967)...............2... 30
Md. Ann. Code, Art. 26 § 70-18(a) (Cum. Supp. 1969)....... 30
Neb. Rev. Stat. § 43-205.04 (1943) ...........c eee eeee 13
Neb. Rev. Stat. § 43-206.03(S) (1943) ...........00008. 34
Ps es GU. RPEOUERD ccc esc cee ecesnvenes 34
New York Family Court Act § 713 (McKinney 1962) ....... 15
New York Family Court Act §§ 782-784 (McKinney 1963) ... 34
Virginia Code Ch. 78, § 1910) (1942) ......-- 655 serene 14
D.C. Code:
Poo lt. 7) Se ee eee ee 2
SS. 0. Se eee ere er es eee eee eee es 9.15
BS 1DMR LISS) nw wcrc ewe enenerenseces 36
DERGSR AUP TD cine wee came nsccvcnsnereesses 13,42
§ 11-1586(a) (1967) ww ce were een ne: cone 35
§ 11-1586(c) (1967) ww wc ec eee ee cee wees 35
§ 16-290B(E) (1967) nw wc wee ccc n es cevenonnes 34, 36
§ 22-2902 (1967) wc ewer cer cc cneeeeveesens 43
§ 24-203 (1967) 2... wenn en eeccesee-sennescces 43
Treatises:
McCormick, Evidence § 321 (1954) www ee ee ee ee eee 5, 28
McCormick, Evidence § 319 (1954)... 6. ee ee eee ees 48
Sso7”™”
(vii)
Page
McNally, Rules of Evidence on Pleas of the Crown (1802) ... 5
Thayer, Preliminary Treatise on Evidence 558 (1898) ....... 5
8 Wigmore, Evidence § 317 (McNaughton 1961) ........... 46
9 Wigmore, Evidence § 2497 (Supp. 1964) ............4.- 28
9 Wigmore, Evidence § 2498 (Supp. 1964) .............-.. $1
Law Reviews:
Antieau, Constitutional Rights in Juvenile Courts, 46 Corn. L.Q.
| ae Acre Ss 6e Lee eee een ee 33
Cohen, The Standard of Proof in Juvenile Proceedings: Gault
Beyond a Reasonable Doubt, 68 Mich. L. Rev. ___ (1970)
(article forthcoming in Jan., 1970 issue and available upon
eS ee. Pee ee 2 oe ee 2 ere 33
Ketchum, What Happened to Whittington?, 37 Geo. Wash. L.
ee ae ed ee re 13
May, Reasonable Doubt in Civil and Criminal Cases, 10 Am. L.
DO PE WW Ce awh eee Eee se hous wees daas 6
Morgan, Presumption and Burden of Proof, 47 Harv. L. Rev.
I en a ea a 48
Parker, Some Historical Observations on the Juvenile Court,
Ps MN I Ss. Cb A cw woe ca Wek 6 kas cua ece 52
Rappeport, Determination of Delinquency in the Juvenile Courts:
A Suggested Approach, 1958 Wash. U.L.Q. 123 ......... 32
Trickett, Preponderance of Evidence and Reasonable Doubt,
Pe I, an Oe PD ck van ese ndiversccs 51
Waite, How Far Can Court Procedure Be Socialized Without
Impairing Individual Rights, 12.3. Crim. L. C.&P.S. 339
| GR ate tg TT ef PPE eR 5 32
Note, Juvenile Courts: Applicability of Constitutional Safe-
guards and Rules of Evidence to Proceedings, 41 Corn.
ek Cor oe mr 32
20 Syr. L. Rev. 1009 (1969) oo... eee eee eee cece 33
PG nik s Kin wc canenders 13, 33,
44 St. John’s L. Rev. 101 (1969) ................. 19, 33, 40
a
— oe epeenrnnsenE
(viii)
Books and Reports: Page
Tappan, Crime, Justice and Correction 392 (1960) ......... 35
2 Inbau, Thompson & Sowle, Cases and Comments on Criminal
Se CP on ek pn phancadnctawasanl 8
Michael & Weschler, Criminal Law and Its Administration
PNGE Cha 054 oh 46 GRO a nc hbk 664 4K 4RKRR ELS 53
Annual Report of the Juvenile Court for the District of Colum-
RIN 6-006 4h ik PA A ah ode Mitac bi ken 53, 54, 55
President’s Commission on Law Enforcement and Administration
of Justice, Task Force Report: Juvenile Delinquency and
Pee eT rT eee ee ee 11, 43
Report of the President’s Commission on Crime in the District
eT nc Ck WU ha Wile sade eke ue cu 11, 55
The President’s Commission on Law Enforcement and Adminis-
tration of Justice: The Challenge of Crime in a Free
PI ts dia telnl a kx Sake Bingo din dares lunes & 11, 37
“The Pre-sentence Investigative Report” Publication No. 103,
Administrative Office of the United States Courts (Division
IS 6k Slate Cr tra See bg nee oh wba Kein ack man 38
Interviews:
Silverman Interview, Director of Social Services, D.C. Juvenile
oS ee eee ee er ree ere 36, 38
Evans Interview, D.C. Hack Inspection Office (Nov. 5, 6, 1969) . 36, 39
Rowles Interview, Program Developer, Offender Rehabilitation
Div. of the Legal Aid Agency of the District of Columbia
er er er te ee ees 37, 38
Little Interview, Job Developer, Project Crossroads, District of
I Sc Es ss win we a vc w Oka wee eC ee 37, 38
Best Interview, Job Corps, District of Columbia (Nov. 3, 1969) 37, 38
White Interview, Manpower Training and Employment Service
Agency (MATESA) (Nov. 5, 1969) ................. 37
Evans (James) Interview, Bureau of Training, Civil Service
CC ON hace acncabeeneusr eee 37, 39
Bennett Interview, Clerk, D.C. Juvenile Court (Oct. 29, 1969) . 38
Beaudin Interview, Director, D.C. Bail Agency (Nov. 4, 1969) . 38
—7"7~""
(ix)
Page
Fortier Interview, Chief Petty Officer, U.S. Navy (Nov. 4,
Oo ee 38
Miles Interview, Air Force recruiter (Nov. 4, 1969) ........- 38
Hughes & Sanders Interview, Army Recruiting Division (Nov. 4,
|.) PEPPERS eS eee ee ee 36, 39
Brown Interview, Director of Admission, Howard University
OS Pe yr er err eee 39
Miscellaneous:
Uniform Juvenile Court Act § 2(2) (1968) ......... 9, 15, 30, 31
Federal Personnel Manual Ch. 731, 8§ 2.5-2.6 ...........-- 37
D.C. Juvenile Court Rules, Rule 4B-2(c) (1965 as amended) .... 35
New Jersey Court Rules, Rule 9-1(f) (1967) .........---- 30
Juvenile Court Rule 4.4(b), as adopted by the Washington
Judicial Council (29068) 0. ww cece cece cen nee 30
Model Rules for Juvenile Court, Rule 26 (Final Draft 1968) ... 32
Warren, Chief Justice, Address to the National Council of
Juvenile Court Judges, Vol. 15, No. 3, Juv. Ct. Judges, J. 14
Oe. ge Me rhea otis edaw ei bke x +<%s 5
National Council of Juvenile Court Judges, Directory and
OE EE ner 13
The Washington Post (March 7.1969) ..........2+--ee- 11
The Washington Post (Nov. 9, 1969) .........-ee eee eeee 11
The Washington Post (Nov. 14, 1969) ........ee seen 12
The Washington Post (Nov. 23, 1969) .......--2eee eens 12
Guides for Drafting Family and Juvenile Court Actions, Depart-
ment of Health, Education and Welfare, Social and Rehabili-
tation Service (Children’s Bureau) § 32(c) (1969)......... 32
Standardized Jury Instructions for the District of Columbia, at
_, 4 (PPP er ere Tere eee TTT eee 48
Recommendations to Investigate the Effect of Police Arrest
Records on Employment Opportunities in The District
ge 8. err ree ewer rae i rer 36
Army Regulations, Rule 3-9 (1969) ........--e+e ee eens 39
a a ae
IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1969
No. 778
IN THE MATTER OF SAMUEL W.
Vv.
FAMILY COURT OF THE STATE OF NEW YORK
ON APPEAL FROM THE NEW YORK COURT OF APPEALS
BRIEF FOR THE NEIGHBORHOOD LEGAL SERVICES PROGRAM
OF WASHINGTON, D.C. AND THE LEGAL AID AGENCY FOR
THE DISTRICT OF COLUMBIA AS AMICUS CURIAE
The Neighborhood Legal Services Program of Washington,
D.C. and the Legal Aid Agency for the District of Columbia
file this brief Amicus Curiae pursuant to consent of the
parties hereto, submitted herewith.
INTEREST OF AMICUS CURIAE
Neighborhood Legal Services Program (NLSP) of Wash-
ington, D.C. is a legal service program funded by the Office
of Economic Opportunity. The 10 field offices of this pro-
gram handle the cases of indigent juveniles in the nation’s
capitol. They handle several hundred of these cases each
year. The burden of proof standard applied by the District
of Columbia Juvenile Court in both court and jury trials is
“a mere preponderance of the evidence.”” Several cases han-
dled by NLSP attorneys which argue that the preponderance
ry
standard be changed to “beyond a reasonable doubt” are
pending in the United States Court of Appeals for the Dis-
trict of Columbia. Since the vast majority of juveniles who
come before the nations’ juvenile courts are without funds
to pay for legal services, the ruling in this case will have an
enormous impact on juvenile proceeding in the District and
throughout the country.
The Legal Aid Agency is required by statute to represent
youths charged with delinquent conduct in the District of
Columbia Juvenile Court. D.C. Code 82-2202 (1967). Dur-
ing fiscal 1969 for example, Agency attorneys appeared in
approximately 1500 delinquency cases. The Agency firmly
believes that justice in the District of Columbia Juvenile
Court would be enhanced if “beyond a reasonable doubt”
were the standard of proof to be applied in cases involving
determinations of delinquency. Litigation aimed at eliminat-
ing the present, civil standard of proof in juvenile cases involy-
ing criminal offenses has been pursued in the past by Agency’
attorneys, and an Agency case in which this issue is presented
is currently on appeal before the United States Court of
Appeals for the District of Columbia.
QUESTION PRESENTED
Whether a youth who is charged with committing.a crim-
inal offense, the conviction for which may result in a pro-
longed period of institutional confinement and which, if he
were an adult, would constitutionally require proof beyond
a reasonable doubt, is deprived of his liberty without due
process of law or denied equal protection of the laws when
he is convicted of delinquency by a “mere preponderance
of evidence?”
2
SUMMARY OF ARGUMENT
A youth who is charged with committing a criminal
offense, the conviction of which may result in a prolonged
period of institutional confinement, and which, if he were
an adult would constitutionally require proof beyond a rea-
sonable doubt, is deprived of his liberty without due process
of the law and denied equal protection of the laws when he
~>~—~—
is convicted of delinquency by a mere preponderance of the
evidence.
Beyond a reasonable doubt has always been the standard
of proof required for a conviction in an adult criminal pro-
ceeding. The reason for the application of this standard is
that an individual whose liberty and freedom may be taken
away must be presumed innocent until the Government is
able to prove, by facts which leave no reasonable doubt in
the mind of the factfinder, that he is guilty of the offense
with which he has been charged.
A juvenile is deprived of his liberty when he is convicted
of committing a criminal offense. A conviction often results
in the youth being detained in an institution which is under-
staffed and ill-equipped, and which fails to provide the juve-
nile with an effective rehabilitative program. While the great
juvenile experiment had not failed, many of the laudatory
goals which it sought to achieve have not been attained in
fullest measure. Even the stigma attached to a finding of
delinquency subjects the convicted youth to a variety of
disabilities which juvenile court statutes euphemistically
assert do not attend the juvenile’s conviction.
3
Enlightened judicial and legislative opinion, as weil as
many commentators, recognize the necessity for adoption
of the reasonable doubt standard. The very fact that some
youths are accidentally afforded the reasonable doubt stand-
ard through their discretionary transfer to an adult court by
the juvenile court dramatizes the unequal treatment provided
those youths who are prevented from realizing a constitu-
tional right, apparently because they are considered “good”
enough to warrant the benefits of a proceeding conducted
in the juvenile court.
The preponderance standard conflicts with a youth’s asser-
tion of his privilege against self-incimination, a privilege ex-
tended to juveniles in Gault. Few youths would not feel
compelled to take the stand on their own behalf in order
to contradict the evidence presented by the Government
which must only demonstrate the factfinder that its case is
“more convincing” than the youth’s.
4
By adopting the reasonable doubt standard the rehabili-
tative purposes of the juvenile court are in no way jeopard-
ized. Indeed, application of the criminal standard to cases
involving youths charged with the commisson of a criminal
offense will allow, at the post-adjudicatory stage, convicted
juveniles who are in real need of treatment to derive the
greatest benefit from the meager resources presently avail-
able for rehabilitation; providing a greater chance of saving
such youths from returning to society as hardened criminals.
ARGUMENT
THE FAILURE TO AFFORD A YOUTH THE RIGHT TO
BE ADJUDICATED A DELINQUENT BY PROOF WHICH
LEAVES NO REASON\3LE DOUBT THAT HE COM-
MITTED THE CRIMINAL OFFENSE WITH WHICH HE
IS CHARGED IS A DEPRIVATION OF LIBERTY WITH-
OUT DUE PROCESS AND A DENIAL OF EQUAL
PROTECTION OF THE LAWS.
Both the Due Process and Equal Protection Clauses of
the Fourteenth Amendment require the application of the
criminal standard of proof in juvenile delinquency proceed-
ings. The “criminal” aspects of a juvenile court determina-
tion, the stigmatizing effect of a conviction and the charac-
teristic ease with which transfer to an adult court may take
place sharply dramatize the need for according juveniles the
same standard of proof protection which has long been con-
sidered a constitutional safeguard for adults.
The deprivation of a child’s liberty as a result of a con-
viction of a criminal offense is so severe that there no longer
appears to be any justification for denying the application
of the higher standard. Indeed, the poor institutional reha-
bilitation that juveniles generally receive makes it more im-
perative that a youth be accorded at least the same protec-
tion given an adult when the youth is charged with acts the
conviction of which may result in his prolonged, and often-
.
|
—_
5
times repressive, incarceration. In considering the necessity
for the application of the adult standard of proof in crimi-
nal cases, one is reminded of Mr. Chief Justice Warren’s as-
sertion in 1964 that:
“after all, what we are striving for is not merely
‘equal’ justice for juveniles. They deserve much more
than being afforded only the privileges and protections
being afforded their elders. A niggardly and indiscrim-
inate granting of concepts of justice applied to adults
will stunt the growth of the juvenile court and handi-
cap the progress of future generations.””'
A. An Individual Convicted Of Committing A Crimi-
nal Offense Is Deprived Of His Liberty Without
Due Process Of Law Unless The Case Against Him
Is Proved Beyond A Reasonable Doubt.
It is true that the requirement that a man be proved
guilty beyond a reasonable doubt finds no explicit constitu-
tional expression. Nevertheless, it has long been regarded as
an essential ingredient and one of the fundamental princi-
ples of American jurisprudence that an individual's liberty
may not be deprived without proof beyond a reasonable
doubt. As McCormick has noted:
“This demand for a higher degree of persuasion in
criminal cases was recurrently expressed frem «ncient
times, but its crystallization into the formula beyond
a reasonable doubt’ seems to have occurred as late as
1798. It is now accepted in common law jurisdictions
as the measure of persuasion by which the prosecution
must convince the trier of all the essential elements of
guilt.” McCormick, Evidence § 321 (1954).?
' Address by Mr. Chief Justice Warren, The National Council of
Juvenile Court Judges, Vol. 15, No. 3, Juv. Ct. Judges J. 14, 16(1964).
?McCormick cites as authority for this statement, Thayer, Prelimi-
nary Treatise on Evidence 558-9 (1898), which in turn quoted pas-
sages from Coke’s 3rd Institute. The first articulation of the standard
came in the high treason cases of 1798 in Dublin as reported
by McNally, Rules of Evidence on Pleas of the Crown (1802).
(Continued)
—
6
At a very early point in our nation’s judicial history we
see an unequivocal acceptance of “beyond a reasonable
doubt” as the applicable standard of proof in criminal pros-
ecutions. So universal has been its acceptance that not a
single case can be found in the law books rejecting that
standard.
Several decisions of this Court in the nineteenth century
have applied and interpreted the reasonable doubt standard
in both federal and state criminal cases. For example, in
Miles v. United States, 103 U.S. 304 (1880), a federal prose-
cution for bigamy, this Court said, at 312:
“The evidence upon which a jury is justified in return-
ing a verdict of guilty must be sufficient to produce a
conviction of guilt, to the exclusion of all reasonable
doubt.’
More recently, in Brinegar v. United States, 338 U.S. 160
(1949), this Court indicated:
“Guilt in a criminal case must be proved beyond a rea-
sonable doubt and by evidence confined to that which
long experience in the common law tradition to some
extent embodied in the Constitution, has crystallized
into rules of evidence consistent with that standard.
338 U.S. at 174.’
See also May, Reasonable Doubt in Civil and Criminal Cases, 10 Am.
L. Rev. 642, 656-7 (1876).
3See Hopt v. Utah, 120 U.S. 430, 439-42 (1887); Dunbar v. United
States, 156 U.S. 185, 198-9 (1895); Coffin v. United States, 156 U.S.
432, 460 (1895); Davis v. United States, 160 U.S. 469, 493 (1895);
Agnew v. United States, 165 U.S. 36, 51-2 (1897); Holt v. United
States, 218 U.S. 245 (1910), as well as the state court cases cited in
Hopt which applied the reasonable doubt standard. See also State v.
Santana, 444 S.W. 2d 614, 626-27 (Tex. 1969).
‘Even in the subsequent case of Leland v. Oregon, 343 U.S. 790,
reh. denied, 344 U.S. 848 (1952), where the Court found it constitu-
tionally permissible for a state to shift the burden of proof to the
defendant on an insanity defense, the Court reiterated that the overall
(Continued)
————
-
And in Speiser v. Randall, 357 U.S. 513, 525-26, reh. de-
nied, 358 U.S. 860 (1958), this Court said again:
“In all kinds of litigation it is plain that where the
burden of proof lies may be decisive of the outcome.
Cities Service Oil Co. v. Dunlap, 308 U.S. 208; United
States v. New York, N.H.& H.R. Co. 355 U.S. 253;
Sampson v. Channell, 110 F.2d 754, 758. There is al-
ways in litigation a margin of error, representing error
in factfinding which both parties must take into ac-
count. Where one party has at stake an interest of
transcending value—as a criminal defendant his liberty—
this margin of error is reduced as to him by the proc-
ess of placing on the other party the burden or produc-
| ing a sufficiency of proof in the first instance, and of
persuading the factfinder at the conclusion of the trial
of his guilt beyond a reasonable doubt. Due process
commands that no man shall lose his liberty unless the
Government has borne the burden of producing the ev-
idence and convincing the factfinder of his guilt.’
burden of proving guilt beyond a reasonable doubt lay on the prosecu-
tion. 343 U.S. at 799. Frankfurter, J., dissenting in that case said:
“ From the time that the law which we have inherited has
emerged from dark and barbaric times, the conception of justice
which has dominated our criminal law has refused to put an ac-
cused at the hazard ot punishment if he fails to remove every
reasonable doubt of his innocence in the minds of the jurors. It
is the duty of the Government to establish guilt beyond a reason-
able doubt. This notion—basic in our law and rightly one of the
boasts of a free society—is a requirement and a safeguard of due
process of law in the historic procedural content of “due process’.
343 U.S. at 802-03.
5 Accord, Lilienthal v. United States, 97 U.S. 237 (1878); Leland
v. Oregon, 343 U.S. 790, dissenting opinion of Frankfurter and
Black, reh. denied, 344 U.S. 848 (1952); Brooks v. United States,
164 F.2d 142 (Sth Cir. 1947); Shaw v. United States, 174 Ct. Cl. 899,
357 F.2d 949 (1966); Government of Virgin Islands v. Torres, 161
F.Supp. 699 (D.V.I. 1958); People v. Licovoli, 250 N.W. 520 (Mich.
1933); People ex rel Schubert v. Pinder, 9 N.Y.S.2d 311 (Sup. Ct.
1938); State v. Dantonio, 115 A.2d 35 (N.J. 1955). See also In re
(Continued)
8
It should be remembered that, during the period when
the reasonable doubt standard was first articulated by the
Courts, children over the age of seven were tried and treated
as adults. They, too, were the recipients of this fundamental
procedural safeguard.°®
In sum, the reasonable doubt standard, while it had not
yet been definitely articulated at the founding of our nation,
evolved gradually into a universally-accepted element of com-
mon law criminal due process. This is reflected in many opin-
ions of this Court. The history of criminal procedure in our
country discloses no territroy, state, or federal court that
has even attempted to change that standard, since it is so
embedded in our notions of criminal due process.
The real question, therefore, is whether a conviction’ of
an offense in a juvenile proceeding can be considered “crim-
M, 450 P.2d 296, 801 (Cal. 1969); State v. Arenas, 453 P.2d 915,
917 (Ore. 1969) (en banc). Both cases refused to extend the reason-
able doubt standard to juvenile delinquency adjudications. See pp.
21-25, infra. Nonetheless, each recognized that an adult’s right to be
found guilty by the higher standard is a right which is inherent in the
Due Process Clause of both the federal and its own state constitutions.
See also 2 Inbau, Thompson & Sowle, Cases and Comments on Crim-
inal Justice 1145 (3rd ed. 1968): “An indispensable element of ‘due
process’ is the requirement that guilt be proved ‘beyond a reasonable
doubt.’”
But there is no trace of the doctrine of parens patriae in the his-
tory of criminal jurisprudence. At common law, children under seven
were incapable of possessing criminal intent. Beyond that age, they
were subjected to arrest, trial and in theory to punishment like adult
offenders. In these old days, the state was not deemed to have
authority to accord them fewer procedural rights than adults.” Jn re
Gault, 387 U.S. 1, 16 (1967).
7It is true that in the instant case the Court of Appeals insisted
that the proceedings were not criminal because, even if the juvenile
is incarcerated, the relevant statutory provision asserts that his adju-
dication is technically not a “conviction” and affects no right or pri-
(Continued)
—
9
inal” in the traditional sense that a youth loses his liberty.
To be sure, it was never intended that a determination of
delinquency in a juvenile proceeding would ever assume the
characteristics of a criminal adjudication. In fact, after the
emergence of the doctrine of “parens patrise,”*® and until
the profound changes wrought in juvenile cases by the de-
cision in In re Gault, 387 U.S. 1 (1967) most courts ac-
cepted without question the assumption that juvenile pro-
ceedings were civil, not criminal. They were concerned
solely with promoting the child’s rehabilitation, not punish-
ing his criminality. Indeed, the intention in creating juvenile
courts was laudatory: to remove all taint of criminality
from the child’s unlawful activity. An adjudication of delin-
quency was never supposed to restrict the beneficial proc-
esses used to prevent a youth from “copping out” of so-
ciety, nor from losing faith that his elders were giving him
a fair shake at readjusting to it. It followed that the cus-
tomary constitutional safeguards were unnecessary for and
inappropriate to determining the best interests of the child.’
But insofar as the assumptions upon which this paternal-
istic view rest are unfounded, and insofar as procedures pre-
serving the essential fairness of a juvenile proceeding are not
inconsistent with the goals of the juvenile court, the youth
should and must be accorded constitutional safeguards. It is
therefore necessary to examine these assumptions.
vilege. This type of provision is typical. But see, e.g., D.C. Code
§ 3-120 (1967), which seems to implicitly recognize that a hearing
on delinquency is in the nature of a criminal proceeding. See also
Uniform Juvenile Court Act § 2(2)(1968) and text accompanying
notes 17-18, 32, infra
8state v. Dunn, 99 P. 278, 280 (Ore. 1909).
%See, e.g., People v. Lewis, 183 N.E. 353, 355 (N.Y. 1932); In re
Bigesby, 202 A.2d 785-786 (D.C.Ct. App. 1964); Jn re McDonald,
153 A.2d 651 (D.C.Ct. App. 1959).
es CRIS IO TI
ra
B. A Convicted Juvenile Delinquent Is Deprived Of
His Liberty In The Same Manner, And With The
Same Consequences, As An Adult Criminal.
10
One basic reason for not providing “‘criminal”’ safeguards
in juvenile proceedings has been that any resulting confine-
ment is directed to rehabilitation, not punishment. The ap-
proach taken by the District of Columbia Courts is indica-
tive of the traditional view. For example, in /n re Elmore,
222 A.2d 255 (D.C. Ct. App. 1966), modified, 382 F.2d
125 (D.C. Cir. 1967), in which a 13 year old child was
found to be delinquent, the District of Columbia Court of
Appeals euphemistically asserted that:
““A delinquent child is neither considered nor treated
as a criminal but as a person needing guidance, care,
and protection. The safeguards which surround him
do not inherently derive from the Constitution but
from the social welfare philosophy which forms the
historical background of the Juvenile Court Act...
[t]he investigation and court proceeding. involving the
determination of a child’s delinquency are directed to
the status and needs of the child, and the disposition
thereof has as its goal not punishment but the rehabili-
tation and restoration of the child to useful citizenship.
The end result is that a child should not be labeled a
criminal, he is not punished as a criminal, and the pro-
ceedings against him should be far removed from the
characteristics of criminal trial” 222 A.2d at 257-8.'°
The premise that juvenile confinement is rehabilitative, ver-
sus punitive, in nature needs reexamination. For, not only
is most criminal confinement also directed, at least in part,
toward rehabilitation,'' but also there is reason to question
101t should be pointed out, however, that in this case the court was
not dealing with a boy who had committed any specific antisocial of-
fense, but rather with one whose “habitual” course of conduct placed
him beyond the control of his mother.
I See, e.g., State v. Arenas, 453 P.2d 915, 918 (Ore. 1969) (en banc).
Although the court refused to require the adoption of the adult stan-
dard of proof to determinations of delinquency, it noted:
[continued]
—
11
whether the confinement of youths has the desired rehabili-
tative effect. There is competent evidence to suggest that
the original objectives of the juvenile court system have not
been effectively accomplished.'? Institutions which house
convicted delinquents often fail to provide ai adequate
form of treatment for the youths.'? In fact, in Kent v.
“_. Aspects of the juvenile law which at its inception made it
substantially different from the criminal law are now also present
in the criminal law as it exists today in Oregon. Today in the
criminal law as well as in the juvenile law the court attempts to
find out as much as possible about the individual defendant be-
fore making any disposition of the case. In the criminal law as
well as the juvenile law the court makes a disposition which is
most likely to rehabilitate the individual and permanently re-
move him from the ranks of crime.”
12¢0¢ In re Gault, 387 U.S. at 26; PRESIDENT’S COMMISSION ON
Law ENFORCEMENT AND ADMINISTRATION OF JusTICE, TASK
ForcE REPORT: JUVENILE DELINQUENCY AND YOUTH CRIME 7-9
(1967); REPORT OF THE PRESIDENT’S COMMISSION ON CRIME IN THE
DISTRICT OF COLUMBIA 665-76, 686-87, 773 (1966).
13S¢¢ THE PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JuSTICE: THE CHALLENGE OF CRIME IN A
FREE SociETY 87 (1967):
“[(F] or nearly half the Nation’s population there is no deten-
tion facility except the county jail, and many of the jails used
for children are unsuitable even for adult offenders.”
As recent as March 7, 1969, The Washington Post reported on the
testimony given by Joseph R. Rowan, former Federal delinquency
consultant and now director of the John Howard Association of Illi-
nois, before the juvenile Delinquency Subcommittee of the Senate
Judiciary Committee in which Mr. Rowan:
“__. emphasized his opinion that treatment of delinquents in
institutions for children was no better, and probably more
negligent, than in most adult prisons. He called juvenile institu-
tions ‘crime hateries’ where children are tutored in crime if they
are not assaulted by other inmates or the guards first.”
His testimony was given stark affirmation by the November 9, 1969
account in The Washington Post which reported on the charges made
by the Justice Department that “overseers of an Alabama juvenile
(Continued)
——
12
United States, 383 U.S. 541 (1966), the Supreme Court
noted that:
“While there can be no doubt of the original laudable
purpose of juvenile courts, studies and critiques in re-
cent years raise serious questions as to whether actual
performance measures well enough against theoreticai
purpose to make tolerable the immunity of the proc-
ess from the reach of constitutional guarantees appli-
cable to adults.” 383 U.S. at 555.
However they may be characterized, the truly criminal
nature of juvenile court proceedings becomes clear when
one considers the consequence of a finding of delinquency
on the personal liberty of the child. The importance of the
issue of the child’s loss of liberty cannot be underestimated.
The decision in Gault was influenced in large part by the
realization, confirmed by objective studies, that ‘‘whether it
be called punishment or rehabilitation, the juvenile delin-
quent’s confinement is no less a loss of liberty than the
home ‘freely and excessively’ administer corporal punishment to 440
Negro youngsters.” President Nixon, on November 13, 1969, also
called on Attorney General Mitchell to institute a major prison reform
drive in America. In a companion statement to his Directive, Mr.
Nixon noted “In an appalling number of cases, our correctional insti-
tutions are failing.” After citing a study indicating approximately
a forty percent recidivism rate amongst adult criminals, President
Nixon indicated that repeater rates were even greater among persons
under twenty, “and there is evidence that our institutions actually
compound crime problems by bringing young delinquents into con-
tact with experienced criminals.”” The Washington Post, November
14, 1969, 8A, at 2, col. 3. And on November 22, 1969 Former Justice
Fortas speaking before the Juvenile Court Practice Institute in Wash-
ington, D.C. specifically attacked the practice of confining juveniles
to institutions from which most he said, “emerge as hardened crimi-
nals... with improved skills as burglars, sex offenders, dope addicts
and the like.” The Washington Post, November 23, 1969, § A, at 23,
col. 1.
13
adult criminal’s.”'* Why, then, should the burden of proof
standard necessary to convict a child of a violation of the
law be an easier one to meet than the standard applied to
a youth who may be only slightly older, if at all, and who
is tried as an adult for the same offense?!§
1 A Significant Body Of Respected Judicial Author-
ity Considers The Application Of The Adult Stand-
ard To Juvenile Delinquency Determinations A
Constitutional Requirement.
Although most courts continue to classify juvenile pro-
ceedings as civil, long ago some courts began noting their
essentially criminal nature and the necessity for according
the same safeguards to juveniles and adults alike. Until the
instant case, the authority in New York was to this effect.'®
1437 YU. Cin. L. Rev. 851 (1968); see Gault, 387 U.S. at 27:
“The fact of the matter is that, however euphemistic the title,
a ‘receiving home’ or an ‘industrial school’ for juveniles is an
institution of confinement in which the child is incarcerated
for a greater or a lesser time.”
see Dc. Code §11-1553 (1967); Neb. Rev. Stat. § 43-205.04
(1943) aud similar provisions in other states under which a juvenile
may be waived, at the court’s or prosecutor’s discretion, to a “crimi-
nal” court for trial as an adult. Relatively few procedural steps or
substantive standards have ever been delineated for transfer of juris-
diction from a juvenile to an adult criminal court. Ketcham, What
Happened to Whittington? 37 Geo. Wash. L. Rev. 324, 336 (1968).
See National Council of Juvenile Court Judges, Directory and Manual,
301-46 (1963). See also the discussion of waiver in notes 68-75 and
accompanying text, infra.
'©See In re Madik, 251 N.Y.S. 765, 767 (Sup. Ct. 1931):
“The facts, however, of the charge must be proved against the
child in the same way as if the charge were made against an
adult; that is, by competent evidence.”
* * * *
“In the case of an adult, proof of guilt beyond a reasonable
doubt would be required. The district attorney concedes and
we think that such proof is required here.”
[continued]
——_
14
In Jones v. Commonwealth, 38 S.E.2d 444 (Va. 1946),
two boys were charged with a violation similar to breach of
the peace. Jones allegedly had thrown a number of rocks
and made loud noises in the late hours of the evening. A
good deal of the evidence against the defendant was, how-
ever, vague and confused in some respects, uncertain in
other respects, and contradictory in others.
A Virginia statute stated that:
‘
*. . . MO power is given to the juvenile courts to con-
vict any child of any crime, either misdemeanor or fel-
ony or to commit any child to any penal institution.
Such court may only adjudge a child delinquent and
commit him, not to a penal institution, but to the
State Board of Public Welfare, which board is given
power to make proper disposition of the child.’’!”
See also People v. Fitzgerald, 155 N.E. 584, 587 (N.Y. 1927).
In Jn re James Rich, 86 N.Y.S.2d 308 (Dom. Rel. Ct., Child. Div.
1949), a 15-year-old boy was charged with the fatal stabbing of
another boy. In discussing the burden of proof standard, the court
remarked:
“The rule of law is that a charge of crime must be established
beyond a reasonable doubt. If there is a reasonable doubt as to
the perpetration of the crime, that reasonable doubt must be
resolved in favor of the person charged with having committed
the act. Jt is no less applicable to a child than it is to an adult.
In this case, the doubt I have is only as to the truth that was
told; but in the last analysis, it is the result of speculation. And
I have no right to speculate.” [Emphasis added.] 86 N.YS.
i 2d at 311.
See also People v. Anonymous A, B, C and D, 279 N.Y.S.2d 540,
543 (Nassau County Ct. 1967), where the court held that the state had
the “burden of proving beyond a reasonable doubt” that a 16-year-
old boy had been guilty of stealing an automobile. The opinion in
the instant case has repudiated the enlightened approach taken by
both courts of first instance in Madik and Anonymous, as well as by
the specialized court in Rich.
'7 Virginia Code ch. 78, § 1910 (1942).
15
Despite this explicit mandate, and while recognizing that
the statute dealing with juvenile courts required a liberal
construction in order to accomplish its beneficial purposes,
the court was not reluctant to admit the basic criminal na-
ture of the boys’ trial. Following its fiat assertion that a
conviction of delinquency requires that “[g]uilt should be
proved by evidence which leaves no reasonable doubt,”’ the
court added:
“the trial and punishment of minor offenders fol-
lows the regular criminal procedure, modified, in cer-
tain respects, by the statutes setting up juvenile and
domestic relations courts.” 38 S.E.2d at 447, quoting
Mikens v. Commonwaalth, 16 S.E.2d 641, 643 (Va.
1941).'8
Spurred by Kent and Gault, several courts have recently
acknowledged the basic, fundamental restraint on a youth’s
liberty affected by an adjudication of delinquency. They
have begun to realize that, because of the kind of detention
to which a convicted delinquent is subject, the beyond a
reasonable doubt standard must be adopted to fully protect
the child accused of being a delinquent.
In re Urbasek, 232 N.E.2d 716 (Ill. 1967), is an impor-
tant decision which articulates one state’s judicial disposi-
tion on the burden of proof standard. In that case, an 11
year old boy had been charged with murder. When the Illi-
nois Court of Appeals first considered the case in 1966,
'8For other illustrations of the fact that courts and legislatures
recognize the criminal nature of the act which a youth commits, see,
eg, In re Whittington, 233 N.E.2d 333, 342 (Ohio 1967) (“Commis-
sion of a crime”); N.Y. Family Court Act §713 (McKinney 1962),
para. (a) Committee Comments (juvenile delinquent defined as “one
who commits a crime and requires official treatment”); D.C. Code §
3-120 (1967) (Juvenile Court has jurisdiction over “children 17 years
of age who shall be convicted of petty crimes or misdemeanors which
may be punishable with fine or imprisonment.”); Uniform Juvenile
Court Act § 2(2) (1968) (“delinquent act” defined as one “designated
a crime under the law.”) See also Gault, 387 U.S. at 49-50.
ae
16
222 N.E.2d 233 (Ill. Ct. App. 1966), this Court had de-
cided Kent, but not Gault. The Illinois Court initially ruled
that beyond a reasonable doubt was not the proper stand-
ard of proof to be applied to juvenile proceedings. On re-
view, however, and in light of the “transcendent spirit” of
Gault, the Illinois Supreme Court upset the finding that the
boy was delinquent.
The court acknowledged that Urbasek had not been de-
nied any of the specific rights which Gault had extended to
the adjudicatory stage of the juvenile court practice,'? but
held that application of any standard lower than “beyond
a reasonable doubt” would dilute the effect of the guaran-
tees which Gault assured for juveniles. To do so would not
be consonant with due process or equal protection.2° More-
over, it would not be constitutionally permissible, on a
quantum of proof lower than the criminal standard, to sub-
ject a child to a loss of liberty equal to or greater than that
which might be imposed on an adult for the commission of
the same act.?!
'°“While ... the respondent . . . was denied none of the rights [re-
quired, under due process of law, to be applied to juvenile court pro-
ceedings after Gault], it would seem that the reasons which caused
the Supreme Court to import the constitutional requirements of an
adversary criminal trial into delinquency hearings logically require that
a finding of delinquency for misconduct, which would be criminal if
charged against an adult, is valid only when the acts of delinquency
are proved beyond a reasonable doubt to have been committed by the
juvenile charged.” 232 N.E.2d at 719.
id.
*!“Since the same or even greater curtailment of freedom may at-
tach to a finding of delinquency than results from a criminal convic-
tion, we cannot say that it is constitutionally permissible to deprive
the minor of the benefit of the standard of proof distilled by cen-
turies of experience as a safeguard for adults.” /d. at 719-20. The
Illinois Court made clear that adherence to this reasonable doubt
standard would not weaken the unique benefits of the Illinois Juvenile
Court Act, nor would it require that this standard be applied in cases
(continued)
17
Five other recent state court decisions have specifically
dealt with the burden of proof issue. The case of State v.
Santana involved a 14 year old boy charged with rape. The
intermediate Court of Appeals, per its Chief Justice, 431
al'eging a violation of an ordinance (violation leading to a fine), since
no “possible loss of liberty for years” might result, as in an adjudica-
tion of delinquency. Jd. at 720. See In re Smith, 326 P.2d 835
(Crim. Ct. App. Okla. 1958), in which the court decided that, for pur-
poses of establishing the requisite burden of proof in a determination
of delinquency, a child must be accorded all the safeguards of a crimi-
nal trial where an unfavorable determination may result in detention
amounting to “grave” consequences. The clear implication of that
holding is that when grave consequences may result from a finding of
delinquency the determination must be made on the basis of the be-
yond a reasonable doubt standard. As in Smith, the youth in the in-
stant case faced the possibility of incarceration for a substantial num-
ber of years. The court noted at 839: “We are of the opinion rules
of procedure in a juvenile proceeding, where the life and liberty of
the juvenile delinquent is at stake, should be measured by the gravity
of the situation and the exigencies the case may impel. The ordinary
rules established and the regular processes provided to produce evidence
and to aid the court in testing and weighing it are not to be scrapped
because the proceeding is a summary one and findings of facts must
not rest upon hearsay. [Citation omitted.] Certainly a juvenile
should be subjected to no less protection than an adult. The law
throws every safeguard around the rights of an accused adult and his
enjoyment of those rights.” See also People ex rel. Rodello v. Dis-
trict Court, Denver County, 436 P.2d 672-76 (Colo. 1968), in which
the court remarked that the application of the reasonable doubt
standard would not convert a juvenile proceeding into a criminal one.
Of. Reed v. Duter, No. 17546 (7th Cir. Sept. 18, 1969), 6 Crim. L.
2081. Although the standard of proof was not in issue the court
suggested that “under Gault, there can be no constitutionally permis-
sible discrimination between the adult prisoner and the juvenile defen-
dant held in state custody.” The Seventh Circuit remarked further
that:
“Gault must be construed as incorporating in juvenile court pro-
cedures, which may lead to deprivation of liberty, all constitu-
tional safeguards of the Fifth and Sixth Amendments to the
Constitution of the United States which apply, by operation of
the Fourteenth Amendment, in criminal proceedings.”
tno ee Nah OO
18
S.W.2d $58 (Tex. Civ. Ct. App. 1968), held that the Constitu-
tion required the state to prove an act of delinquency be-
yond a reasonable doubt in proceedings which may result
in the youth being institutiona®: ed:
“[ T]he underlying reasoning of Gault logically requires
that a determination of delinquency is valid only when
the facts of delinquency are proved beyond a reason-
able doubt rather than by a preponderance of the evi-
dence as now required by the present Texas decisions.
We believe this is the clear and unmistaken effect of
that decision. In so holding, we are in agreement with
the interpretation of the Gault case by the Supreme
Court of Illinois in Jn re Urbasek.” 431 S.W.2d at 560.
But the Texas Supreme Court reversed the lower court and
retained the civil, preponderance test. 444 S.W.2d 614 (Tex.
1969). After reviewing the split on this precise question in
other state and federal courts, and after noting that “[t]he
facts in Gault were extreme,” the court chose to allow the
lower standard because “‘Gau/t does not require that the ju-
venile trial be adversary and criminal in nature.” 444 $.W.2d
at 622.
Justice Pope, writing for three dissenters in Sanatana, 444
S.W.2d at 623, interpreted Gault differently, disagreeing that
a lower standard of proof could in any way benefit the
youth.
“A juvenile court, therefore, which works with juve-
niles at the adjudicato-y stage, is at last a court; a
court which sits to resolve issues under principles of
due process, which is the best method yet devised for
fair play ....
“The real question then is not what is best for San-
tana; it is whether the reasonable doubt standard in a
proceeding of a felony grade which may lead to a dep-
rivation of liberty, is a part of due process . .
** * *
“Liberty is our real concern. Perhaps no greater
harm could come to Santana than the State’s mis-
guided efforts to rehabilitate him if, in fact, he is in-
—
19
nocent to begin with. His plea is that he wants fair-
ness first; therapy second. With equal logic, one could
have reasoned before Gault that the benefits of treat-
ment accorded a juvenile are so helpful and beneficial
to the juvenile that the State can be careless in notify-
ing him or his parents about the offense, or providing
him a lawyer, or permitting hearsay from an absent
complainant, or by tolerating his self incrimination.
The rights which Gault accords a juvenile reduce the
chances for unfairness and injustice. The reason for
the reasonable doubt rule is no different.” 444 S.W.2d
at 628.
A majority of the Supreme Court of Nebraska has ruled
in Debacker v. Brainard, 161 N.W.2d 508 (Neb. 1968), prob.
juris. noted, 393 U.S. 1076 (1969), appeal dismissed, 38
U.S. Law Week 4001 (1969), that the beyond a reasonable
doubt standard is constitutionally required in a juvenile
court proceeding.2? The case involved a 17 year old boy
who was charged with the crime of forgery. If the youth
had been charged under the general criminal laws, the pen-
alty for the offense would have been imprisonment for be-
tween one to twenty years and a fine up to $500.”* The
four judges who felt that the beyond a reasonable doubt
standard should be adopted to determine delinquency sug-
gested that:
2Under the holding of the court, four judges were of the opinion
that the Act requiring proof by a preponderance of the evidence rather
than beyond a reasonable doubt was unconstitutional. Since
Nebraska's constitution provides that no legislative enactment may be
held unconstitutional except by a concurrence of five judges, the
lower court's finding of delinquency using the lighter standard was
affirmed.
Bove 44 St. John’s L. Rev. 101, 109 (1969), which points out the
great disparity in confinement periods between that which could re-
sult from a conviction of an adult and that which might stem from
an unfavorable finding against the 12-year-old boy in the instant case.
In this connection see the discussion of waiver at text accompanying
notes 68-75 infra.
AA RN LI
a
“. . . a finding of delinquency, for misconduct which
would be criminal if charged against an adult, is valid
only when the acts of delinquency are proved beyond
a reasonable doubt to have been committed by the ju-
venile charged [citations omitted]. To the extent that
those provisions of the Juvenile Court Act incorporat-
ing a preponderance of the evidence standard for delin-
quency proceedings are in conflict, we also believe
they are unconstitutional and void.” 161 N.W.2d at
513.
While the Ohio Supreme Court has recently refused to
hold that the higher standard is required by due process in
juvenile proceedings, /n re Agler, 249 N.E. 2d 808 (Ohio
1969), it did insist that delinquency be proved by “clear
and convincing evidence.” /d. at 816. The Court upset an
intermediate state court’s opinion which had affirmed the
juvenile court’s conviction of the youth based on the pre-
ponderance standard. See 240 N.E. 2d 874, 875 (Ohio Ct.
‘App. 1968).25 The Supreme Court in Agler refused to
20
*This court dismissed the appeal after having noted probable juris-
diction, on the ground that, since there was no retroactive effect to
be given to its decision in Duncan v. Louisiana, 391 U.S. 145 (1968),
and Bloom v. Illinois, 391 U.S. 194 (1968), the juvenile “would have
had no constitutional right to a trial by jury if he had been tried as
an adult in a criminal proceeding” 38 U.S. Law Week at 4001.
*SThe Court of Appeals had emphasized the civil nature of juvenile
proceedings. Jd. at 876-77. But cf. Rodello, supra, note 21, where
the Court suggested that the adoption of the higher standard would
have no effect on the nature of the juvenile proceeding. The Court
of Appeals in Agler had felt constrained to decide the case in accord-
ance with its state’s legal precedent. See Jn re Whittington, 233 N.E.
2d 333 (Ohio Ct. App. 1967). This Court remanded Whittington
for reconsideration by the state court in light of Gault. In re Whit-
tington, 391 U.S. 341 (1968). The Ohio Supreme Court had held
(pre-Gault, post-Kent) that the preponderance standard was to apply
because the rehabilitative (versus punitive) goals of juvenile proceed-
ings emphasized the civil nature of such proceedings. Upon reconsid-
eration, the Ohio Court of Appeals did not treat the quantum of
proof issue. 245 N.E.2d 364 (Ohio Ct. App. 1969). The dissenting
opinion in the Court of Appeal’s decision in Agler suggested that
(Continued)
an 4
21
accept the classification of juvenile offenders as civil defend-
ants, and rejected the preponderance standard as being con-
stitutionally consistent with, or adequate under, Gault.
The court held:
“(T]he full protection of alleged delinquents empiri-
cally demands a broader application of any rule regard-
ing standard of proof. As noted by the Gault majority
(387 U.S., at 23-25, 87 S. Ct. 1428), long experience
has shown that despite commendable efforts to the
contrary, the suffering of a judgment of delinquency
can have a lasting detrimental effect upon a child’s
future. This is not to say that the noble experiment
has failed, but rather that one of the hopes attendant
to its development has not been fully realized. For
this reason, we conclude that any determination, of a
proper standard of proof in delinquency hearings must
there may well have been no precedent binding on the court. 240
N.E.2d at 879.
Prior to the Ohio Supreme Court’s holding in Agler one recent
decision seemed to suggest that Ohio might be moving towards the
adoption of the higher standard. See Jn re J. R., 242 N.E.2d 604,
605-06, (Juv. Ct. Cuyahoga County, Ohio 1968):
“Although the quantum of proof necessary for finding of de-
linquency, at time of the trial and at this writing, is a prepon-
derance of the evidence [citations omitted], the court in this
case had evidence in support of the petition that was beyond a
reasonable doubt.”
But see In re Benn, 247 N.E.2d 335 (Ohio Ct. App. 1969). In Benn,
the intermediate state court noted that it was affirming a case which
“exemplifies the fiction which allows the elision from ‘crime’ to
‘delinquency’ where a child is involved.... How long the illusion of
non¢-criminality can be maintained under the legerdemain of a Juve-
nile Code status determination is a matter of some dubiety.... With
deference, but reluctance, we conclude that juveniles in this state,
whose status is tested on matters criminal in adults, have no right to
a jury trial nor to have their condition measured by standards of
proof ‘beyond a reasonable doubt.’ ‘The condition of being a boy
still spells less procedurally than the condition of being a man in
— identical circumstances.” (Emphasis added.) 247 N.E.2d
at 337.
pte CR (OO IE
a
respond to the aspects of both deprivation of a child’s
liberty and the effect upon his future. . . .
“[W]le conclude that the burden of proof in those
juvenile hearings which can result in the child’s being
adjudged a delinquent, irrespective of disposition, need
not be beyond a reasonable doubt, but must be greater
than a mere preponderance of the evidence. The stand-
ard of proof which lends itself most logically to this
view of such proceedings, and which will best preserve
the special nature thereof, is that of clear and convinc-
ing evidence of the truth of the allegations contained
in the complaint.”” 249 N.E. 2d at 816.
The California Supreme Court also did not follow the
leadership provided by the Urbasek decision, nor did it even
go so far as the Ohio Supreme Court in Agler. In Jn re M,
450 P.2d 296 (Cal. 1969), the court considered a case
involving a 15-year-old boy who was charged with involun-
tary manslaughter and who was declared to be a ward of
the court. The court (Traynor, C.J., and three other jus-
tices concurring; one justice dissenting) held that the 1961
statute adopting the preponderance standard was not
“clearly, positively and unmistakably”’ unconstitutional,
450 P.2d at 305, and constitutional requirements did not
demand that delinquency be proved beyond a reasonable
doubt. As did the Court of Appeals in Agler, the Court
felt particularly bound by its earlier decisions.
22
Unlike the instant case, the evidence in M was clear and
the boy admitted that he had accidentally shot his girlfriend
dead with a gun which had been taken from an automobile
which he had previously stolen and abandoned.?°®
The court took a very limited view of Gault and indicated
that the Supreme Court, in Gault had taken “repeated pains
©Under the facts here, where the youth allegedly stole $112 from
the complainant’s pocketbook, the Family Court judge adopted the
statutory “preponderance” standard while admitting that the proof
did not satisfy the “beyond a reasonable doubt” standard. Jn re
Samuel W. v. Family Court, 299 N.Y.S.2d 414, 423 (1969). See
also In re Bigesby, 202 A.2d 785, N. 1 (D.C. Ct. App. 1964).
—
23
to limit its holding. . . ” 450 P.2d at 299. The California
Court concluded that:
“in the absence of a specific ruling on the issue
by the U.S. Supreme Court, we adhere to the pre-
Gault view of our courts that the established stand-
ard is valid and ‘No constitutional rights of the
appellant have been infringed by the use of the pre-
ponderance of the evidence test to determine the
truth of the allegation that he had committed a
crime.” Jd. at 305
In following the Gault statement that the juvenile court
hearing need not ‘“‘conform with all of the requirements of
a criminal trial or even of the usual administrative hearing”
387 U.S. at 30, the court refused to recognize the essen-
tially criminal nature of juvenile proceeding. It offered the
the euphemistic and unrealistic explanation that:
“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 crimi-
nality 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 proceedings retain a sui gen-
eris character: although certain basic rules of due pro-
cess must be observed, the proceedings are nevertheless
conducted for the protection and benefit of the youth
in question. In such circumstances, factors other than
‘moral certainty of guilt’ come into play: e.g., the ad-
vantages of maintaining a non-criminal atmosphere
throughout the hearing, and the need for speedy and
individualized rehabilitative services. Indeed, the
youth’s alleged crime may often be only the latest or
most overt symptom of an underlying behavioral or per-
sonality 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 charged ~—al-
though the very heart of an adult criminal prosecution—
ooympesrreenaennet am
ay
24
may not in fact be critical to the proper disposition of
many juvenile cases. On the contrary, in the latter the
best interest of youth may well be served by a prompt
factual decision at a level short of ‘moral certainty.’ ”
450 P.2d at 302-03.
Judge Peters in dissent responded vigorously to the ma-
jority position. He suggested that Gault:
“« _. . stands for the proposition that a minor must be
afforded the same rights granted a defendant in a crim-
inal case unless there are compelling reasons why such
rights should not be granted, and that state decisions
and statutes providing to the contrary are violative of
the United States Constitution. This fundamental les-
son of the Gault decision is disregarded by the major-
ity. Certainly the right to a jury trial and the right to
insist that guilt be shown beyond a reasonable doubt
are fundamental and constitutional rights in a criminal
case. This the majority concede. But the majority
contend that the determination that the minor shall
be a ward of the court is not criminal in nature ....
Certainly to the minor the proceedings are adversary
and criminal in nature. The determination that the
minor shall be a ward of the court may result in the
confinement of the minor during minority and com-
plete restriction on his freedom of action. Realistically,
a proceeding that may result in such confinement and
restraint is adversary in nature and criminal in effect.
To hold that such a proceeding is not adversary in na-
ture and criminal in effect is to close one’s eyes to the
realities of the situation, and, as well, is contrary to
the teachings of Gault.” Id. at 309
In State v. Arenas, 453 P.2d 915 (Ore. 1969) (en banc),
the Oregon Supreme Court also dealt with the quantum of
proof issue in a case involving a 16-year-old boy who was
charged with an assault with a dangerous weapon. The
Court, though granting that an adult’s right to be found
guilty beyond a reasonable doubt when he is charged with
a crime is one inherent in the Due Process Clause of the
Federal and Oregon constitutions, felt particularly restricted
rr ——————— |
25
by the state’s legislative decision to adopt the preponderance
standard.
The Oregon Supreme Court noted that the requisite de-
gree of proof “‘is closely related to the basic philosophy of
juvenile law ‘to deal with the child because he needs cor-
rective treatment,’ not because he is ‘guilty’ of a ‘crime.’ ”
Id. at 918. The court added:
If the constitution requires that a juvenile cannot
come within the jurisdiction of the court unless crim-
inal conduct is proved beyond a reasonable doubt, the
great juvenile experiment is over.” Jd. at 919.
Justice O’Connell, dissenting in Arenas, noted that:
‘“« _ . procedure designed to determine whether a child
will be incarcerated is essentially criminal procedure.
Since the procedure is criminal in nature there is as
much reason to require the proof beyond a reasonable
doubt in determining the guilt of a child as there is in
determining the guilt of an adult.”
He added:
“Although the equal protection clause of the Four-
teenth Amendment does not require an across-the-board
similarity of criminal procedure for adults and children,
that clause does require the child to have the same pro-
tection as an adult where the character of the procedure
has no relationship to the ends that are served by deal-
ing with a child in accordance with the parens patrial
concept when a child is charged with the commission
of an act which is a crime if committed by an adult,
the question of whether the child committed the act
must be resolved by the trier of fact before the trial
judge takes over and attempts to apply the theories of
juvenile rehabilitation. It seems to me that this pre-
liminary question of guilt should be determined by the
same test whether the accused is an adult or a child. . . .
Since the relaxation of the burden of proof subjects
the child to the risk of incarceration it becomes an
integral part of a criminal procedure which, according
to the reasoning of Gault, must operate to protect the
child to the same extent as it would an adult.” Jd. at
921.
aay
26
The District of Columbia has also refused to relax its
restrictive view that a determination of delinquency is not
in the nature of a criminal adjudication, and, therefore, does
not constitutionally require the adoption of the higher stand-
ard of proof in juvenile proceedings. In Jn re Ellis, 253
A.2d 789 (D.C. Ct. App. 1969), the District of Columbia
Court of Appeals said:
“While we have not failed to follow the ruling of Gault
in those cases where it clearly applies, Gault did not de-
cide the question of the quantum of proof required in
juvenile cases. We are therefore not persuaded at this
time that we should apply the philosophy of Gault in
order to predict what the Supreme Court might decide
if faced with the same question. We are reluctant to con-
demn or abandon a long standing and useful practice
unless the unconstitutionality of that practice is plain
and manifest. Hicks v. District of Columbia, D.C. App.
197 A.2d 154, 155 (1964).”
“Concededly there are points of similarity between a
juvenile proceeding and a criminal trial. Nonetheless,
hearings held before the Juvenile Court remain civil in
nature and differ significantly from their criminal
counterpart. By statute, the records of juvenile cases
are not open to public inspection. Hearings are also
closed to the public. Furthermore, a child adjudged
delinquent is neither deemed nor treated as a criminal.
No civil disabilities are imposed upon him and he is
not disqualified from civil service. The purpose and
rationale behind such safeguards and, indeed, the very
procedure governing treatment of such juveniles is the
care, needs and protection of the minor and his reha-
bilitation and restoration to useful citizenship. /n re
Elmore, D.C. App. 222 A.2d 255, 257, 259 (1966),
reversed and remanded on other grounds, 127 U.S.
App. D.C. 176, 382 F.2d 125 (1967). A flexible ap-
proach to juvenile proceedings is the best manner in
which to achieve these ends. The safeguards which
surround him do not inherently derive from the Con-
stitution but from the social welfare philosophy which
27
forms the historical background of the Juvenile Court
Act.” 253 A.2d at 790.?’
Another recent judicial pronouncement on the burden of
proof standard in juvenile proceedings came in a decision
rendered by the Fourth Circuit, United States v. Costanzo,
395 F.2d 441 (4th Cir. 1968).28 Although the case dealt
with federal juvenile proceedings, the court’s language is
noteworthy. In dealing with a 17 year old youth who had
been charged with illegal interstate transportation of an
automobile, the court remarked:
“Our precise question then is whether for purposes of
the required quantum of evidence, no less than for
notice, counsel, cross-examination, and the privilege
against self-incrimination, a federal juvenile proceeding
which may lead to institutional commitment must be
regarded as criminal. We hold that it must be so re-
garded. No verbal manipulation or use of a benign
label can convert a four-year commitment following
conviction into a civil proceeding. See Gault, 87 S.
Ct. 1428 (1966). The Government’s burden in a ju-
venile case, therefore, is to prove all elements of the
offense ‘beyond a reasonable doubt,’ just as in a pro-
secution against an adult. We see a compelling simi-
larity between the enumerated safeguards due a juve-
See In re Hill, 253 A.2d 791 (D.C. Ct. App. 1969); Jn re Bum-
phus, 254 A.2d 400 (D.C. Ct. App. 1969); In re Wylie, 231 A.2d 81
(D.C. Ct. App. 1967); In re Elmore, 222 A.2d 255 (D.C. Ct. App.
1966), modified, 382 F.2d 125 (D.C. Cir. 1967); In re Bigesby, 202
A.2d 785 (D.C. Ct. App. 1964). The Illinois Supreme Court in Ur-
basek specifically noted that the decisions in Wylie and Bigesby did
not “comport with the recurrent theme of the majority in Gault.”
232 N.E.2d at 719.
Prior to the decision in Costanzo another federal court had before
it the question of whether a proceeding under the Federal Juvenile
Delinquency Act required proof of guilt beyond a reasonable doubt.
See Paige v. United States, 394 F.2d 105 (Sth Cir. 1968). The court
did not decide the question, since it was of the opinion that the proof
was not sufficient under either civil or criminal standards. But cf. _
United States v. Essex, 275 F.Supp. 393 (E.D. Tenn. 1967), rev'd on
other grounds, 407 F.2d 214 (6th Cir. 1969).
28
nile in as full measure as an adult and the requirement
of proof beyond a reasonable doubt. In practical
importance to a person charged with crime the insist-
ence upon a high degree of proof ranks as high as any
other protection; and if young and old are entitled to
equal treatment in the one respect, we can think of no
reason for tolerating an inequality in the other.”
After noting that Jones and Urbasek were in ‘‘conformity
... With the Supreme Court’s teachings’ in Gault, the court
continued:
“For nearly two centuries this higher standard of proof
required in criminal cases has been recognized as a
basic procedural safeguard and has been adopted by
virtually every jurisdiction in this country. See IX,
Wigmore on Evidence 82497 (3d ed. 1940, Supp. 1964);
see also McCormick, Evidence 8321 (1954). The Su-
preme Court has termed the Government’s obligation
to prove every element of the offense beyond a rea-
sonable doubt ‘a settled standard of the criminal law.’
Holland v. United States, 348 U.S. 121, 138 (1954).
“In Brinegar v. United States, 338 U.S. 1607174
- (1949), the Court observed that, ‘Guilt in a criminal
cause must be proved beyond a reasonable doubt,’ and
explained that requirement in Speiser v. Randall, 357
U.S. 513, 525-26. It would appear a patent violation
of due process and equal protection of the law if a
juvenile were found to have committed a crime on less
evidence than would be required in the case of an adult,
especially since the consequences of the adjudications
are essentially the same. Gault makes it abundantly
clear that ‘under our Constitution, the condition of
being a boy does not justify a kangaroo court.’ Jn re
Gault, supra, 387 U.S. at 28.
“If we had to decide this case on the standard of proof
issue tendered by the Government, we would be com-
pelled to reverse, for the diluted measure proposed for
juvenile cases is predicated upon a logic the cogency
of which has been utterly devastated.” (Emphasis
added.) (Some citations omitted.) 395 F.2d at 444-
45.
_
Perhaps no judge has more powerfully characterized the
restraint imposed on the liberty of an incarcerated juvenile
than Judge DeCiantis of the Rhode Island Family Court:
“The individual liberty of a juvenile is restrained
once he is committed to an agency or to the training
school. He is supervised, guarded, and punished. He
has no choice. He must obey the rules and the orders
given to him while he is at the training school. He
cannot go home at will. He cannot do what he desires.
He is a prisoner just as much as the adult in the state’s
prison. Not only is he deprived of his liberty, but he
is also subject . . . to disciplinary measures accorded to
adults and can be subjected to cruel and inhuman
punishment, which does exist. * * *
29
“Because the legislature dictates that a child who
commits a felony shall be called a delinquent, does not
change the nature of the crime. Let’s face it, murder
is murder; robbery is robbery; they are both criminal
offenses, not civil, regardless and independent of the
age of the doer. Nothing can change the nature of the
act which has been committed.
“With respect to the argument that confinement of
a delinquent is not punishment, the court would like
to point out that committing a boy who has been de-
clared a delinquent to the Training School is not trot-
ting him to Sunday school, to a World Series Game,
or his favorite swimming hole. Neither is releasing
him from a Training School the same as graduating
him from a high school or a junior college. Let’s come
down to earth and be realistic: the quicker we do,
the better it will be for all. Let us not deal with a
criminal matter in a civil way, with the result that we
have a ‘hodge podge’ of nothingness.
“IT am convinced that unless there is a separation of
civil process from criminal process, the system of ju-
venile methods will remain congested with many theo-
ries, philosophies and inflated dreams of social-minded
reforms, which is detrimental to the juvenile in that
it deprives him of his constitutional guarantees and in-
dividual liberty. All of the safeguards that are afforded
to an adult criminal trial should be, and constitutionally
noe TET
~——
30
must be applied to a juvenile case, even including that
of the right to trial by a jury of his peers, as well as a
finding of guilt beyond a reasonable doubt, rather than
by a preponderance of the evidence. Then, and only
then, will uniformity and due process prevail and the
juvenile, the police, the court, and everyone else con-
cerned will know where they are headed.” (Emphasis
added.) Jn re Rindell, 36 U.S. Law Week 2468 (R.I.
Fam. Ct. Jan. 10, 1968).
2. Legislators, Independent Committees and Com-
mentators Have Recognized That It Is Constitu-
tionally Impermissible to Deny A Youth His
Freedom On The Basis Of The Preponderance
Standard.
Legislatures and legislative committees are, like courts, at
last beginning to recognize the necessity for a criminal stand-
ard of proof in juvenile proceedings. Thus, at least four states
have already adopted the reasonable doubt standard, by stat-
ute or rule.2 Moreover, at its 1968 annual conference, the
National Conference of Commissioners on Uniform State
Laws recommended that all states enact the Uniform Juve-
nile Court Act?! which they felt reflects a sound and prac-
tical approach in light of Gault and Kent. The prefatory
note to the Act states in part:
“In both cases [Gault and Kent] the language of the
opinions and the implications contained in them go
beyond the specific holdings. They indicate that if the
derartures in juvenile court from criminal procedures
are to be justified when delinquent conduct is alleged
involving what for an adult would be a criminal act,
the juvenile court proceedings and dispositions must
be governed in fact by the objectives of treatment and
Colo. Rev. Stat. 22-3-6 (Supp. 1967); Md. Ann. Code, Art. 26
§ 70-18(a) (Cum. Supp. 1969); New Jersey Court Rules, Rule 9-1(f),
effective September 11, 1967; Juvenile Court Rule 4.4(b), as adopted
by the Washington Judicial Council, effective January 10, 1969.
Philadelphia, Pa. (July 22-August 1, 1968).
3! Uniform Juvenile Court Act (1968).
31
rehabilitation. If the approach is a punitive one, these
cases indicate that the procedure must adhere to the
constitutional requirements which characterize a crimi-
nal proceeding.
“The Uniform Juvenile Court Act has been drawn with
a view to fully meeting the mandates of these decisions.
At the same time, the aim has been to preserve the basic
objectives of the juvenile court system and to promote
their achievement. In short, the Act provides for judi-
cial intervention when necessary for the care of deprived
children and for the treatment and rehabilitation of
delinquent and unruly children, but under defined rules
of law and through fair and constitutional procedure.”
The Uniform Juvenile Court Act also adopts the beyond a
reasonable doubt standard for findings of delinquency:>?
“If the court finds on proof beyond a reasonable doubt
that the child committed the acts by reason of which
he is alleged to be delinquent or unruly, it shall proceed
immediately or at a postponed hearing to hear evidence
as to whether the child is in need of treatment or re-
habilitation and to make and file its findings thereon.”’>4
Section 2(2) of the Uniform Act defines a “delinquent act” as
one “designated a crime under the law”. In Gault, this Court speci-
: fically noted that, for purposes of the Fifth Amendment privilege
against self-incrimination, juvenile delinquency proceedings which
may lead to commitment to a state institution are criminal in nature.
387 US. at 49-50: “To hold otherwise would be to disregard sub-
stance because of the feeble enticement of the civil label-of-convenience
which has been attached to juvenile proceedings.”
37d. at §2%(b). The Comment to this section asserts:
“More is required to sustain a finding of delinquency, unruly
conduct or deprivation than a preponderance of evidence. Since
the child’s liberty or the parent's right to his custody is involved,
at least ‘clear and convincing evidence’ should be required. The
Illinois Supreme Court has recently held that implications of the
Gault case require that proof must be beyond a reasonable
doubt to support a finding of delinquency. This section follows
the Illinois view in delinquency and unruly cases, but adopts the
(continued)
m=
The recently promulgated Guides for Drafting Family and |
Juvenile Court Acts, adopted by the Children’s Bureau of
the Department of HEW’s Social and Rehabilitation Serv-
ice, also recommend the use of the criminal standard in
determinations of delinquency.**
Commentators have also emphasized that a youth is
denied a constitutional right when he is adjudged a delin-
quent by the preponderance standard.*> Indeed, two recent
32
clear and convincing evidence, rule in deprivation cases and in
determining the need for treatment or rehabilitation.”
Cf. Model Rules for Juv. Ct. Rule 26 (Final Draft 1968), drafted by the
Council of Judges of the National Council of Crime and Delinquency
which did not go so far as to adopt a reasonable doubt standard but
did reject the preponderance standard:
“While the adjudicatory hearing is non-criminal in nature, and
therefore is not bound by the reasonable procedure requirement
of proof beyond a reasonable doubt, the serious nature of the
adjudication demands that the allegations of the petition be
proved by more than a mere preponderance of the evidence.
The allegations should be demonstrated by clear and convincing
evidence, which is the standard used in civil cases for issues of
special gravity, such as fraud.”” Rule 26, Comment.
It was clear that the Council felt reluctant to adopt the reasonable
doubt standard only because this Court had not specifically dealt
with and ruled in favor of that standard in Whittington. See Rule 26,
Comment:
“Note. The United States Supreme Court has granted certiorari
in a case in which the failure of the juvenile court to find a
child delinquent ‘beyond a reasonable doubt’ is assigned as
error. ... The publication of the Rules will be held up to incor-
porate the holdings in the Whittington case.”
Whittington is discussed in note 25, supra.
*Guides for Drafting Family and Juvenile Court Acts, Dept. of
Health, Education and Welfare, Social and Rehabilitation Service
(Children’s Bureau) § 32(c)( 1969).
38 See, e.g., Waite, How Far Can Court Procedure be Socialized With-
out Impairing Individual Rights, 12 J. Crim. L., C.&P.S. 339, 344
(1921); Note, Juvenile Courts: Applicability of Constitutional Safe-
guards and Rules of Evidence to Proceedings, 41 Corn. L.Q. 147, 153
(1955); Rappeport, Determination of Delinquency in the Juvenile
(continued)
7_
33
notes on the instant case, in favoring the adoption of the
“beyond a reasonable doubt” standard, have respectively
suggested that the Court of Appeals’ decision had produced
a “hiatus in New York’s Juvenile Law’™ and that it would
“unfortunately deny the youngster accused of a crime the
protections inherent within the Constitution.”>”
These court decisions, state statutes, recommendations
and commentators’ opinions reflect a significant body of
respected authority which recognizes that both policy and
the Constitution compel the adoption of the higher stand-
ard of proof in order to safeguard the fundamental rights
of a youth charged with committing a delinquent act. As
Gault so vigorously asserted:
“A proceeding where the issue is whether the child
will be found to be ‘delinquent’ and subjected to the
loss of his liberty for years is comparable in serious-
ness to a felony prosecution.””*8
C. The Stigmatizing Effect of a Conviction In The |
Juvenile Court Is At Least Equal To That Which
Stems From A Conviction In An Adult Criminal
Proceeding.
It has always been contended that one of the most bene-
ficial aspects of the juvenile court process was the avoidance
of any classification of the youth as a “criminal.” For ex-
ample, in most states specific statutory language supports
the benign view that a finding of delinquency is not intended
to have the same stigmatizing effect as a criminal convic-
tion:
Court. A Suggested Approach, 1958 Wash. U.L.Q. 123, 149-151;
Antieau, Constitutional Rights in Juvenile Courts, 46 Corn. L.Q. 387,
412 (1961); 37 U. Cin. L. Rev. 851 (1968); Cohen, The Standard of
Proof in Juvenile Proceedings; Gault Beyond a Reasonable Doubt, 68
Mich. L. Rev. ___ (1970) (article forthcoming in Jan., 1970 and
available upon request).
%44 St. John’s L. Rev. 101, 111 (1969).
3720 Syr. L. Rev. 1009, 1013 (1969).
3387 US. at 36.
a
34
“No adjudication by the juvenile court upon the
status of a child shall be deemed a conviction nor shall
the adjudication operate to impose any of the civil
disabilities ordinarily resulting from conviction. The
adjudication and the evidence given in the court-shall
not operate to disqualify the child in any future civil
or military service application or appointment.’’°9
But over 20 years ago, the court in Jones noted that:
“The judgment against a youth that he is delinquent
is a serious reflection upon his character and habits.
The stain against him is not removed merely because
the statute says no judgment in this particular proceeda-
ing shall be deemed a conviction for crime or so con-
sidered. The stigma of conviction will reflect upon him
for life. It hurts his self-respect. It may, at some in-
opportune, unfortunate moment, rear its ugly head to
destroy his opportunity for advancement, and blast his
ambition to build up a character and reputation en-
titling him to the esteem and respect of his fellow
man. Nor is the implication that he has wilfully sworn
to a falsehood to prevent a conviction to be disre-
garded lightly. Guilt should be proven by evidence
which leaves no reasonable doubt. Inferences must
give way when in conflict with facts established by
positive proof.” (Emphasis added.) 38 S.E. 2d
at 447,40
Other distinguished American jurists have not failed to
comment on this fiction. Few remarks, however, have been
so incisive in language or forceful in tone as that of Mr.
Justice Musmanno of the Pennsylvania Supreme Court. Dis-
senting in Jn re Holmes, 109 A.2d 523, 528-29 (Pa. 1954)
he cogently noted that the words of the majority (denying
that any taint of criminality attached to a finding of delin-
quency):
®Neb. Rev. Stat. § 43-206.03(5) (1943). See also, e.g., N.J. Stat
Ann. § 2A:4-39 (1952); N.Y. Family Ct. Act, 8 782-784 (McKinney
1963); D.C. Code § 16-2308(d)\ 1967).
See State v. Santana, 444 S.W.2d 614, 624 (Tex. 1969) (dissent).
RN aa
35
“|. are put together so as to form beautiful langu-
age but unfortunately the charitable thought expressed
therein does not square with the realities of life. To
say that a graduate of a reform school is not to be
‘deemed a criminal’ is very praiseworthy but this placid
bromide commands no authority in the fiercely com-
petitive fields of everyday modern life.”
This Court has also recently questioned whether under
modern circumstances it is realistic to assert that no taint
of criminality attaches to a finding of delinquency. In
Gault, the Court asserted that it was “disconcerting” that
the term “‘delinquent”’ had come to have “only slightly less
stigma than the term ‘criminal applied to adults’.”’*!
Supportive of the stigmatizing effect which a conviction
of a criminal offense carries with it is some recent data
which has been compiled in the District of Columbia. This
data makes it abundantly clear that institutionalized “‘treat-
ment”’ in a juvenile detention center may have some very
negative implications for the juvenile delinquent.
In the District of Columbia, the inspection and use of
Juvenile Court records is by law limited to the juvenile,
his parents, their duly authorized attorney, institutions or
agencies having custody of the juvenile, and other “interested
persons, institutions, and agencies by special order of the
court;"42 with violations punishable by a $100 fine or
ninety days or both.*? Juvenile Court rules supplement the
District of Columbia Code by allowing other courts in the
District of Columbia to see such records upon request.“ In
41387 U.S. at 23-24. A noted sociologist and authority in the
field of juvenile delinquency has also remarked:
“delinquency carries a stigma quite comparable to that
attached to the criminal status. In many cases the adjudication
and other related experiences may be a more severe psychic blow
to the child than criminal conviction is to the adult.” Tappan,
Crime, Justice and Correction 392 (1960).
“D.C. Code § 11-1586(a)(1967)
D.C. Code § 11-1586(c) (1967)
“4D.C. Juvenile Ct. Rules, Rule 4B-2(c) (1965, as amended.)
—y
36
addition, the Board of Commissioners (now Mayor-Commis-
sioner) of the District of Columbia promulgated regulations
in 1967 which make the police department’s use of juvenile
offender records subject to the aforegoing statutory limita-
tions.“ However, and in spite of the District of Columbia
Code’s assertion that a juvenile conviction is not a criminal
conviction and does not “operate to impose any of the civil
disabilities ordinarily imposed by conviction,” juvenile court
records (or knowledge thereof) are disclosed in various cir-
cumstances which stigmatize the youth.
There are several ways by which juvenile records become
available. The most common is waiver by the juvenile him-
self. For example, the Juvenile Court will release a juvenile
record (charges and dispositions) to the military when given
a signed authorization by the person whose record is re-
quested.*” In other cases this waiver occurs with a prospec-
tive enlistee is asked to sign an oath concerning his juvenile
and adult criminal record.**
Juvenile records can also be disclosed by social work
agencies referring people for employment. The Offender
4SRevisions and Adoption of Recommendations to Investigate the
Effect of Police Arrest Records on Employment Opportunities in the
District of Columbia (Oct. 31, 1967). See also D.C. Code § 4-134(a)
(1967).
D.C. Code § 16-2308(d) (1967).
“Interview with Edgar J. Silverman, Director of Social Services,
D.C. Juvenile Court, November 5, 1969. Applicants for a license to
drive a taxicab in the District of Columbia must list juvenile convic-
tions on the application and sign a waiver form for the juvenile record.
Interview with Officer Evans, Hack Inspection Office of the District
of Columbia, November 5, 6, 1969.
48Interview with Sgt. Sanders, U.S. Army recruiter, November 4,
1969.
- LE
37
Rehabilitation Project? Project Crossroads®° and Job Corps*?
feel obligated to disclose a youth’s criminal record to a pros-
pective employer in order to place him in a job.*? Interviews
with members of these agencies indicated that such disclos-
ure made it difficult to place people with some employers.
Employment investigations may also lead to the revelation
of juvenile records. Although Federal Employment Form
171 does not require a listing of offenses committed before
age 18,3 investigations for security clearances often reveal
an applicant’s juvenile conviction in interviews with friends,
neighbors, and school authorities.™
The Juvenile Court as a matter of course or upon special
request releases arrest and disposition information to other
government agencies in the District of Columbia. A juvenile’s
Interview with Miss Donna Rowles, Program Developer Offender
Rehabilitation Division of the Legal Aid Agency of the District of
Columbia, November 7, 1969.
Interview with Mr. Daniel Little, Job Developer, Project Cross-
roads, District of Columbia, November 4, 7, 1969.
5!Interview with Miss Susan Best, Job Corps, District of Columbia,
November 3, 1969.
°2Mr. John White of MATESA (Manpower Training and Employ-
ment Service Agency, formerly USES) indicated that his agency usually
does not inform employers of a person’s juvenile arrest or conviction
record, although he considers such information in making a job place-
ment. Interview, November 5, 1969. See also In re Gault, 387 U.S. at
24-25; PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND AD-
MINISTRATION OF JusTICE: THE CHALLENGE OF CRIME IN A FREE
SocieTY 75 (1967): “There is evidence that many employers make
improper use of [juvenile] records despite the supposed confidential-
ity that surrounds them.”
S3FEDERAL PERSONNEL MANUAL, ch. 731, § 2.5-2.6.
Interview with Mr. James Evans, Bureau of Training, Civil Service
Commission, November 5, 1969.
i,
38
public school, for example, is routinely sent a record of
charges and dispositions against a youth.*> While there is
no specific statutory authorization for such disclosure, it is
apparently done pursuant to an “ongoing special order” of
the Chief Judge of the Court.*® Juvenile records are also
disclosed to the D.C. Bail Agency, an arm of the adult court
which gathers bail information. In practice, if the person
does not volunteer his juvenile record, the Bail Agency gets
it from the Court.57 Furthermore, probation officers of the
adult courts in the District have unhindered access to juve-
nile records in preparing their pre-sentence reports.*8
The actual impact of such disclosures is difficult to mea-
sure qualitatively. It may be assumed, however, that mere
identification as a juvenile offender will have some detri-
mental effect on the individual whose record is disclosed.*?
A potential Armed Services enlistee with a juvenile convic-
tion must have his application reviewed by a waiver board.
Presently, neither the Navy nor the Air Force will even pro-
cess an application requiring waiver of an adult or juvenile
conviction record,” while the Army bars admission to its
5SSilverman Interview, note 47 supra: Mr. Donald Bennett, Clerk
of the Court of the D.C. Juvenile Court indicated that he will disclose
a juvenile record to a school only if he “knows the school people and
how they will use the information.” Interview, October 29, 1969.
If such a special order was ever put in writing, no one had a copy
of it. Silverman Interview, note 47 supra.
‘’This material is always used in setting release conditions in the
adult court. Interview with Mr. Bruce Beaudin, Director, D.C. Bail
Agency, November 4, 1969.
58 Administrative Office of the United States Courts. “The Pre-
sentence Investigative Report” Publication No. 103 Division of Proba-
tion, at 11.
*® Rowles, Little, Best, Interviews, notes 49-51 supra.
Interviews with Chief Petty Officer Fortier, U.S. Navy and Sgt.
Miles, Air Force recruiter, November 4, 1969.
39
officer programs.®! Moreover, advancement and security
clearances under Civil Service often include an evaluation
of a person’s juvenile conviction record.”
Even the Hack Inspection Office considers the juvenile
record in processing taxi cab license applications, though it
has been asserted that a record is “not counted for too
much.” And in the very critical field of education, the
Director of Admissions of one reputable university has in-
dicated that “‘parents should be entitled to know what type
of children their children are attending school with” and
therefore there is a question about juvenile convictions on
its admissions application form. The Director of Admis-
sions also suggested that a youth “in trouble with the police”
would not get a recommendation from the high school.
Therefore, despite the fact that a youth is not labelled a
“criminal,” and despite the fact that statutes suggest that
the conviction of a boy for a criminal offense will not im-
pose any of the normal civil disabilities, these recent inter-
views in the District of Columbia clearly suggest that a
youth is subjected to a variety of very subtle, if not direct,
biases as he attempts to make his way through the adult
world in an honest endeavor to live down his youthful trans-
gressions.
6! Interview with Sgt.’s Hughes, and Sanders, Army Recruiting Di-
vision, Washington, D.C., November 4, 1969. See also Army Regula-
tions, Rule 3-9 (1969).
62 James Evans Interview, note 54 supra.
Officer Evans Interview, note 47 supra.
“Interview with Mr. Brown, Director of Admissions, Howard Uni-
versity on November 5, 1969.
Sig.
—
D. The Discretionary Authority By Which A Child
May Be Transferred To An Adult Court For Trial
Under The Reasonable Doubt Standard Constitutes
A Denial Of Equal Protection.
The matter involving Samuel Winship offers a cogent ex-
ample of the disadvantage at which a juvenile is placed in re-
lation to his adult counterpart. Samuel Winship, a youth of
only 12 years of age, was charged with stealing $112 from
the complainant’s pocketbook. As one recent note on the
instant case pointed out: |
“An adult who committed Samuel W.’s offense
would have been charged with one of the following
crimes: robbery in the third degree; grand larceny in
the third degree; or petit larceny. The adult offender,
convicted and sentenced by proof beyond a reasonable
doubt, could conceivably be released after less than
one year imprisonment. A teenager entitled to ‘youth-
ful offender’ treatment (ages 16 to 19) would enjoy
all the protections and guarantees available to the adult,
including conviction only upon proof beyond a reason-
able doubt and early release. Yet, because Samuel W.
was only twelve years old, he was confronted with a
period of incarceration ranging up to nine years. Thus,
a child subject to the benevolence and safe keeping of
the family court, where culpability is assessed by a
‘fair preponderance of the evidence,’ is actually bur-
dened with a longer sentence than is the ‘hardened
criminal.’ At the very least, such a disposition is il-
logical.”® (Citations omitted.)
The loss of Samuel’s liberty is, therefore, not an illusory
fear.®’
40
44 St. John’s L. Rev. 101, 109 (1969).
®7In Gault, this Court required the application of a variety of pro-
cedural safeguards to a 15-year-old boy who had been charged with
making lewd telephone calls. In the matter now before this Court,
a much younger boy has been charged with a more serious offense
that may result in a substantially longer period of detention than was
involved in Gault.
—
41
Compounding the discrimination between adults and ju-
veniles are laws in most jurisdictions which permit the
juvenile court (or the prosecutor), at its discretion, to
“waive” a youth charged with committing a crime to an
adult court for a full-scale criminal trial.©? The result of
such a waiver is to give the waived youth the benefit of the
“reasonable doubt” standard, while the nonwaived juvenile
may be found guilty on a lower quantum of proof. It
should also be noted that the statutes which provide for
waiver do not seem to entitle the juvenile to choose to be
See, e.g., Pritchard v. Downie, 216 F.Supp. 621 (E.D. Ark. 1963),
aff'd, 326 F.2d 323 (8th Cir. 1964); State v. Brinkley, 189 S.W.2d
314, 333 (Mo. 1945); Fugate v. Ronin, 91 N.W.2d 240 (Neb. 1958);
Gerak v. State, 153 N.E. 902 (Ohio Ct. App. 1920):
“The statutes conferring jurisdiction on the common pleas court
have always included the right to try ‘whoever’ commits a felony,
which, of course, includes minors. That court has long exer-
cised such jurisdiction, such statutes have not been specifically
amended in this particular, and there can be no question that
the common pleas court still has jurisdiction to try minors, as
well as adults, who commit felonies, unless the provisions of
the Juvenile Court Act limit such jurisdiction. As has been
said, that act does not expressly limit such jurisdiction of the
common pleas court; neither does it confer such jurisdiction
upon any other court.”
® See, e.g, Lyon v. Commonwealth, 131 S.E.2d 407 (Va. 1963);
State v. Van Buren, 150 A.2d 649 (N.J. 1959); State v. Doyal, 286
P.2d 306 (N.M. 1955). Where few criteria for waiver are delineated
in the statute, their formulation is a task residing with the juvenile
court. See, e.g., Kent v. United States, 383 U.S. 541, 553 (1966).
Even when waiver has been accomplished, the court to which the
child has been waived may be faced with the difficult task of decid-
ing whether it should conduct the case as one of delinquency, as op-
posed to one under the general criminal law. See, e.g., United States
v. Caviness, 239 F.Supp. 545 (D.D.C. 1965). The onus is on the
youth to petition the court for invocation of the delinquency proce-
dures. See, e.g., United States v. Anonymous, 176 F.Supp. 325 (D.
D.C. 1959).
’
<a tei
—
42
waived in order to benefit from the higher standard; the
choice is the court’s or prosecutor’s alone.”
Consider, for example, the effect of the present waiver
statute in the District of Columbia,”! allowing the court to
waive a 16-18 year old accused of a felony to the United
States District Court.
Assume that a 17 year old youth is caught “red-handed”
committing a robbery. Further assume that there is at least
some question as to the factual issues in the case. Under a
preponderance standard, conviction is assured. If proof is
required beyond a reasonable doubt, the boy has a chance
of being freed. The Juvenile Court judge now has the dis-
cretion to decide whether the youth shall be tried accord-
ing to the higher or lower standard. This constitutes a
denial of the equal protection of the laws as between juve-
niles tried for the same crime in the two different courts.
Nor is such a discrimination mitigated by the fact that
the nonwaived juvenile faces a lower maximum penalty than
But cf. State v. Lindsey’s Interest, 300 P.2d 491, 494 (Idaho
1956), where a 17 year old was held to have waived treatment as a
juvenile delinquent by his assertion of certain constitutional rights
and by his “right to be prosecuted under the criminal law.”
71 § 11-1553. Waiver of jurisdiction in case of felony and transfer
of case. When a child 16 years of age or over is charged with an of-
fense which if committed by a person 18 years of age or over is a
felony, or when a child under 18 years of age is charged with an of-
fense which if committed by a person 18 years of age or over is pun-
ishable by death or life imprisonment, a judge may, after full investi-
gation, waive jurisdiction and order the child held for trial under the
regular procedure of the court which would have jurisdiction of the
offense if committed by a person 18 years of age or over; or the
other court may exercise the powers conferred upon the Juvenile
Court by this chapter and subchapter 1 of chapter 23 of Title 16 in
conducting and disposing of such cases.” See note 15, supra.
43
the waived juvenile.” Juveniles may not, any more than
adults, be coerced into waiving basic rights because of the
fear of increased punishment if they choose to exercise
them. This was the clear holding of Nieves v. United States,
280 F.Supp. 944 (S.D.N.Y. 1968), involving a juvenile’s
right to jury trial in the federal courts.
“The alternatives presented exert strong pressure on
any juvenile defendant to waive his Sixth Amendment
right. Though he may well prefer to have the trier of
facts be a jury of twelve, the cost of such an election
is very nearly prohibitive. Such a Hobson’s choice is
not without parallel in other areas of criminal proce-
dure. In recent years, it has been repeatedly held that
procedural alternatives cannot be so structured so as
to (1) penalize the assertion of rights guaranteed by
the Bill of Rights, or (2) coerce the waiver of those
72 See Title 22 of D.C. Code (1967); D.C. Code § 24-203 (1967). It
may well be that the maximum penalty for conviction in the District
Court is less than the period of detention which a youth would face if
he were convicted of the crime in the Juvenile Court. For example, the
maximum penalty for an adult convicted of an attempted robbery in
the District is a fine of $500 and/or three years imprisonment. D.C.
Code § 22-2902 (1967). A 16-year-old youth who commits the same
crime, however, may be detained until his majority if he is tried in
the Juvenile Court. Such situations are not as uncommon as might
be thought. In Gault, for example, the 15-year-old defendant was
convicted of making lewd telephone calls and was sent to a state
reformatory until such time as he reached his majority. The penalty
for similar misconduct by an adult would have been a fine of $5 to
$50 or imprisonment for not more than two months. Indeed, one of
the reasons for concern with juvenile proceedings is that commitment
can usually extend until the youth reaches the age of 21, and there
are few limitations on the power of the judge to impose such a “‘sen-
tence.” PRESIDENT’S COMMISSION ON Law ENFORCEMENT AND AD-
MINISTRATION OF JUSTICE, TASK FORCE REPORT: JUVENILE DELIN-
QUENCY AND YOUTH CRIME 5 (1967). In the instant case a 12-year-
old boy may be confined for up to nine years for stealing $112, while
his conviction as an adult (under the reasonable doubt standard) might
conceivably result in his release after less than one year.
|
LT
—
44
rights. See, e.g., Spevack v. Klein, 385 U.S. 511, 87
S. Ct. 625, 17 L. Ed. 2d 574 (1967); Garrity v. New
Jersey, supra; Griffin v. California, 380 U.S. 609, 85
S. Ct. 1229, 14 L. Ed. 2d 106 (1965); United States y,
Jackson, 262 F.Supp. 716 (D. Conn.), prob. juris. noted
387 U.S. 929, 87 S. Ct. 2050, 18 L. Ed. 2d 989 (1967).
“These two rules are merely different statements of
the following fundamental doctrine: In many cases it
is constitutionally impermissible to require an individ-
ual to choose between the assertion of a right consti-
tutionally guaranteed and the waiver of that right.
Where a reward is held out to an individual for the
waiver of a constitutional right, or a greater threat
posed for choosing to assert it, any waiver may be said
to have been extracted in an impermissible manner. If
the individual asserts his right and thereby encounters
harsher treatment than he would otherwise, such treat-
ment may be struck down as a penalty. But see, e.g.,
Nelson v. County of LosAngeles, 362 U.S. 1, 80 S. Ct.
527. 4 L. Ed. 2d 494 (1960); Gardner v. Broderick, 20
N.Y.2d 227, 282 N.Y.S.2d 487, 229 N.E.2d 184
(1967), cert. granted, 390 U.S. 918, 88 S. Ct. 848, 19
L. Ed. 2d 978 (1968) (No. 635); Laboy v. New Jersey,
266 F.Supp. 581 (D.N.J. 1967).” 280 F.Supp. at 1000-
1001.
This reasoning must apply equally where the juvenile is
not even given the choice to begin with, but has it foisted
upon him.” In short, a State may not set up two tracks
73In Nieves the court also rejected the argument that the denial of a
jury trial was “balanced” by other advantages of juvenile proceedings.
“We doubt that erosion of a defendant’s fundamental right can be
sanctioned under the rubric of a balancing test.” 280 F.Supp. at
1002.
™It is arguable that a youth charged with the commission of a
crime, who could be waived for a trial to an adult court, should him-
self have the right to elect to be waived.
[continued]
_—
of criminal procedures for juveniles accused of the same
crime with varying degrees of proof necessary to convict
and allow judges to choose between them as to individual
juveniles. Such a double standard, as it pertains to so vital
a matter as the burden of proof, violates the most tradi-
tional notions of Equal Protection as the Nieves case so
45
The question of whether a juvenile should be able to elect to be
tried as an adult goes to the very basis of the waiver statute itself.
What is the policy of the statute?
On the one hand, it is arguable that the statute is designed to
protect society. The judge is to make a determination as to whether
the juvenile should be tried as an adult because his conduct is such
that he should be treated as a criminal. Cf People v. Yeager, 359
P.2d 261, 270 (Cal. 1961). But this raises significant issues. How
can the judge decide that the juvenile should be tried as an adult
because of the crime with which he is charged, unless the judge
assumes that the juvenile is in fact guilty of committing the acts
which he is accused of committing. See Green v. United States, 308
F.2d 303, 304 (D.C. Cir. 1962). Exactly what happens at a waiver
proceeding is unclear. But it is dubious that the judge considers only
the past conduct, independent of the pending charges, in making the
waiver determination. The more likely result is that the judge
examines the past conduct of the juvenile as revealed by his record
and then considers the pending charges as well. Cf. Yeager, 359 P.2d at
270, supra.
But if this is the case, then the judge is deciding to treat the
juvenile as an adult in society's interest. But upon being waived to
the adult court, society now offers the juvenile the benefit of all the
procedural protections offered criminals. The resulting situation is
indeed paradoxical: in society’s interest, the judge has decided that
the juvenile should be treated as an adult because of his criminal
nature. Yet society also offers him greater procedural protection,
including the beyond a reasonable doubt burden of proof standard.
This raises the question of whether in operation the waiver statutes
does in fact protect the juvenile’s interest more than it operates to
protect the interest of society. If the statute does so operate, then
the juvenile should be able to elect to have that protection. It would
appear to frustrate the statute if its operation were otherwise.
46
well perceived. If, on the other hand, basic due process
rights are accorded juveniles in both systems, the State very
well may provide for one form of disposition in the adult
penal system for one juvenile defendant (based on his past
record, potential for rehabilitation, etc.) and retain another
in the more lenient juvenile rehabilitation system, even
though they have been convicted of the same crime.”5
Il.
ADOPTION OF THE REASONABLE DOUBT STANDARD
IS ESSENTIAL FOR THE PROTECTION OF A YOUTH'S
PRIVILEGE AGAINST SELF-INCRIMINA TION
It seems clear that the preponderance test collides with
a youth’s Fifth Amendment right to remain silent in delin-
quency proceedings—a right extended to juveniles by Gault.
The privilege against self-incrimination, in fundamental re-
spects, emphasizes “... the principle that persons accused
of a crime cannot be made to convict themselves out of
their own mouths.” Culombe v. Connecticut, 367 U.S. 568,
571 (1961).”© That the right to remain silent is of substan-
tial importance to the youth accused of a crime cannot be
doubted. Indeed there are obvious reasons why this right
is even more critical to the juvenile than to the adult, who,
by virtue of his immaturity and insecurity is more likely to
be confused and overwhelmed by ‘he prospect of giving
See Kent v. United States, 383 U.S. 541 (1966).
See also Griffin v. California, 380 U.S. 609 (1965); Malloy v.
Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Comm'n, 378 U.S.
$2, 55 (1964); The Fifth Amendment reflects “an unwillingness to
subject those suspected of crime to the cruel trilemma of self-accusa-
tion, perjury or contempt”; 8 Wigmore, Evidence § 317 (McNaughton
1961): The Fifth Amendment embodies the concept of a “fair state-
individual balance by requiring the government to leave the individual
alone until good cause is shown for disturbing him and by requiring
the government in its contest with the individual to shoulder the en-
tire load.”
ons ee
—_
47
testimony in court than would a hardened criminal. As
this Court remarked in Wilson vy. United States:
It is not every one who can safely venture on the wit-
ness stand though entirely innocent of the charge
against him. Excessive timidity, nervousness when fac-
ing others and attempting to explain transactions of a
suspicious character, and offenses charged against him,
will often confuse and embarrass him to such a degree
as to increase rather than remove prejudice against him.
It is not every one, however honest, who would, there-
fore, willingly be placed on the witness stand. 149
U.S. 60, 60 (1893)
The preponderance test is commonly understood to de-
note simply a relative superiority of evidence in favor of
the party on whom rests the burden of proof, and on this
basis it is generally held that evidence predominates when
it is of “greater weight” or ‘“‘more convincing” than that
offered in opposition.”” This standard of proof therefore
See, e.g., Noel v. United Aircraft Corp., 219 F.Supp. 556 (D.
Del. 1963) (“greater weight or more convincing”); United States v.
Kansas Gas & Elec. Co., 215 F.Supp. 532, 543 (D. Kan. 1963) (“evi-
dence when considered and compared with that opposed to it which
has more convincing force and produces . . . a belief that such evi-
dence is more likely true than not true.”); Universe Tankships, Inc.
v. Pyrate Tank Cleaners, Inc., 152 F.Supp. 903 (S.D.N.Y. 1957)
(“more likely than not” or “more probable than not’’); Christensen v.
lowa State Highway Comm’n, 110 N.W.2d 573 (lowa 1961) (“stronger
impression,” “more convincing”). See also Delaware Coach Co. v.
Savage, 81 F.Supp. 293 (D. Del. 1948) (“greater weight”); Smith v.
Magnet Cove Barium Corp., 206 S.W.2d 442 (Ark. 1947) (“‘overbal-
ancing in weight”); Teutrine v. Prudential Ins. Co. of America, 72
N.E.2d 444 (IIl.Ct.App. 1947) (Preponderance exists when the weight
of the evidence “inclines” in favor of the party having the burden of
persuasion); Edwards v. Mazor Masterpieces, Inc., 295 F.2d 547 (D.C.
Cir. 1961) (“reasonable probability”).
48
contemplates the introduction of evidence by both parties
in a case.”8
Although it seems to be recognized that the preponder-
ance test, as applied to the civil defendant, does not require
the introduction of any evidence on his behalf in order to
succeed on the merits,”? it nevertheless seems clear that this
light standard of proof loses its viability without the balanc-
ing concept.
Indeed, many cases recognize that although the number
of witnesses presented is not determinative of the sufficiency
The model instruction employed in the District of Columbia offers
a typical illustration of the weighing concept imposed in the prepon-
derance test:
“Preponderance of the evidence means such evidence as,
when weighed against that opposed to it has the more convinc-
ing force . . . to establish by a preponderance of the evidence is
to move that something is more likely so than not so. In other
words, a preponderance of the evidence means such evidence
as, when considered and compared with that opposed to it, has
the more convincing force and produces in your minds belief
that what is sought to be proved is more likely true than not
true.
“If, however, you believe that the evidence on an issue is
evenly balanced, then your finding on that issue must be against
the party upon whom the burden of proof on that issue rested.”
(Standardized Jury Instructions for the District of Columbia,
at 19.) (Rev. ed., published by D.C. Bar Association).
79See McCormick, Evidence § 319 (1954); Morgan, Presumptions
and Burden of Proof, 47 Harv. L. Rev. 59, 66 (1933). The instances
in which a plaintiff introduces evidence sufficient to go to the jury
and the defendant offers no evidence are virtually non-existent. Con-
sequently, there appear to be no cases in which this situation has been
judicially analyzed, with the possible exception of White v. Village of
Soda Springs, 266 P. 795 (Idaho 1928). And in that case the court,
in affirming a judgmen* for the defendant, construed the defendant’s
failure to introduce ev:dence as a demurrer—hardly a desirable posture
for the juvenile who wishes to remain silent, since it requires that the
evidence be viewed in the light most favorable to the plaintiff.
—
49
of the evidence, all other things being equal, (that is, given
equally credible witnesses and equally plausible versions of-
fered on either side of a disputed question) the greater
number of witnesses should generally prevail over the lesser
number.®® And while it is generally understood that when
the evidence is evenly balanced there is no preponerance,*!
this would also suggest that where one party offers some
clear evidence and the opposing party presents none, the
latter has a good chance of losing. In the case of a youth
charged with a crime, the very risk of such a loss has a
“chilling” effect on the exercise of a Fifth Amendment
right.82 The loss would not be merely financial, as in the
case of a civil defendant—though a loss of or inability to
secure employment may well result®’—but also personal in
terms of the deprivation of the youth’s liberty.™
As we have noted in an earlier part of this brief with
regard to a youth’s right to the application of the reason-
able doubt standard, forcing an accused delinquent to sacri-
fice the beneficial procedures of juvenile proceedings in
order to obtain the higher standard is impermissible since
the state may not impose conditions on the grant of con-
stitutional right. Similarly, by choosing to assert his con-
stitutional right to remain silent, the juvenile who may be
80See, e.g., Micheli v. Toye Bros. Yellow Cab Co., 174 So.2d 168
(La.Ct.App. 1965); Caron v. Franke, 121 F.Supp. 958 (W.D.N.Y.
1954). See also Williams v. Colonial Pipeline Co., 139 S.E.2d 308
(Ga. 1964).
®!See, e.g., Zurich Ins. Co. v. Oglesby, 217 F.Supp. 180 (W.D. Va.
1963); Georgia Power Co. v. Smith, 94 S.E.2d 48 (Ga. Ct. App. 1956);
Greenberg v. Alter Co., 124 N.W.2d 438 (Iowa 1963).
CF Garrity v. New Jersey, 385 U.S. 493 (1967); Spevack v. Klein,
385 U.S. 511 (1967); Gardner v. Broderick, 392 U.S. 273 (1968);
Sanitation Men v. Sanitation Comm’r, 392 U.S. 280 (1968).
See text accompanying notes 49-54 supra.
*The reasons for using-the preponderance standard in civil cases
are set out in State v. Santana, 444 S.W.2d 614, 626 (Tex. 1969)
(dissent).
—
50
proven guilty by evidence which demonstrates that it is
“more likely” than not that he committed the offense,
faces emasculation of that right. Courts have repeatedly
said that this kind of Hobson’s choice is impermissible.
For example, in Nieves v. United States,*5 280 F.Supp. 994
(S.D.N.Y. 1968), a three-judge district court dealt with a
case involving a juvenile defendant who was given a choice,
under the Federal Juvenile Delinquency Act, 18 U.S.C. §
5033 (1964), between being tried as an adult with a jury
trial and being tried as a juvenile without a jury. The court
held that the youth had a constitutional right to a jury trial
and that it was not constitutionally permissible to present
him with an option to waive it in favor of juvenile proceed-
ings. The court asserted that:
*“*... procedural alternatives cannot be so structured so
as to (1) penalize the assertion of rights guaranteed by
the Bill of Rights, or (2) coerce the waiver of those
rights.
“Where a reward is held out to an individual for the
waiver of a constitutional right, or a greater threat
posed by choosing to assert it, any waiver may be said
to have been extracted in an impermissible manner.”
280 F.Supp. at 1000-1001.
In practical terms, there are probably few boys accused
of a crime who, in an unwitnessed occurrence or where
there are no persons available to confirm their alibi, would
not feel pressured to take the stand to rebutt the evidence
offered by the government. For the government’s position
may be far from convincing when it need only demonstrate
that it is “more probable” than not that the youth com-
mitted the crime.*® When a boy’s liberty is at sake, he is,
SCF United States v. Jackson, 390 U.S. 570 (1968).
86
“What those who have laid down the principle that ‘prepon-
derance’ of evidence will justify and require a decision con-
firmable with it, have failed to realize, is that perception of the
(continued)
eee |
51
therefore, compelled to forgo a constitutional right in the
hope that he will not be convicted on a meager amount of
evidence which may subject him to a prolonged period of
institutional atrocity and subsequent societal ostracism.
ADOPTION OF THE REASONABLE DOUBT STAND-
ARD WILL AID THE JUVENILE COURT SYSTEM IN
ACHIEVING ITS LAUDATORY GOALS BY CONCEN-
TRATING THE APPLICATION OF ITS RESOURCES ON
YOUTHS WHO MOST NEED REHABILITATION.
Even if it is correct that juvenile detention provides effec-
tive rehabilitation, and even if it is true that the status of
being, adjudicated a delinquent does not tarnish the image
of a youth, there is no basis for asserting that affording
procedural safeguards to a youth will prevent a juvenile
court from achieving its benevolent goals. Indeed, in specifi-
cally dealing with the dispositional stage of juvenile proceed-
ings “by which a determination is made as to whether a ju-
venile is a ‘delinquent’ as a result of alleged misconduct on
his part, with the consequence that he may be committed
to a state institutuion,” 387 U.S. at 13, this Court noted
in Gault:
“Unless appropriate due process of law is followed,
even the juvenile who has violated the law may not
preponderance of evidence is quite consistent with want of
belief. Of two pieces of very weak evidence, one may prepon-
derate. It might be barely enough to convince, had it not en-
countered the contradictory evidence. Opposed by the latter,
it may be sufficient to generate even the lowest degree of belief.
To detect a preponderance of evidence . . . is neither to believe
... nor to be logically required to believe. ... It would be
fatuous to affirm that a man ought to believe, even faintly, every-
thing the evidence for which is, in his opinion, stronger than the
evidence against it.” Trickett, Preponderance of Evidence and
Reasonable Doubt (The Forum, Dickinson School of Law, X,
76, 1906), cited in 9 Wigmore, Evidence § 2498 (Supp. 1964).
LO RR TI II
—
52
feel that he is being fairly treated and may therefore
resist the rehabilitative efforts of Court personnel.” Jd
at 26.
This Court repeatedly emphasized in Gault that by ex-
tending certain rights to juveniles at the dispositional stage
of a delinquency hearing it was in no way interfering with
the “commendable principles relating to the processing and
treatment of juveniles separately from adults.” Jd. at 22.
The Court appropriately noted that the incentive for twen-
tienth-century reform in legislation relating to juvenile
offenders had come from men who were terribly disturbed
by the adverse effects which fell upon young people who
were confined to state prisons along with hardened adult
criminals.*7 Guaranteeing certain safeguards to the juvenile
during the hearing state of the court process would in no
way prevent the effective rehabilitation of the youth sub-
sequent to any determination of his involvement in the of-
fense. The discretion afforded juvenile court in prescribing
treatment for juveniles is left unaffected by a grant of con-
stitutional protections. As the dissent noted in Santana,
supra:
“Santana is located at the same stage as was Gault,
at the adjudicatory stage, with a felony charged, which
resulted in the loss of liberty by commitment to an in-
stitution. We are not, therefore, concerned with any
limitations upon care, counseling, treatment, rehabilita-
tion, or other beneficences which he might have received
and during some period of the [intake or disposition]
stages. Our concern is not with juvenile philosophy
generally. Our concern is whether Santana has, in fact,
been judicially found to be a delinquent according to
due process. He declares he is innocent of the charge
of delinquency; and upon principles of justice, fairness,
and equal treatment that others receive when charged
87See Parker, Some Historical Observations on the Juvenile Court,
9 Crim. L.Q. 467, 476 (1967). Despite the objectives of these reforms
the effectiveness of rehabilitation in juvenile institutions has been
seriously questioned. See note 13 supra and accompanying text.
53
with rape, that he neither needs nor deserves the States’
benevolence.
To hold that an act of the Legislature settles this case
because it says that juvenile misconduct is a civil or a
non-criminal proceeding is too easy an answer. Gault
faced this issue squarely, and held that labels one way
or the other were inconclusive. It did not jettison the
juvenile philosophy of treatment and rehabilitation. It
recognized that there is room for the benefits of juve-
nile procedures which classify as non-criminal a juvenile
who is adjudged delinquent. The court expressly em-
phasized that a delinquency adjudication did not operate
as a civil disability or disqualify him for civil service
appointment. Following those statements, the court
said, ‘There is no reason why the application of due
process requirements should interfere with such provi-
sions.” (Emphasis added). 444 S.W. 2d at 624.%8
We have suggested that the adoption of the criminal stand-
ard of proof in juvenile delinquency determinations will in no
way denigrate the usefulness of the post-adjudicatory reha-
bilitative process. Perhaps more importantly, it should be
emphasized that the continued application of the prepon-
derance standard has a detrimental effect on the quality of
treatment which may be given to those convicted juveniles
who really need it. We offer the District of Columbia as an
example.
The District of Columbia Juvenile Court is suffering from
an unprecedented increase in referrals.®° It takes close to a
88One justification often given for the application of the lower
standard in juvenile proceedings is that the confinement of convicted
delinquents is rehabilitative in nature, while incarceration of adult
criminals is not. While rehabilitation is not given the priority it al-
legedly has in juvenile court, it nevertheless remains as one significant
purpose and goal of the law for all convicted offenders. See Michael
& Weschler, Criminal Law and Its Administration 11, 17 (1940). See
also note 11, supra.
896875 juvenile cases in fiscal 1969. See Annual Report of the
Juvenile Court, at 21 (1969) (hereafter referred to as “Annual
Report.”)
54
year to bring a juvenile to trial, and in cases of jury trials,
substantially longer. A higher standard of proof in criminal
cases would affect this by increasing the number of dismis-
sals, decreasing the number of cases originally pending, and
increasing the number of pleas to reduced charges.
With the exception of intake screening, the Juvenile
Court’s Social Services—preparing disposition recommenda-
tions and providing supervision for probationers—come into
play only after adjudication.” At the end of fiscal 1969,
the Court’s social staff of 31 persons was supervising 1442
children on probation, and preparing an additional 321 social
studies for children adjudicated but not yet disposed of.
The average case load per worker was 57.7!
Referring to the rehabilitative resources available to con-
victed juveniles who have been committed to custody, the
District of Columbia Juvenile Court’s 1969 Report noted:
“[O]ne of the most urgent problems confronting the Court
is the limited dispositional resources available to it.”°? For
example, the Juvenile Court provides totally inadequate re-
sources for drug-addicted juveniles and for emotionally dis-
turbed children; it has only one Youth Probation House
capable of housing 15 probationers without a suitable home;
and those youths committed to the Department of Public
Welfare Children’s Center find outdated programs and an
undermanned staff.?°
9° Annual Report at 7. In the Annual Report the court empha-
sized the need for more judges, due to a “severe backlog of cases and
a serious delay in processing them.” /d. at 17. It also cited the need
for more probation workers, pointing out that the present case loads
are “too high—almost double the standard case load recommended by
national standard-setting agencies—to allow the necessary time to make
probation a meaningful experience for the juvenile.” Jd. at 18.
917d. at 8.
927d. at 19.
937d. at 19-20.
ee ene
__——_——ee
The recidivism rates of juveniles also pointed out the in-
effectiveness of the rehabilitative treatment they receive. In
1966 the President’s Crime Commission Report on the Dis-
trict of Columbia showed a 42 percent recidivism rate with-
in six months after institutional release.** The court’s most
recent figures show that 33 percent of juvenile law offenders
referred to court have already been adjudicated on a previ-
ous occasion.?> Of the 1327 juvenile repeaters, 575 were
currently on probation (43 percent), 289 under the super-
vision of the Department of Public Welfare following insti-
tutionalization (22 percent), and 261 (20 percent) awaiting
action of the court on a prior referral.*°
RR LE IEE LE LEI LLEO ITE 2
These statistics merely illustrate one jurisdiction’s difficul-
ties. They indicate that juveniles are receiving inadequate
treatment as a result of meagre resources available to the
courts and the community. These same resources can pro-
vide the necessary processing and rehabilitation only if the
number of juveniles which must be accommodated to the
system is small. It would be a far better use of these re-
sources to limit them to youths who clearly—and by the
same due process standards as adults—need them.
Report of the President’s Commission on Crime in the District
of Columbia 709 (1966).
*S Annual Report at 28.
91d. at 41.
56
CONCLUSION
For the foregoing reasons, this Court should reverse the
judgment of the New York Court of Appeals, and hold that
a youth convicted of a criminal offense is denied his Con-
stitutional rights unless he is proved guilty beyond a reason-
able doubt.
Respectfully submitted,
MARIE S. KLOOZ,
WOODLEY B. OSBORNE,
PATRICIA M. WALD,
Attorneys,
Neighborhood Legal Services
Program,
416 Sth Street, N.W.
Washington, D.C. 20001
NORMAN LEFSTEIN,
Deputy Director,
LAWRENCE H. SCHWARTZ,
Attorney,
Legal Aid Agency
316 6th Street, N.W.
Washington, D.C. 20001
Of Counsel:
JAMES H. COHEN
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.