# Amicus Curiae Brief — In Re WINSHIP (No. 778) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0168%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 ## Text 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 +~—~— 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). ’ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0168%3A03. Public record. Not legal advice.