Amicus Curiae Brief — In re Burrus
Supreme Court brief1970
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TABLE OF CONTENTS
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INTRODUCTORY STATEMENT .......---++--++ee55: 1
THE INTEREST OF THE AMICUS AND ITS POSITION
ON THE QUESTIONS PRESENTED .........---+-+5: 2
A. Interest of the Amicus... 0... 0.0 eee eee 2
B. The Council's Position on the Issues... --..--++-- 3
SUMMARY OF ARGUMENT ...........-0- 0s eee eeeee 4
QUESTIONS PRESENTED ...........--- 2 se eeeeeeee 9
A eee hak Oe tik Gad GNWwe 4.4) 60.0 6.0.6 merece 10
I. Due Process Does Not Require the Right of a Jury
Pe Sch enue NAR Ran eee ssercsecers 10
A. Fundamental Fairness Is the Applicable Standard .... 10
B. Due Process Does Not Require a Jury Trial for
a Juvenile Charged with Delinquency ........... 19
C. Imposition of a Jury Trial Requirement Would
Carry Adverse Practical Consequences for the
Efficient Operation of the Juvenile Court System .... 30
Il. Equal Protection of the Laws Is Not Offended By
Denying a Jury Trial to a Juvenile ............... 36
Te aan cak he ahs Bab on Ws 66 0 6004 6 00 00 38
TABLE OF CITATIONS
Cases:
Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965) ... 16
Baldwin v. New York, 38 U.S. Law Week 4554, June 22,
TT Pace h ae AWS ie WS Re 6A Ale cid: b 64% 0 90-47 0 6 00 19
Bloom vy. Illinois, 391 U.S. 194, 195, 213 (1968) ... 10, 11, 19, 34
Cinque v. Boyd, 99 Conn. 70, 121 A. 678 (1923) ......... 22
Comm. v. Johnson, 211 Pa. Super 62, 237 A.2d 9, 15-16
ae ee ae ete edt Bink bo oa 14, 24
Comm. v. Page, 339 Mass. 313, 316, 159 N.E.2d 82, 85
Lees es eee 2S OO. 8 OS 6.82.8 6 Soe 6.8 6 2.8 58 4 6 OD 6
ee a ee
(ii)
DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508,
513 (1968), app. dis. on other grounds, 396 US.
PE his hohe OR Rak ck eke
Dryden v. Comm., 4 Cr.L.Rep. 2253 (Ky. Ct. App., 1968) ...
Duncan v. Louisiana, 391 U.S. 145 (1968) .............
Estes v. Hopp, 73 Wash. 2d 272, 438 P.2d 205 (1968) ..
Ginsberg v. New York, 390 U.S. 629, 638 (1968) ...... ;
In Re Daedler, 194 Cal. 320, 228 P. 467 (1924) ...........
In Re Fletcher, 251 Md. 520, 248 A.2d 364 (1968) .......
Ge ey ee MID ec icc cs caccccnny
In Re Perham, 104 N.H. 276, 184 A.2d 449 (1962) .........
In Re State in Interest of Carlo, 48 NJ. 224, 225 A.2d
ta SPI SSAA Sao a ea eel
In Re Watson, 157 N.C. 340, 72 S.E. 1049 (1911) .........
In Re Whittington, 391 U.S. 341 (1968) ...............
In Re Winship, 397 U.S. 358 (1970) ..................
Kent v. United States, 383 U.S. 541, 562 (1966) .........
Leland v. Oregon, 343 U.S. 790, 798 (1952) .............
Marsden v. Comm., 352 Mass. 564, 227 N.E.2d 1,2(1967) ..
May v. Anderson, 345 U.S. 528 (1953) .................
James McKiever and Edward Terry v. Commonwealth of
Pennsylvania, No. 322, October 1970 Term ............
Nieves v, United States, 280 F. Supp. 994, 1000 (S.D.
ee NEA SEG cs VE AG Ae aS soe we ska bic en
Peyton v, Nord, 78 N.M. 717, 437 P.2d 716 (1968) .
Prince v. Massachusetts, 321 U.S. 158, 170 ines ke awa
Singer v. United States, 380 U.S. 24, 31 (1965) ...........
State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920) .......
Constitutional Provisions and Statutes:
Ala. Code, Tit. 13, Sec. 369 (1969)
Alaska Stat. 47.10.070 (1968 Supp.)
etary ——
(iii)
Ariz. Rev. Stat. Ann., Sec. 8-229 (1956)... -- +++ +--+ 0e 22
Ark. Stat. Ann., Sec. 45-206 (1964 Repl.) ....-----+++++- 22
Colo. Rev. Stat. Ann. 22-8(1) 2.2... ee eee eee ee eee 22
Del. Code Ann., Tit. 10, Sec. 1175 (1966 Supp.) ...------ 22
16 D.C. Code 2307 (1967) ©... 6. eee ee eee eee nes 23, 24
Fla. Stat. Ann. 39.09(2) (1961)... eee eee ee eee es 22
Ga. Code Ann., Sec. 24-2420 (1959) ... 2... - eee ee eee ees 22
Hawaii Rev. Stat., Sec. S7I-41 .. 2... 6 eee ee eee eee ees 22
Gen. Laws Idaho Ann., Sec. 16-1813 ....-..-- 0s eee eee 22
Ind. Ann. Stat., Sec. 9-3215 (1967 Burns’ Supp.) ....-.--- 22
lowa Code Ann. 232.27 (1969 Supp.) ......------seee- 2
Kan. Stat. Ann. 38-808 (1968 Supp.) ........---- 2 esses 22
Ky. Rev. Stat., Sec. 208.060 (errs er 22
La. Rev. Stat. Ann., Sec. 13:1579 (1968) .........--+-+- 22
Me. Rev. Stat. Ann., Sec. 15-2610... 2... ee eee eee eee 23
McKinney’s Consol. Laws N.Y., Family Court Act 164,
165 and Civ. Prac. Law and Rules 4101 .........----+> 22
Mich. Stat. Ann., Sec. 27.3178 (598.17) 6... ee eee eee ees 23
Minnesota Juvenile Court Rules, Minn. Stat. Ann. Supp.
1969, foll. Chap. 260 (1969) ....... 2... eee eee eee eens 24
Minn. Stat. Ann., Sec. 260.155(1) (1967 Supp.) ........... 22
Miss. Code Ann., Sec. 7185-08 (1942)... - eee ee ee eee 22
Rev. Codes Mont., Sec. 10-603 (1947) ..........0000 05> 23
Rev. Stat. of Neb., Sec. 43-206.03(2) (1943) .........555- 22
Rev. Stat. of Nev. (1963), Sec. 62.190(3) ........-2e ees 22
N.J. Stat. Ann. 2A:4-35 (19GS) wc cece cee wc cenaces 22
N.D. Century Code, Sec. 27-16-18 (1967 Supp.) ........--- 22
Okla. Stat. Ann., Tit. 10, Sec. L110 2... 1. eee eee ee eee 23
Page’s Ohio Rev. Code Ann., Sec. 2151.35 (1968 Repl.) ... 22
Ore. Rev. Stat., Sec. 419.498(1) (1967 Supp.) .........-. 22
Purdon’s Pa. Stat. Ann., Tit. 11, Sec. 247 (1954) ......... 22
et OO
(iv)
Gen. Laws R.I., Sec. 14-1-30 (1967 Supp.) .. .......-...--
Code S.C. Laws, Sec. 15.1095.19 (1968 Supp.) ...........
CUP: wwwievite nce eee ve vbeoswes
Standard Juvenile Court Act, Section 19 (6th Ed. 1959) ..
Tam: Cote Ram. Bae. FROGS «0 wi ccc et eeece
Uniform Juvenile Court Act, Section 24{a) (Natl. Conf.
Comm. on Uniform State Laws, 1968) ...............
United States Constitution:
ee Dk ah Saba he oF 4 6 OS 0d Cb a ewes
aire aa nic BAW hs btw e's 0 'o es chia a i passim
a EE er ee ee passim
Utah Code Ann., Sec. 55-10-94 (1967 Supp.) .............
Vernon’s Ann. Mo. Stat., Sec. 211.171(6) .............---
Vernon’s Ann. Rev. Tex. Stat., Art. 2338-1, Sec. 13(b) ...
Code Va. Ann., Sec. 16-1-162 (1950)... ......00. eee eee
Vt. Stat. Ann., Tit. 33, Sec. 651(a) (1968 Supp.) .........
Rev. Code Wash. Ann., Sec. 13.04.030 ............-545.5
SS ee eee eee
Wis. Stat. Ann., Sec. 48.25(2) (1957)... 2.2... eee ee eee
Wyo. Stat. Ann., Sec. 14-108(c) (1961) ........ 0.00 e aes
Miscellaneous:
Allen, The Borderland of Criminal Justice 48 (1964) .......
Annual Report of the Juvenile Court of the District of
Columbia, Fiscal Year 1968, p.9 .. 1.2... ee eee ee eee
Antieau, Constitutional Rights in Juvenile Courts, 46 Cor-
nell L.Q. 387, 400-01 (1961) .. 1... cc cee eee ween 24
Ardrey, The Territorial Imperative 20-21 (1966) .........-. 18
1 The Center Magazine 7, November 1968 ...........----- 28
Crime in the National Capital, Hearings on S. 2981 Before
the Committee on the District of Columbia, United States
Senate, 91st Cong., Ist Sess. (1969), pp. 1835, 1866 .. 17, 22,
25, 31, 34
Sere,
(v)
District of Columbia Crime Bill, P.L. No. 91-358, 91st
Cong., 2d Sess., approved July 29,1970 .......--.. 24, 25, 31
Dorsen and Rezneck, Jn Re Gault and the Future of
Juvenile Law, 1 Family L.Q. 1, 3, 22, 23 (1967) .. 16, 24, 28, 29
Frank, Courts on Trial 132 (1949) 2... 2. ee ee eee eee 28
Handler, The Juvenile Court and the Adversary System:
Problems of Function and Form, 1965 Wis. L. Rev. 7,
SO FD vin vas vhs bo wos Rhine ag RES SAD EEA sO 09:09 35
Kalven and Zeisel, The American Jury 9, 56 (1966)........ 28, 29
Lorenz, On Aggression 47 (1969) ........--.00 eee eeeee 18
Morris, The Naked Ape 126-28 (1967) ........------065 18
Note, Criminal Offenders in the Juvenile Court: More _
Brickbats and Another Proposal, 144 UPa. L.Rev. 1171
Loa. > SANA eee evevaeS eee eye eo ee 24, 29
Note, Gault in Indiana, 43 Ind. LJ. 661, 667 (1968) ... 13
Note, Juvenile Delinquents: The Police, State Courts, and
Individualized Justice, 79 Harv. L. Rev. 775, 793-94
on ar rey rey yee ey) er ee ere 25
Note, Rights and Rehabilitation in the Juvenile Courts,
67 Colum. L. Rev. 281, 284 (1967) «we ee ee ees 35
Paulsen, The Constitutional Domestication of the Juvenile
Court, The Supreme Court Review 233 (1967) .. ee _ 13
Paulsen, Fairness to the Juvenile Offender, 41 Minn. Law
POU BAT, THOU OTE os OK vc wh eee ce cee esau casacs 16
Paulsen, Kent v. United States: The Constitutional Context
of Juvenile Cases, The Supreme Court Review 167,
186, 192 (1966) ... svete eee teeta eee eee e tenes 16, 35
Pound, Interpretations of Legal History 135 (1923) ......... 27
Rosenheim, Standards for Juvenile and Family Courts: Old
Wine in a New Bottle, 1 Family L.Q. 25, 28 (1967) ..... 13, 16, 27
Rubin, Crime and Juvenile Delinquency 66 (1958) ......... 35
Senate Report No. 91-620, 91st Cong., Ist Sess., Dec. 18,
19GD, PP. 1, G6, 1S wr cnc cc nsecsercesecegeneses 27, 30
Sheridan, Standards for Juvenile and Family Courts 73
(vi)
Statement of the Managers on the Part of the Senate
Regarding Conference Action on S. 2601, Committee
Print, 91st Cong., 2d Sess., July 15,1970, p.19 ......
Storr, Human Aggression 44 (1968) ................
Tappan, Juvenile Delinquency 146, 211-12 (1949) ......
Task Force Report on Juvenile Delinquency and Youth
Crime of the President’s Commission on Law Enforce-
ment and the Administration of Justice, p.38 ........
Washington Post, July 30, 1970, p. A-l ........-.----
Wheeler and Cottrell, juvenile Delinquency: Its Prevention
and Control 33 (Russell Sage Foundation 1966) ......
Young, The Constitution and the Juvenile Court—Letter
or Spirit, 44 Jour. of the Am. Jud. Soc. 94, 97 (1960) ..
nT gO —" a
IN THE :
Supreme Court of the United States
OCTOBER TERM, 1970 ;
No. 128
In Re BARBARA BURRUS, ET AL.,
Petitioners,
ON WRIT OF CERTIORARI TO THE SUPREME
COURT OF NORTH CAROLINA
BRIEF OF THE NATIONAL COUNCIL OF JUVENILE COURT
JUDGES AS AMICUS CURIAE IN SUPPORT
OF RESPONDENT
INTRODUCTORY STATEMENT
The facts of this cause, which involves the consolidated
cases of forty-four (44) juvenile petitioners, the pertinent
constitutional provisions, the applicable provisions of the
North Carolina statutes, the questions presented, the opinion
of the North Carolina Supreme Court and those of the North
Carolina Court of Appeals are set out in the brief and appen-
dix filed by the petitioners.' The amicus accepts them for
'The opinion of the Supreme Court of North Carolina in this case
is officially reported at 275 N.C. 157, 169 S.E.2d 879 (1969). The
_ opinions of the North Carolina Court of Appeals are officially reported
at 4 N.C. Apps. 523, 167 S.E.2d (1969) and 5 N.C. Apps. 487, 168
S.E.2d 695 (1969).
——
2
purposes of its own brief. Counsel for both parties have
given their written consents to the filing of this amicus curiae
brief in behalf of the National Council of Juvenile Court
Judges.?_ In addition, the State of North Carolina, respond-
ent herein, has agreed to yield 10 minutes of its time for
oral argument to this amicus.
THE INTEREST OF THE AMICUS AND ITS
POSITION ON THE QUESTIONS PRESENTED
A. Interest of the Amicus. The National Council of
Juvenile Court Judges is an unincorporated association.
More than 1,000 of its members are judges of the various
States and the District of Columbia, vested with jurisdiction
to determine juvenile cases. The judge members of the
Council handle approximately 90% of the juvenile cases
which are filed each year in the courts of the Nation.
It has always been the Council’s belief that juvenile courts
are courts of law and not social agencies. From its inception,
the Council has adhered to the view that both legislation
and judicial decisions in the field should be constantly
studied to the end that due process of law and essential
fairness to the troubled children who come before the
juvenile court not be denied. because of informalities of
procedure that might lead to arbitrariness. Nevertheless,
from ancient times children necessarily have been subject
to prohibitions in the law which are not imposed upon
adults. And juvenile courts, from their beginnings, have
dealt almost daily with some of the practical legal problems
and complexities arising from the special place that the law
assigns children.
In pursuing its objectives, it has been the practice of the
Council to provide legislatures and courts of last resort with
the results of its collective knowledge and experience in the
hope of illuminating problems that are not always fully
2Hereinafter usually referred to as the “Council”.
i ene NE ae
_—
3
appreciated by many attorneys who rarely practice in the
juvenile court, and who, when they do come into that court,
are not always equipped by experience and training to dis-
tinguish between the principal focus of the criminal law—
deterrence and retribution—and the principal focus of the
juvenile court--reformation of a child, rather than his
punishment.
B. The Council’s Position on the Issues. This case, for
the third time in recent years, provides an occasion for the
Court to decide whether the Sixth Amendment, as applied
to the States through the Fourteenth Amendment, requires
that a juvenile be provided with an opportunity for a trial
by jury before he can be adjudged a delinquent where the
penalty to which he might be exposed would require a
criminal trial should an adult have been so charged.?
The Council’s basic interest in this case is that a long
tested and enlightened system for the administration of
justice for juveniles—a system which adheres to standards
of fundamental fairness—not be jeopardized by a rigid insist-
ence that the best interests, including adequate protection
of their constitutional rights, of children not charged with
crimes, can be realized only by treating them as if they were
adults and so charged. The position which the Council takes
in this case is identical to the position it asserts with respect
to the companion case of James McKiever and Edward Terry
v. Commonwealth of Pennsylvania, No. 322, which has been
consolidated for argument with this case.4 While the broad
interests of the Council fortuitously may be allied with the
3The Council participated as amicus curiae in two earlier cases that
brought this same question to the Court. Jn Re Whittington, 391 U.S.
341 (1968), and DeBacker v. Brainard, 396 U.S. 28 (1969). The
Council filed briefs and argued orally in both cases.
“The Council has not filed a separate amicus curiae brief in
McKiever but wishes to make clear that it supports the appellee in
that case in urging that the decision of the Pennsylvania Supreme Court
should be affirmed, for the same reasons that it supports affirmance
of the ruling of the North Carolina Supreme Court in this case.
4
more specific concerns of the respondent here and the
appellee in McKiever, the Council takes no position on the
more narrow question of the correctness of the adjudica-
tions of delinquency involved in the two cases. Rather, the
Council appears in this Court solely in an attempt to present
the collective knowledge and experience of its members on
issues of undeniable importance to the future operation and
development of juvenile court justice in the United States.
It is the Council’s basic position that the twin goals of
affording due process in juvenile court proceedings and at
the same time preserving the reformative and rehabilitative
goals of modern juvenile court systems can be achieved ‘est
by not requiring a jury trial in juvenile court proceedings,
SUMMARY OF ARGUMENT
I
A. The decisions of this Court on which petitioners rely
in arguing that there is a constitutional right of a jury trial
in the juvenile court were all cases in which the decision of
the Court was arrived at through the selective absorption of
certain rights guaranteed by the Bill of Rights. In each, the
Court found that the denial of the particular right would be
a departure from “fundamental fairness”. That is the same
analysis which the Court should follow in deciding whether
the Sixth Amendment, as applied against the states through
the Fourteenth Amendment, requires a jury trial in adjudi-
catory hearings conducted by the juvenile courts of the
various states.
On the other hand, the petitioners’ argument that the
Fourteenth Amendment requires a jury trial in a juvenile
court adjudication proceeds from the simplistic view that
the recent decisions of this Court holding that juvenile
adjudications are subject to the standards of the Due Process
Clause and that due process guarantees a jury trial in state
criminal proceedings and, therefore requires that the right
5
to a jury trial must apply to juvenile adjudications. It is
amicus’s position that this Court in pursuing the constitu-
tional domestication of juvenile court adjudications has not
proceeded with a broad brush approach of the type suggested
by the petitioners. Rather, in each case, the Court has made
a searching evaluation of those procedural safeguards applied
in criminal proceedings that are at the very heart of assuring
fundamental fairness in adjudications carrying the threat of
serious loss of liberty, viewed in light of the effect of the
imposition of those safeguards upon the recognized advan-
tages of the distinctive methods of adjudication long fol-
lowed in the juvenile courts. We have no quarrel with the
previous decisions of this Court, which, to be sure, have
enunciated standards requiring substantial changes in juve-
nile court procedures, but not changes which have imposed
critical inhibitions upon the goal of expeditious and flexible
adjudications which would be the case if the jury trial is
made a constitutional prerequisite in an adjudication of
juvenile delinquency.
In the landmark case of Jn Re Gault, 381 U.S. 1 (1967),
there was no indication that this Court intended to fasten
on juvenile court proceedings all the procedural standards
required by the Fourteenth Amondment in criminal pro-
ceedings. Actually, the constitutional rights which Gault ar-
ticulated as requirements in the juvenile court were rights
which are nearly co-terminus with the minimum standards of
fair procedure required for proceedings in most civil cases.
The Gault decision and the other decisions of this Court
upon which petitioners rely, therefore, do not establish that
there is an automatic congruence between the procedural re-
quirements imposed by due process in a criminal case and
those imposed by due process in juvenile cases.
There is a basic supporting justification for distinguishing
between criminal proceedings and those of the juvenile
court. That distinction lies in the fact of a child’s immatu-
rity, a condition which is not usually presumed of adults.
That condition of immaturity has been impliedly recognized
by this Court in sanctioning legislative restriction of a child’s
oan
6
free exercise of religion rights and his right of free speech,
when necessary for his protection. Do a child’s due process
rights occupy a higher plane than his First Amendment
freedoms?
B. The critical issue in determining whether due process
requires application of the Sixth Amendment's right to a
jury trial in juvenile court proceedings is whether that right
is so fundamental that a proceeding conducted in its absence
must be said to be intrinsically unfair. Duncan v. Louisiana,
_ 391 U.S. 145 (1968), does not argue to the contrary and
is distinguishable from the case at bar in that the jury right
sustained in that case in criminal proceedings has enjoyed
long continued and universal acceptance in all American
jurisdictions. Similarly, Jn Re Winship, 397 U.S. 358 (1970),
where this Court held that the reasonable doubt standard
was applicable both to criminal proceedings and juvenile
court adjudications, also presented a sitvation where there
was virtually unanimous adherence to the reasonable doubt
standard in all common law jurisidctions since the Nation’s
beginnings.
At the present time, thirty-four states deny the juvenile
a right to trial by jury in cases such as this. Eleven other
jurisdictions grant the right, but only upon demand. Of
the remaining five states, it is very probable that four of
them would not grant a jury trial if the question were
directly raised for decision. And even in those states where
| the jury trial is provided for in juvenile court proceedings,
exercise of that right, at least prior to this Court’s decision
| in Gault, was a very rare occurrence.
Not only has the right to a jury trial in juvenile courts
been denied both by legislative action and court decision,
but the opinions of the scholars and the experts in the field,
with a rarely encountered dissent, have opposed the incor-
poration of the jury trial into juvenile court proceedings.
—_—_———————
Nor can it be argued, as it could be in contending that
the reasonable doubt standard should be observed in juve-
nile courts, that the jury trial is required as “a prime
7
instrument for reducing the risk of convictions resting on
fundamental error and preserving the presumption of inno-
cence.” Indeed, as a result of this Court’s decision in
Winship, juvenile court judges now must apply the reasonable
doubt standard in any future adjudication of delinquency.
Putting unenlightening labels aside, it remains true that
the juvenile court system, like American administrative law,
is sui generis. It finds analogies for the procedures it
observes in other areas of the law, but the system maintains
its own unique nature which was specially fashioned in order
to achieve the particular purposes for which it was created.
Before transferring the jury system in toto to the juvenile
court, some consideration should be given to the relative
merits of jurors, as opposed to judges, as instruments of
fair and effective factfinding. Recent studies have produced
persuasive findings that juries are not significantly better
equipped to find the facts than judges are. And juries can
be as arbitrary as judges. However, whatever the precise
merit or stature of the jury trial in criminal cases, its
desirability in other proceedings is sufficiently debatable
to preclude accepting its status as a fundamental necessity
required by due process in juvenile court proceedings.
C. In addition, there are several substantial adverse
practical consequences which might ensue if the jury trial
were to be required in juvenile cases. It is it injected into
the juvenile trial, it will bring with it the traditional delay,
formality and inevitable “‘clash and clamor” of adversary
proceedings with which adult jury trials so frequently are
permeated. Congress took note of these accouterments of
the jury trial when it very recently abolished “‘the cumber-
some and inappropriate trial by jury formerly provided by
statute in the District of Columbia.”” Both friends and foes
of proposals to cut back some of the procedural protections
enjoyed by the criminally-accused agree that the extended
delays which now occur between a criminal charge and its
final disposition are an abomination, unfair to many defend-
ants and frequently gravely hurtful to the peace and security
of law-abiding citizens. The substantial contribution of the
jury trial to this unpardonable delay argues strongly against
its introduction into the juvenile court system, which, if it is
to work at all, must set in motion at the earliest possible
moment whatever special facilities and techniques it may
have for the counselling, treatment, rehabilitation and reform
of a troubled child. Unlike the reasonable doubt standard,
which this Court required in both criminal and juvenile pro-
ceedings in Winship, supra, there is no question that the im-
position of the jury trial in the juvenile court setting would
have a significant adverse “effect on the informality, flex-
ibility . . . [and] speed of the hearing . . .” 397 U.S. at 366.
With the jury trial will come the “public trial” required
by the Sixth Amendment. The Council has the gravest
doubts that anyone in this day of the widest possible news
coverage by the communications media can point to any
salutary effects—either from the point of view of the juve-
nile or from that of society—to be achieved by making
adjudications of juvenile delinquency public proceedings.
A decision announcing the existence of a right to trial
by jury in the juvenile court would put in question other
concomitants of the right to trial by jury, such as the
necessity of a unanimous verdict of such a jury. In addition,
the equation of the juvenile court with the criminal court
for purposes of incorporating a constitutional right to a jury
trial will raise other issues concerning other processes which
result in loss of liberty, such as mental commitment proce-
dures and dependency hearings.
Although not expressly raised, it may be argued that
denying a juvenile a jury trial where an adult would receive
one in a criminal proceeding constitutes a violation of equal
protection. Such an argument should be unavailing. There
are many distinctions in the treatment of children recognized
————
9
in the law which are long established and well accepted. In
all of them, it is the condition of being a child and the
presumption of immaturity which attaches to that condition
which both explains and justifies the difference in the law’s
treatment of the juvenile as opposed to the adult. The same
reasons that justify the conclusion that due process does not
require a jury trial serve also to support the conclusion that
the Equal Protection Clause is not violated if he is denied
the jury trial right. At the root of both conclusions is the
ancient assumption, overwhelmingly supported by the teach-
ings of psychology, biology, physiology, sociology and
ordinary human experience, that a child is not the same as
an adult. Therefore, treating him as a child and not as an
adult is not unconstitutional, provided that he is treated
fairly.
QUESTIONS PRESENTED
The determinative issue here is whether the Sixth Amend-
ment, as applied to the States through the Due Process
Clause of the Fourteenth Amendment, requires a trial by
jury of a juvenile in a juvenile court for an offense which,
if committed by an adult, would require a jury trial if
requested. Additionally, however, though not expressly
raised below, the issue presented may carry equal protection
implications; ie., is it an invidious discrimination not to
provide the opportunity for a trial by jury to a juvenile
where it would be provided if an adult were involved in
the same situation? For the reasons which it states below,
the Council believes that both of these questions should
be answered in the negative.
re ste
a
ARGUMENT
I. DUE PROCESS DOES NOT REQUIRE THE RIGHT
OF A JURY TRIAL FOR A JUVENILE
In order to answer the basic constitutional question
presented in this case and in the McKiever case, it first
must be determined whether the meaning and scope of
the due process to be applied in an adjudication of juvenile
delinquency is to be arrived at through a selective absorption
of rights specified in the Bill of Rights or through the full
scale incorporation of those rights as part of the guarantees
afforded by the Fourteenth Amendment. The amicus main-
tains: (1) that the due process requirements that must be
observed in an adjudication of juvenile delinquency should
be determined through a process of selective absorption of
the rights contained in the Bill of Rights according to a
standard that will assure “fundamental fairness” to the
juvenile; (2) that, so interpreted and applied, due process
does not require a jury trial in juvenile court proceedings;
and (3) that, in addition, the serious adverse practical con- .
sequences that will follow if a jury trial is required in
juvenile court proceedings argue strongly against the imposi-
tion of a jury trial requirement.
-A. Fundamental Fairness Is the Applicable Standard.
The petitioners in this case and those in the companion
McKiever case take their stand essentially on the basis of
four decisions of this Court. The first is Jn Re Gault, 387
U.S. | (1967). The other three are Duncan v. Louisiana,
391 U.S. 145 (1968), Bloom y, Illinois, 391 U.S. 194 (1968),
and In Re Winship, 397 U.S. 358 (1970). Whatever the
petitioners can make of these four decisions, they have one
undisputed common denominator. In each, this Court
arrived at a result favorable to the defendant by the selective
absorption of certain rights guaranteed by the Bill of Rights
to the particular case at hand, finding in each instance that
the denial of the particular right would be a departure from
“fundamental fairness”. That analysis, this amicus contends, -
is precisely the one which the Court should follow in decid-
ee —
—
ing whether the Sixth Amendment, as applied against state
action by the Fourteenth Amendment, requires a jury trial
in adjudicatory hearings conducted by the juvenile courts
of the various states.
On the other hand, petitioners argue that the Fourteenth
amendment requires the right to a jury trial in any juvenile
court adjudication carrying the threat of a serious depri-
vation of liberty. Their argument here proceeds from a
rather simplistic view of the Court’s recent decisions deter-
mining the fundamental requirements of due process in
juvenile court adjudications and determining, with respect
to criminal proceedings carrying the threat of serious depri-
vations of liberty, that the Fourteenth Amendment includes
the Sixth Amendment’s jury trial guarantee. Basically, the
argument is that the Court has determined in Gault and
| Winship that juvenile court adjudications are subject to the
| standards of the due process clause, and the Court has de-
| termined as well in Duncan and Bloom that the due process
clause guarantees a jury trial in state criminal proceedings,
and, therefore, the right to a jury trial must apply to juvenile
adjudications.
11
The basic flaw in petitioners’ argument is that, while the
Court in Gault rejected the rigid concept that juvenile court
adjudications are civil and therefore free from any due
process limitations applied in criminal proceedings, the Court
also rejected, both in Gault and Winship, any procrustean
application of all of the due process requirements in criminal
proceedings to juvenile court adjudications. Rather, the
Court made clear in Winship that its decision in Gault
imposed upon juvenile court adjudications only the “‘essen-
tials of due process and fair treatment”’ and not that “the
hearing at this stage conform with all the requirements of a
criminal trial or even of the usual administrative proceeding
....” 397 US., at 359. Indeed, the Court in Winship speci-
fically rejected the position of the dissent that its Winship
opinion adopted the premise that juvenile court adjudications
may be equated fully with “criminal prosecutions ... .”
Id., at n. 1.
7
12
The position of this Court in the constitutional domesti-
cation of the juvenile court adjudications simply has not
proceeded upon the kind of broad brush approach suggested
by the petitioners, and the Council here urges only that the
Court continue the approach followed in Gault and in
Winship—a searching evaluation of those procedural safe-
guards applied in criminal proceedings that are at the very
heart of assuring fundamental fairness in adjudications carry-
ing the threat of serious loss of liberty, viewed in light of
the effect of the imposition of those safeguards upon the
recognized advantages of the distinctive methods of adjudi-
cation long followed in juvenile courts. Application of that
approach here, we contend, leads to the conclusion that the
right of jury trial is not constitutionally required in juvenile
court adjudications, nor does it carry advantages outweighing
its adverse effect upon the goal of expeditious and compara-
tively informal adjudication of juvenile delinquency.
The Council has no quarrel now, nor did it at the time
that the cases were before this Cov-*, with the results in
Gault and Winship. But it requires no denigration of the
values implicit in trial by jury to say, as we show below,
that that right does not occupy the same critical role in
assuring fundamental fairness as do those secured in Gault
and Winship. Those rights—notice of charges, assistance of
counsel, cross-examination, the privilege against self-incrimi-
nation, and proof beyond a reasonable doubt—unquestionably
are essential to protect against the arbitrariness that always
can—though we suggest it rarely does—infect adjudications
of juvenile delinquency. Those rights admittedly were
accorded petitioners here, however (see Petitioners’ Brief,
at 15), and the importance of trial by jury must, we contend,
be determined in the context of juvenile court adjudications
that are now subjeci to all of the safeguards imposed by
Gault and Winship.
Further, the Court emphasized in both Gault and Winship
not only that many unique aspects of juvenile court adjudi-
cations were valuable but also that the procedural safeguards
Sa
13
imposed in those cases would not inhibit that value. Thus,
in Winship, the Court pointed out that the requirement of a
reasonable doubt standard would have no “effect on the
informality, flexibility, or speed of the hearing at which the
factfinding takes place.” 397 U.S., at 366. Again, the
Council has no quarrel with that judgment. To be sure,
the requirements imposed in Gault and Winship have required
substantial changes in juvenile court procedures in some
jurisdictions, but those changes have imposed no critical
inhibitions upon the goal of expeditious and flexible adjudi-
cations. This case, however, involves a vastly different
requirement from the standpoint of orderly administration
of the juvenile courts, as we show later in this brief.
In Re Gault, supra, is the landmark case, of course. That
decision, as Dean Paulsen put it, has brought about the
“constitutional domestication of the juvenile court.”* How-
ever, on any fair reading, Gault must be taken as holding
that the only constitutional rights required to be observed
in juvenile court proceedings are those that are considered
to be fundamental to the achievement of fairness to the
juvenile. To be sure, concern has been expressed by some
courts® and commentators’ that Gault implied that all the
constitutional protections now applicable to adults in crim-
inal proceedings must be applied automatically and totally
in juvenile court proceedings. To the Council, however, such
anxiety does not appear well founded. Nothing in the
language of Mr. Justice Fortas, writing for the Court in
Gault, suggests any intention of this Court to transform the
SPaulsen, The Constitutional Domestication of the Juvenile Court,
The Supreme Court Review 233 (1967)
’ ©DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508, 513 (1968),
app. dism. on other grounds, 396 U.S. 28 (1969); Nieves v. United
States, 280 F. Supp. 994, 1000 (S.D. N.Y., 1968).
7Rosenheim, Standards for Juvenile and Family Courts: Old Wine
in a New Bottle, 1 Family L.Q. 25, 28 (1967); Wheeler and Cottrell,
Juvenile Delinquency: Its Prevention and Control 33 (1966); Note,
Gault in Indiana, 43 Ind. LJ. 661, 667 (1968).
—
14
juvenile court into another criminal court, bound by ail of
the adjudicatory procedures of a criminal court. To the
contrary, reiterating hi. view in Kent v. United States, 385
U.S. 541, 562 (1966), Mr. Justice Fortas said in Gault:
“We do not mean... . to indicate that the hearing to
be had n-ust conform with all the requirements of
a criminal trial or even of the usual administrative
hearing, but we do hold that the hearing must mea-
sure up to the essentials of due process and fair
treatment.” 387 U.S., at 30.
Other language in Gault confirms the conclusion that
the decision discloses no reasonable basis for the sweeping
view that this Court intended to fasten on juvenile court
proceedings all the procedural standards required by the
Fourteenth Amendment in criminal proceedings. For exam-
ple, the Court pointed out that the due process standard
to be observed is to be “intelligently and not ruthlessly
administered.” 387 U.S., at 21. Nor did the Court suggest
in Gault that the adversary system in full panoply was now
to be required in the juvenile court. It said only that due
process requirements “‘in contested cases will introduce some
elements of the adversary [proceedings] .. . .”” (Emphasis
supplied). 387 U.S., at 27. And the Court observed that
“nothing will require that the conception of the kindly
juvenile judge be replaced by its opposite, ...” Jbid.*®
Indeed, with one exception, the rights which Gault
established for juveniles charged with delinquency are the
same that any litigant would enjoy, by virtue of the require-
ments of due process, in most types of civil proceedings
and hearings before administrative agencies exercising quasi-
judicial powers, as well; i.e., (1) the right to adequate notice;
(2) the right to confront and cross-examine witnesses; (3)
the right to remain silent; and (4) the right to counsel,
including the right to court-appointed counsel if the juvenile
®For the same understanding of the implications in the Gault
decision, see Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A.2d
9, 15-16 (1967).
ie
15
or his parents are indigent. It is only the last right that, as |
yet, has not been extensively provided for in civil and |
administrative hearings. Too plainly for argument, the
minimum standards of fair procedure required for hearings
in civil cases should also apply to hearings in a juvenile
court.
It could be logically argued that constitutional decision
making might be simpler if the “spacious language”? of the
Due Process Clause of the Fourteenth Amendment were
construed to embrace all of the rights contained in the Bill
of Rights. However, this Court has never followed such a
course of adjudication with respect to adults charged with
crimes. It should not now undertake to do so with respect
to juveniles similarly charged. In its most recent ruling
touching upon the constitutional prerequisites that must
be observed in juvenile court proceedings, it deliberately
eschewed such an approach. In its decision last Term in Jn
Re Winship, 397 U.S. 358 (1970), this Court held that proof
beyond reasonable doubt is required by the Due Process
Clause, both in criminal trials and in adjudications of
juvenile delinquency, because such a requirement is among
the “essentials of due process and fair treatment” to be
afforded both the cirminally accused and the youth charged
with delinquency. '°
This Court’s rejection, in Gault, of an uncritical and
mechanical application of the Bill of Rights in juvenile court
*Duncan v. Louisiana, 391 U.S. 145, 148 (1968).
'©Unsurprisingly, this approach, even more than the result arrived
at, produced a dissent by Mr. Justice Black, who for nearly a quarter
of a century consistently, but unsuccessfully, has argued against pursuit
of the “selective incorporation” theory of the Bill of Rights, main-
taining that only the express proscriptions or implied commands of
the Bill of Rights can be invoked to strike down the actions of a
legislative body, iederal or state. Compare Mr. Justice Black’s dis-
senting opinion in Winship, 397 U.S., at 377-386, with Mr. Justice
Harlan’s concurring opinion in the case, 397 U.S., at 368-376.
16
proceedings has been approved by both critics’ and sup-
porters'? of the juvenile court system. The state courts
also, including the Arizona Supreme Court, whose opinion
in Gault was reversed by this Court,'> have espoused a
similar view. The North Carolina and Pennsylvania Supreme
Courts, from which this case and the McKiever case have
come to this Court, also have adopted the same under-
standing of how the Bill of Rights is to be applied to juvenile
court proceedings.'* In such a view, the critical issue ig
what affords fairness to the juvenile, not what are the precise
rights to which an adult can lay constitutional claim in
criminal proceedings. '5
The Council is of the same view that Mr. Justice Harlan
first expressed in his separate opinion in Gault and repeated
in his concurring opinion in Jn Re Winship, supra, i.e., that
“there is no automatic congruence between the procedural
requirements imposed by due process in a criminal case and
those imposed by due process in juvenile cases.”” 397 U.S.,
at 375. Further, the Council is of the opinion that this
criterion of distinct and independent fairness to the juvenile
in determining what his constitutional rights are has been
developed and maintained for sound reasons. We need not
accept the lazy logic of labels to recognize, as this Court
did in Gault, supra at 22, and in Winship, supra, at 366-67,
that criminal proceedings and juvenile court proceedings are
distinguishable in ways that should be maintained. The
''Dorsen and Rezneck, In Re Gault and the Future of Juvenile
Law, | Family L.Q. 1, 3 (1967); Paulsen, Fairness to the Juvenile
Offender, 41 Minn. Law Review 547, 550 (1957); Paulsen, Kent v.
United States: The Constitutional Context of Juvenile Cases, The
Supreme Court Review 167, 186 (1966).
12Rosenheim, Standards for Juvenile and Family Courts, supra;
Wheeler and Cottrell, Juvenile Delinquency, note 7, supra.
13 4 pplication of Gault, 99 Ariz. 181, 407 P.2d 760 (1965).
14169 S.E.2d at 887; 234 A.2d at 15-16.
'SIn Re State in Interest of Carlo, 48 N.J. 224, 225 A.2d 110, 116
(1966); and see cases cited Jn Re Gault, supra at 12, fn. 8.
17
basic supporting justification for that distinction between
the two is the understanding that there is a rational basis
for procedural differences between juveniles charged with a
violation of law and their adult counterparts. It goes without
saying that juveniles are of an age when the enticements of
crime are most alluring, yet when their sense of right and
wrong is at its peak and when their susceptibility to reform is
the greatest.
Nor has this Court been oblivious to the fact that a
child’s immaturity may serve as a basis, if necessary for his
protection, for the state not to afford him the same scope
or quantum of constitutional freedom that an adult other-
wise might enjoy. As Mr. Justice Frankfurter once put it:
“Children have a very special place in life which law
should reflect. Legal theories and their phrasing in
other cases readily lead to fallacious reasoning if
uncritically transferred to a determination of a state’s
duty towards children.” '®
For example, the Court has sanctioned restriction by the
legislature of a child’s free exercise of religion rights, Prince
y, Massachusetts, 321 U.S. 158, 170 (1943), and his rights
to free speech, Ginsberg v. New York, 390 U.S. 629, 638
(1968), when reasonably necessary for the protection of
his own unavoidable condition of immaturity. Do a child’s
Due Process rights occupy a higher plane than his First
Amendment freedoms?
To be sure, some critics of juvenile court procedure have
argued that: “Juveniles have an intense perception of fair-
ness; and children are familiar nowadays from an earlier age
with fair trial notions of jury trial and reasonable doubt;”
and, therefore, to “deny them this right will work against
their rehabilitation which can only be built upon their belief
that they have been treated fairly.”'7 Mr. Justice Fortas
apparently paid some heed to this notion in his opinion in
'©May v, Anderson, 345 U.S. 528 at 536 (1953).
'7Cyime in the National Capital, Hearings on S. 2981 Before the
Committee on the District of Columbia, United States Senate, 91st
Cong., Ist Sess. (1969), p. 1866.
on
cence CTE
18
Gault. See 387 U.S., at 26. On the other hand, the
sociological and psychological findings which hold to the
contrary are those which, in part, gave birth to, and still
justify, the less formalistic procedural functioning of the
juvenile court. That court system, as it has evolved, has
been characterized by Dean Francis Allen as “the most
important and ambitious effort yet undertaken by our law
to give practical expression to the rehabilitative ideal.” '®
Moreover, more recent scientific findings in the field of
ethology tend to confirm that the sociologists, lawyers and
other reformers of the early 19th century who conceived
and created the juvenile court system were on the right
track in separating the juvenile from his adult criminal
counterpart. The leading writers in this relatively new scien-
tific field agree that one of the greatest mistakes in child
rearing may have been the assumption that aggression, in-
cluding unsocial behavior, on the part of a child is only a
response to frsutration and that a child must be indulged-
indeed treated as a little adult-for his own ultimate sound
development. Lorenz, On Aggression 47 (1969); Storr, Hu-
man Aggression 44 (1968); Morris, The Naked Ape 126-28
(1967); Ardrey, The Territorial Imperative 20-21 (1966).
The recent works of these writers have seriously discredited
the behavioristic-environmentalistic theories of the nature of
man, including the rearing of the young, that have been in
vogue for half a century. They would surely find amusing
but unfounded the notion that, unless society and the law
provide a juvenile with identical procedural treatment to that
afforded an adult, he might be permanently marred, so far
as his future social adjustment as a human being is concerned.
The applicability of a particular constitutional right in the
juvenile court, when invoked under the mandate of due
process, should be tested by its relevance to the standard of
fairness to the juvenile within the total context of the
juvenile court’s quest for the rehabilitative ideal. Judged in
18 Allen, The Borderland of Criminal Justice 48 (1964).
—
19
that light, amicus contends, for the reasons now stated, that
the right to trial by jury is not so fundamental to a system
of ordered liberty that it must be observed in a juvenile |
court proceeding.
B. Due Process Does Not Require a Jury Trial for a
Juvenile Charged with Delinquency. The critical issue in
determining whether due process requires the application
of the Sixth Amendment’s right to a jury trial in juvenile
court proceedings is whether that right is so fundamental
that a proceeding conducted in its absence must be said to
be intrinsically unfair. To this the petitioners offer a
syllogistic, but unpersuasive, answer. First, they point out
that this Court’s decisions in Duncan v. Louisiana and Bloom
y, Illinois, supra, establish that the Sixth Amendment, as
made applicable to the States by the Fourteenth Amend-
ment, requires a jury trial in any serious criminal case, sub-
sequently found by the Court to be any case where the maxi-
mum penalty to which the defendant might be exposed is in
excess of imprisonment for six months. Baldwin v. New York,
38 U.S. Law Week 4554, June 22, 1970. Accordingly, petit-
ioners say, since the offenses on which the adjudication of
delinquency was based in both this case and McKiever would
expose the juveniles to possible confinement for a period in
excess Of six months, they necessarily had a constitutional
right to a jury trial before they could be adjudicated delin-
quents. Further, the petitioners argue, the Court’s even more
recent decision in /n Re Winship, supra, holding the reasonable
doubt standard of proof to be required by due process both
in criminal proceedings and in juvenile court proceedings,
also supports the claim of a jury trial right which they assert
in this litigation.
Amicus turns to these cases. It is perhaps Duncan that
is most critical. There, Mr. Justice White, writing for the
Court, spoke not of fundamental fairness in the abstract
but of such fairness according to the meaning ‘“‘the American
scheme of justice” concretely ascribes to it. The Court
there granted that “‘[a] criminal process which was fair and
20
equitable but used no juries is easy to imagine,” but cop
tinued that “no American State has undertaken to construct
such a system.”” 391 U.S., at 150, n. 14. At a later point in
the opinion, the Court again emphasized that the “strong
support” which the jury trial right in criminal causes had
received in the laws of every state was very pertinent in
determining whether it was fundamental in the American
system of justice. Jd., at 154."°
The same constitutional approach was followed by Mr.
Justice Brennan, writing for the Court in Jn Re Winship,
supra, in concluding that the Due Process Clause requires
proof beyond a reasonable doubt both in criminal trials and
at the adjudicatory stage of a juvenile court proceeding when
a juvenile is charged with an act that would constitute a
serious crime if committed by an adult. In reaching that
conclusion, the Court first considered history, noting that
the “requirement that guilt of a criminal charge be estab-
lished by proof beyond a reasonable doubt dates at least
from our early years as a Nation.” Next, it noted the
“virtually unanimous adherence to the reasonable doubt
standard in common law jurisdictions”, observing that while
that adherence “may not conclusively establish it as a
requirement of due process, such adherence does ‘reflect
the profound judgment about the way in which the law
should be enforced and justice administered’ [citing Duncan
v. Louisiana at 155]”. The Court’s opinion in Winship thea
reviewed the “many opinions of this Court [which] indicate
that it has been assumed that proof of a criminal charge
19 As he did in Gault, and again in Winship, Mr. Justice Black, while
concurring in the result reached in Duncan v. Louisiana, was careful to
preserve his opposition to the selective incorporation theory on which
the Court proceeded and on which the majority opinion rested in
Duncan. However, he did concede that the selective incorporation
doctrine “does limit the Supreme Court in the Fourteenth Amendment
field to specific Bill of Rights protections only and keeps judges from
roaming at will in their notions of what policies outside the Bill of
Rights are desirable and what are not.” 391 U.S., at 145.
21
beyond a reasonable doubt is constitutionally required.”
397 U.S., at 362. Next, it referred to the vital role which
the reasonable doubt standard plays “in the American
scheme of criminal procedure . . . where it is a prime instru-
ment for reducing the risks of convictions resting on factual
error. . . [and] in truth is the standard [which] provides
concrete substance for the presumption of innocence”’, that
bedrock principle which lies at the foundation of the
administration of American criminal law. 397 U.S., at 358.
Going on to find that the “same considerations that demand
extreme caution in fact finding to protect the innocent
adult apply as well to the innocent child”, 397 U.S., at 365,
the Court then held that the same standard of proof must
be observed in the juvenile court as in the adult criminal
court. However, it was careful to discount that the imposi-
tion of the reasonable doubt standard in juvenile proceedings
would have “any effect on the informality, flexibility, or
speed of the hearing at which the fact finding takes place.”
397 U.S., at 366.7°
The Council does not disagree with either the results or
the rationale on which those results were reached in Duncan
and in Winship. However, it is clear from both of those de-
cisions, and before, that due process must take into account
the practices found suitable by the deliberate process of legis-
lative and judicial action throughout the States. On that
analysis, the juvenile court, as now conducted in more than
two-thirds of the States, cannot be found wanting in due
process by proceeding without a jury trial.
?°In his concurring opinion, Mr. Justice Harlan emphasized his view
that the requirement of proof beyond a reasonable doubt “does not
(1) interfere with the worthy goal of rehabilitating the juvenile, (2)
make any significant difference in the extent to which a youth is
stigmatized as a ‘criminal’ because he has been found to be a delin-
quent, or (3) burden the juvenile courts with a procedural requirement
that will make juvenile adjudications significantly more time con-
suming or rigid. Today’s decision simply requires a juvenile judge to
be more confident in his belief that the youth did the act with which
he has been charged.” 397 U.S., at 375.
22
From the inception of the juvenile court systems in the
States, provision for a jury trial right in the juvenile cour
statute, either expressly or impliedly, has been rare, and ug
of that right, where provided, has been even more unusual,
at least prior to Gault. A study of the statutes and judiciaj
opinions indicates that 34 states at present clearly and defi.
nitively deny the juvenile a right to a jury trial in cases such
as this.74_ Some 12 other jurisdictions (including, until rr.
cently, the District of Columbia) grant that right, but then
only upon demand. Senate Hearings, note 17, supra at
1835.72, Of the remaining five states, it is very probable
2! By statute in: Ala. Code Tit. 13, Sec. 369 (1969); Alaska Stat,
47.10.070 (1968 Supp.); Ariz. Rev. Stat. Ann., Sec. 8-229 (1956):
Ark. Stat. Ann., Sec. 45-206 (1964 Repl.); Del. Code Ann. Tit. 10,
Sec. 1175 (1966 Supp.); Fla. Stat. Ann. 39.09(2) (1961); Ga. Code
Ann., Sec. 24-2420 (1959); Hawaii Rev. Stat., Sec. 571-41; Gen,
Laws Idaho Ann., Sec. 16-1813; Ind. Ann. Stat., Sec. 9-3215 (1967
Burns’ Supp.); lowa Code Ann. 232.27 (1969 Supp.); Ky. Rev. Stat.,
Sec. 208.060 (1962); La. Rev. Stat. Ann., Sec. 13:1579 (1968);
Minn. Stat. Ann., Sec. 260.155(1) (1967 Supp.); Miss. Code Ann.,
Sec. 7185-08 (1942); Vernon’s Ann. Mo. Stat., Sec. 211.171(6)
(equity practice controls); Neb. Rev. Stat., Sec. 43-206.03(2) (1943);
Nev. Rev. Stat., Sec. 62.190(3) (1963); N.J. Stat. Ann. 2A:4-35 (1963);
McKinney’s Consol. Laws N.Y., Family Court Act 164, 165 and Civ.
Prac. Law and Rules 4101; N.D. Century Code, Sec. 27-16-18 (1967
Supp.); Page’s Ohio Rev. Code Ann., Sec. 2151.35 (1968 Repl.); Ore.
Rev. Stat., Sec. 419.498(1) (1967 Supp.); Purdon’s Pa. Stat. Ann.,
Tit. 11, Sec. 247 (1954); Code S.C. Laws, Sec. 15.1095.19 (1968
Supp.); Utah Code Ann., Sec. 55-10-94 (1967 Supp.); Vt. Stat. Ann.,
Tit. 33, Sec. 651(a) (1968 Supp.); Rev. Code Wash. Ann., Sec.
13.04.030.
By judicial decisions in: Calif.: Jn Re Daedler, 194 Cal. 320, 228
P. 467 (1924); Conn.: Cinque v. Boyd, 99 Conn. 70, 121 A. 678
(1923); Md.: Jn Re Fletcher, 251 Md. 520, 248 A.2d 364 (1968);
Mass.: Comm. v. Page, 339 Mass. 313, 316, 159 N.E.2d 82, 85 (1959)
(dictum); Marsden v. Comm., 352 Mass. 564, 227 N.E.2d 1, 2 (1967)
(dictum); N.C.: In Re Watson, 157 N.C. 340, 72 S.E. 1049 (1911);
State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920); N.H.: Jn Re
Perham, 104 N.H. 276, 184 A.2d 449 (1962).
22By statute in: Colo. Rev. Stat. Ann. 22-8(1); Kan. Stat. Ann.
38-808 (1968 Supp.) but here the Juvenile Court merely refers the
issues to another tribunal for a jury trial and then it is returned for
BeEeeTrTrF FKRSPSePTRF BZA
23
that four would not grant a jury trial if the question were
directly raised for decision.* Admittedly, the customs and
usages of even a substantial number of States should not be
of controlling weight when great constitutional rights are at
stake. Nevertheless, they are extremely relevant to deter-
mination of the instant issue. As Mr. J ustice Clark once said,
“The fact that a practice is followed by a large num-
ber of states is not conclusive in a decision as to
whether that practice accords with due process, but
it is plainly worth considering in determining whether
the practice ‘offends some principle of justice so
rooted in the traditions and conscience of our peo-
ple as to be ranked as fundamental.’”**
Thus, so far as state practices are concerned, and unlike
the situation in Duncan v. Louisiana and in In Re Winship,
supra, the existence of a jury trial right in juvenile court
proceedings has received limited acceptance only in a dis-
disposition to the Juvenile Court; Mich. Stat. Ann., Sec. 27.3178
(598.17); Rev. Codes Mont., Sec. 10-603 (1947); Okla. Stat. Ann.,
Tit. 10, Sec. 1110; S.D. Code (1939), Sec. 43.0331 (but only the
court may order a jury of six); Vernon’s Ann. Rev. Tex. Stat., Art.
2338-1, Sec. 13(b); W.Va. Code Ann., Sec. 49-5-6; Wis. Stat. Ann.,
Sec. 48.25(2) (1957); Wyo. Stat. Ann., Sec. 14-108(c) (1961); 16 D.C.
Code 2307 (1967).
By judicial decision in: Peyton v. Nord, 78 NM. 717, 437 P.2d
716 (1968).
23in Virginia, amicus is advised that the current practice opposes a
jury trial. See, in general, Code Va. Ann., Sec. 16.1-162 (1950). In
Maine, the statute stipulates an informal juvenile court hearing. Me.
Rev. Stat. Ann., Sec. 15-2610. In Illinois, the earliest act provided
for a jury but the latest revision makes no mention of the matter.
In Tennessee the earlier right to a jury trial statute was repealed in
1955 and its replacement does not mention the issue. In Tennessee the
earlier right to a jury trial statute was repealed in 1955 and its replace-
ment does not mention the right. Tenn. Code Ann., Sec. 37-244.
Finally, in Rkode Island, the most recent statutory amendment has
replaced the direct prohibition of a jury with silence. Gen. Laws R.1.,
Sec. 14-1-30 (1967 Supp.).
247 eland v. Oregon, 343 U.S. 790, 798 (1952).
<ceeaan: ETS
24
tinct minority of the States. And the District of Columbia,
whose statute formerly provided for it,?5 has seen the re
cent repeal of the right through the action of the Congres
in enacting the District of Columbia Crime Bill, P. L. No,
91-358, 91st Cong., 2d Sess., approved July 29, 1970,.%
The right to a jury trial in juvenile courts has been de
nied both by legislative action and by appellate decisions in
cases contesting the legislative mandate.?” Moreover, the
opinions of the scholars, with only a rarely encountered
dissent,2* oppose the incorporation of the jury trial into
juvenile court proceedings.2® The Standard Juvenile Court
Act® and the Uniform Act*! do not provide for it. The
recent Minnesota Juvenile Court Rules have not adopted it.”
Nor was it viewed with approbation by the Task Force Re-
port on Juvenile Delinquency and Youth Crime of the
President’s Commission on Law Enforcement and the Ad-
ministration of Justice.**> Similarly, the recent guidelines
2516 D.C. Code 2307 (1967).
26 Washington Post, July 30, 1970, p. A-1.
27See, e.g., Estes v. Hopp, 73 Wash.2d 272, 438 P.2d 205 (1968);
Comm. vy. Johnson, 211 Pa. Super. 62, 237 A.2d 9 (1967). Contn:
Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968).
' 28antieau, Constitutional Rights in Juvenile Courts, 46 Comel
L.Q. 387, 400-01 (1961). But Professor Antieau bases his judgment,
in part, on an erroneous finding that “the legislatures in almost half
the states” provide for a jury trial in juvenile court matters; Dorsen
and Rezneck, supra at 22-23. Note, Criminal Offenders in the Juvenile
Court: More Brickbats and Another Proposal, 114 U. Pa. L. Rev. 1171,
1187 (1966).
29Tappan, Juvenile Delinquency 211-12 (1949); Sheridan, Stand-
ards for Juvenile and Family Courts 73 (1966).
Section 19 (6th Ed. 1959).
31 Uniform Juvenile Court Act, Section 24(a) (Nat’l. Conf. Comm.
on Uniform State Laws, 1968).
32Minn. Juvenile Court Rules, Minn. Stat. Ann. Supp. 1969, fol.
Chap. 260 (1969).
33p_ 38.
— eS, ae aT
fF oOo wf OC et OO TF
a ae
25
promulgated by the United States Department of Health,
Education and Welfare reject the requirement of a jury trial
as both unnecessary and undesirable. The Council be-
lieves it worthy of note that both the sponsors of the Uni-
form Act and HEW, while opposing a jury trial right for a
juvenile, did urge the adoption of the reasonable doubt
standard prior to the Court’s decision in Winship. 397 US.,
at 361, n. 3.
Even the 11 remaining jurisdictions which permit a jury
trial in juvenile matters make no convincing case that fun-
damental fairness requires a jury trial in the juvenile court.
An example provided by the Harvard Law Review note,
which the majority opinion in Gault cited with some fre-
quency, is the Denver experience. There, only two requests
for jury trials were made during a 25 year period and both
requests were withdrawn before the trial.** It is only fair
to note, however, that the number of demands for jury trials
increased perceptibly, at least in the District of Columbia,
following this Court’s decision in Gault, which, for the first
time, guaranteed a juvenile the right to be represented by
counsel either engaged by his parents or appointed by the
court in the event they were indigent. In the District of
Columbia three jury trials were held between 1964 and 1966,
11 jury trials in 1967 and 32 in 1968.% However, at the
hearings on the District of Columbia Crime Bill, the De-
partment of Justice reported that at ‘the end of fiscal 1969
there were 290 juvenile court cases awaiting jury trial in the
D. C. Juvenile Court.”°” The change in statistics furnishes
¥ Sheridan, Standards for Juvenile and Family Courts, U.S. Dept.
of Health, Education and Welfare 73 (1966); see also Senate Hearings,
note 17, supra at 1835-36.
SNote, Juvenile Delinquents: The Police, State Courts and Individ-
ualized Justice, 79 Harv. L. R. 775, 794 (1966).
Annual Report of the Juvenile Court of the District of Colum-
bia, Fiscal Year 1968, p. 9.
3"Senate Hearings, note 17, supra at 1804.
26
no argument in support of the proposition that fundamenta]
fairness requires a jury trial. Yet it does suggest, however,
that if the jury trial right is fastened on the juvenile court
system, lawyers will not hesitate to invoke it with ever.
increasing frequency.**
There is, then, no case which can be made for requiring
the jury trial in juvenile court proceedings on the basis
either of tradition or of its widespread use in the juvenile
court systems of the various States. Likewise, the proposi-
tion cannot be bolstered—in contrast to the case for the use
of the reasonable doubt standard—by any argument that it is
required as “‘a prime instrument for reducing the risk of con-
victions resting on fundamental error” and preserving “the
presumption of innocence.” Jn Re Winship, supra at 363.
Indeed, as a result of the Winship case, juvenile court judges
now must apply the reasonable doubt standard in any adju-
dication of delinquency in the future. The injection of a jury
trial requirement would neither make nor mar that duty of
the juvenile court judge. It was partially for that very reason
that the Congress repealed the jury trial requirement for the
District of Columbia. As the Senate report stated:
“The Senate District Committee has concluded,
again, that, inasmuch as the bill as reported pro- |
vides a sufficiently high standard of proof for fact-
finding, the option of trial to a jury is both unnec-
essary and ill-advised. It is readily apparent that
trial to a jury is the least expeditious means of fact-
38 Also illustrative of the impact of the Gault requirement that
lawyers must be provided in juvenile court cases is the report which
the National Council on Crime and Delinquency has received from
the Juvenile Court in Denver where, as noted supra, p. 25, jury trials
formerly were very rarely requested, but where in the first four
months of 1970 requests for jury trials were made in 54 of 58
pending delinquency petitions. Letter from Judge Ted Rubin, Judge,
Juvenile Court, Denver, Colorado, to the Associate Counsel, National
Council on Crime and Delinquency, May 12, 1970.
a
8&warast FS & we
BES 2EESSE
27
finding. At the same time, the therapeutic need for
expedition is especially great in a system devoted to
impressionable juveniles; and expedition is indeed
especially important in a system purported oriented
in its entirety to therapy or treatment.”*°
Moreover, whatever its failures have been, the juvenile
court system was in the beginning and remains now a unique
system of individualized justice whose purpose “‘is remedial
and to a degree preventive rather than punitive.” Putting
all labels aside, the juvenile court system, like American ad-
ministrative law, is something different from what existed
before. Its origins are not on the criminal side; nor can its
proceedings be characterized merely as “civil”. And while
the founders of the juvenile court may have found prece-
dents for what they created in chancery cases, juvenile courts
were not derived from the English Courts of Chancery !
They were and remain special statutory courts having juris-
diction over certain causes and as such have their own pro-
cedure adapted to the type of case heard.*? Thus, the juve-
nile court system, like administrative law, is sui generis,
finding analogies for the procedures it observes in other areas
of the law, but maintaining its own unique nature specially
fashioned in order to achieve the particular purposes for
which it was created. Could it be seriously maintained, for
example, that the failures or injustices occurring in the fact-
finding procedures of federal and state administrative tribu-
nals exercising important quasi-judicial powers justify im-
posing upon them the traditional factfinding prerequisites of
the common law system? It is no more persuasive to urge
that failures of the juvenile court system, due mainly to the
lack of public and private resolve in providing the support
Senate Report No. 91-620, 91st Cong., Ist Sess., December 18,
1969, p. 13.
“Standards for Juvenile and Family Courts, supra, 1 (1966).
*!Pound, Interpretations of Legal History 135 (1923).
*2Note 40, supra at 71.
Se —
28
and in approving the funds necessary to implement that re.
solve, require constitutional changes in the factfinding pre.
requisites to be observed in that court.
Finally, before transferring the jury system in toto to the
juvenile court, some consideration should be given to the
relative merits of jurors, as opposed to judges, as instruments
of fair and effective factfinding. Rhetoric aside,* it is sti
possible to define the concrete bases asserted to justify the
existence of the jury trial as an essential component of the
American system of justice. It is said to be effective asa
factfinding mechanism.“ However, the recent University
of Chicago jury trial study shows that judges and juries agree
on the proper disposition of criminal cases in 75.4% of the
cases studied.*5 This pattern of agreement is strong evi-
dence that juries are not significantly better equipped to find
the facts than judges are. The same point has been made by
some state courts in rejecting the constitutional necessity
for a jury trial in juvenile courts.*°
It has also been argued that the right to a jury trial “was
clearly intended to protect the accused from oppression by
the Government... .”*’ Yet past intentions should be read
in the light of current realities. Or as Mr. Chief Justice Burger
has said:
«|. a government bent on destroying individual lib-
erties can do it with a jury or with a non-jury inquiry
system. You can juggle any system if you've got
enough power in the establishment to do it.”
*3For one of the stronger criticisms of our traditional jury system,
see Frank, Courts on Trial 32 (1949).
“4Dorsen and Rezneck, supra at 23.
4SKalven and Zeisel, The American Jury 56 (1966).
46Dryden v. Comm., 4 Cr. L. Rep. 2253 (Ky. Ct. App., 1968).
*7Singer v. United States, 380 U.S. 24, 31 (1965); Duncan v. —
Louisiana, supra at 155.
481 The Center Magazine 7, November 1968.
ee — Oe es es 2 2 rs ee)
8).
29
Juries have, it has been said, a virtue in that they may
“afford a higher justice by refusing to enforce harsh
laws. . . .'*? Still, the jury that is flexible or non-rule
minded enough, or not sufficiently cognizant of its oath, to
acquit in one case may in a later case convict on whimsy,
too.*°
Then again, juries are said to be a buffer against the “over-
worked judge”®' who will give a case the assembly line
treatment, or ‘‘as a protection against jaded judge- who hear
case after case, day in and day out and decide on past
prejudices rather than present evidence.”*? Such generali-
ties are more epigrammatic than informative. Whereas some
juvenile judges are bound to be insensitive, others are equally
certain to be compassionate and experienced. The experi-
ence of trying cases is not always a debilitating influence
upon good and conscientious judges. It may also awaken
in them responses and sympathies which no amount of theo-
rizing would loose. In any event, any seasoned trial attorney
knows that juries quickly become jaded, too. Witness, for
example, the jockeying with the criminal trial calendar on the
part of defense counsel in order to avoid the adverse im-
pact of a trial before a jury soured by one month’s experi-
ence in court. Or as Kalven and Zeisel have put it,
“Somehow the combination of official role, tradi-
tion, discipline, and repeated experience with the
task make of the judge one kind of decider. The
perennial amateur, layman jury cannot be so quickly
domesticated to official role and tradition; it re-
mains accessible to stimuli which the judge will ex-
clude.”’5?
“Duncan v. Louisiana, supra at 187 (Harlan, J. and Stewart, J.
dissenting).
5°Kalven and Zeisel, supra at 9.
‘'Dorsen and Rezneck, supra at 23.
‘2Cyiminal Offenders in the Juvenile Court: More Brickbats and
Another Pi »posal, supra at 1187.
*3Kalven and Zeisel, note 45, supra at 498.
—
30
In recognition of this sometimes heated and almost never
empirically valid debate, where hyperbole abounds, over the
merits of the jury system, it would be anomalous to import
the jury trial wholesale into the juvenile court on the theory
that it is so fundamental to our way of justice as to be im.
perative in the juvenile court as elsewhere. Whatever the
stature of the jury trial in criminal causes, this amicus main.
tains that its desirability in other proceedings is sufficiently
debatable to preclude accepting its status as a fundamental
necessity required by due process in juvenile court proceed.
ings.
C. Imposition of a Jury Trial Requirement Would Carry
Adverse Practical Consequences for the Efficient Operation
of the Juvenile Court System. As argued, neither fundamen-
tal fairness, any continuing national tradition nor universal
practices observed in the States can be summoned to sup-
port the existence of a constitutional right to a jury trial in
the juvenile court. Beyond these pertinent considerations,
however, the practical consequences that would ensue if such
a jury trial is to be required furnish an additiona! strong de-
terrent to requiring such a drastic change in the proceedings
of the Nation’s juvenile courts.
First, if the jury trial is injected into the juvenile court
system as a matter of right, along with it unfortunately will
come the traditional delay, formality and inevitable “clash
and clamor’®* of adversary proceedings with which adult
jury trials are so frequently permeated. The Congress very
recently indicated its awareness of these unfortunate ac-
couterments of a jury trial imposed on juvenile court pro-
ceedings when it eliminated the ‘“‘cumbersome and inappro-
priate trial by jury” formerly required by statute in the
District of Columbia. (Emphasis supplied).55 Noting the
54 Dryden v. Comm., note 46, supra.
55Senate Report No. 91-620, note 39, supra at 1.
ver
he
ort
ny
im-
the
in-
tly
tal
ed-
31
“delay in juvenile proceedings [which] operates to the detri-
ment both of the community and of the child”, the Senate
District Committee recommended, and the Congress ap-
proved, abolition of the jury trial in the District of Colum-
bia Juvenile Court as the backlog of jury cases in that court
edged past the 300 mark.°® The Senate conferees on the
District Crime Bill, reporting back to the Senate after the
Conference Committee had reached agreement in recom-
mending approval of the legislation, made the practical
argument against the juvenile jury trial in strong terms, say-
ing:
“Pursuant to the conference report on S. 2601,
jury trials are no longer to be allowed in juvenile
proceedings; however, the standard of proof for
purposes of factfinding in delinquency proceedings
is raised from by a preponderance of the evidence to
beyond a reasonable doubt. In the view of the con-
ferees, the reasonable doubt standard renders jury
trial unnecessary as protection against judicial pre-
disposition. Equally important, again in the view of
the conferees, the jury has no function to exercise as
a buffer of broad community judgment between the
accused and some prescribed statutory punishment
(that is, a specific range of penalties), since under the
juvenile code there are no prescribed punishments,
as such; disposition, treatment, in juvenile proceed-
ings uniquely lies, and in theory is intended to lie,
within the sole discretion of the judge. In the view
of the conferees, any benefit lost in the elimination
of jury trials is more than offset by the gain in ex-
pedition essential in juvenile cases. It is the case,
furthermore, that jury trials may prove unnecessa-
rily traumatic for the immature persons, children, in
the juvenile system. Also, a peculiar need for ex-
pertise i. factfinding may arise in juvenile proceed-
ings as the testimony of juvenile parties and wit-
“Ibid. at p. 6; Senate Hearings, note 17, supra at 1804.
CE
32
nesses must be assessed from the often unusual
juvenile perspective.*”
Indeed, both friends and foes of proposals to cut back
some of the procedural protections enjoyed by the crimj-
nally accused agree on one point—that is, the extended delays
which now occur between a criminal charge and the final
disposition of that charge, at least in a great majority of the
larger urban jurisdictions of the Country, are an abomino.
tion, unfair to many defendants and frequently gravely
harmful to the peace and security of law-abiding citizens
Beyond dispute, the jury trial requirement is a partial, but
substantial, contributing factor to such delay. Do we really
wish to import the jury trial and its propensity for invidious
delay into the juvenile court system, a system which, if it is
to work at all, must set in motion at the earliest possible
moment whatever special facilities and techniques it may
have for the counselling, treatment, rehabilitation and re.
form of a troubled child?
The Council believes that the answer to the not-o-
rhetorical question posed immediately above is obvious,
Others, however, purport to read a contrary message in
this Court’s opinions in Gault and Winship, supra, where
procedural rights required in adult criminal proceedings were
held to be constitutional prerequisites for juvenile court ad-
judications. The amicus will not repeat the analysis of those
two decisions which it made earlier in this brief. It is suf-
ficient to say that as to Gault the minimal procedural rights
which the Court required in that decision are basic and fun-
damental, not only in criminal, but also in a great majority
of civil and administrative, proceedings. Indeed, they are the
sine qua non of any fair adversarial hearing within the mean-
ing of the Anglo-Saxon tradition. But the procedural evils
at the cure of which Gault was directed are not affected by |
substituting a jury of laymen for an experienced juvenile
57Statement of the Managers on the Part of the Senate Regarding
Conference Action on S. 2601, Committee Print, 91st Cong., 2d Sess.,
July 15, 1970, p. 19.
5 tl es a
-— «
—_
= wo OS aS
oos# ™» Tt
a oe
ails a
33
court judge. This is especially true now that this Court has
determined that the factfinder in a juvenile court proceed-
ing must apply the reasonable doubt standard rather than the
preponderance of evidence standard of proof.
Nor, as we have attempted to show, does the Court’s de-
cision in Winship, supra, argue in favor of the result sought
by the petitioners here and the appellants in McKiever. As
previously stated, Mr. Justice Brennan, speaking for the
Court in Winship, was careful to point out that the rea-
sonable doubt standard would not have “any effect on the
informality, flexibility or speed of the hearing at which the
factfinding takes place.”” 397 U.S. at 366. We suggest that
no one rationally can make that statement with respect to
the imposition of the jury trial requirement in juvenile court
proceedings.
Apart from the delay factor which, by itself, should deter
the Court from requiring a jury trial in juvenile court pro-
ceedings, there are other significant practical considerations
which argue against its imposition. For one, a jury trial in
the juvenile court, by replacing the judge as the finder of
fact, will require substantial alteration of the traditionai
practice observed in that court. As he becomes of necessity
areferee in a contest between the state and one of its juvenile
citizens, and deprived of the power of being the final arbiter
of fact, the juvenile court judge will have to concern himself
much more with the technicalities of procedure, with the
consequently reduced capacity to guide and mold the hear-
ings. Hearsay evidence, for example, now admissible in judge-
conducted delinquency adjudications would probably have
to be excluded where a jury sits in judgment in the juvenile
court.
‘Secondly, there is the matter of the “public trial” re-
quired by the Sixth Amendment to the Constitution of the
United States. Even today, among those 11 States which
provide opportunity for a jury trial in juvenile court, only
four permit open or public hearings, and even in these four
there are provisions for closing the hearing when felt neces-
34
sary in the discretion of the court. Senate Hearings, not
17, supra at 1835. The Council has grave doubts that anyone
in this day of the widest possible news coverage by the com.
munications media can point to any salutary effects—either
from the point of view of the juvenile or from that of soci.
ety—to be achieved by making adjudications of juvenile de.
liquency public proceedings. Nor is it any answer to the
obvious to say that the juvenile can waive his right to a pub-
lic trial. The very facts of the case at bar show what little
control the juvenile has over protecting his privacy when
other forces, including less than reticent counsel, are ip.
clined in the other direction. If a juvenile court delinquency
hearing is to be made a public matter, this Court truly wil
have supervised the complete conversion of the juvenile court
into a court which, so far as its disposition procedures are
concerned, is exactly identical to its adult criminal court
counterpart. That result would, in the judgment of the
Council, be deplorable.
Then, there is the further concern that the right to a jury
trial does not travel without its necessary impedimenta®
These may have a constitutional dimension, if the right to
jury trial does so. For example, will the jury verdict have
to be a unanimous verdict, as suggested by the appellant in
DeStefano v. Woods, 392 U.S. 631 (1968)? How representa-
tive must the jury be? In point of fact can it be representa-
tive, since by law in most jurisdictions persons under 21 can-
not serve on juries? Amicus mentions these troublesome
peripheral issues only to emphasize that any declaration
that there is a constitutional right to a jury trial in juvenile
court proceedings inevitably will introduce other trouble-
some questions which will put the juvenile court to the test
as much as they will this Court.
Finally, there is the necessary formality that inevitably
accompanies a jury trial. It may be that the informality of
S8Bi00m y. Illinois, 391 U.S. 195, 213 (1968) (Fortas, J. concur
ring)
ae a Oe Oe ee ae ae
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35
the juvenile court is not an unmixed blessing,*? but it does
have certain positive advantages for the juvenile. It frustrates
the urge of the youth for notoriety and attention © It re-
moves some portion of the stigma of criminality,®' and it
softens the impact of charge, trial and disposition upon an
impressionable youth.
There may be some doubt, resulting from an empirical
void, as to the exact nature of the rapport between judge
and juvenile, as to the extent to which a jury trial may have
a traumatic effect of any substantial duration upon the ju-
yenile. Yet, it is reasonably clear that “tearing the ‘socia-
lized’ procedure out of our [juvenile court] system is not a
great leap forward . . ."*? for the juvenile. “For children
who are receiving the ‘worst’ of both worlds, it is no great
achievement to brighten the one that may not matter as
much to them.”’®
Finally, the juvenile court is not the only quasi-criminal
tribunal with the power to institutionalize persons without
engaging in a trial by jury. Sex psychopath laws often have
the same effect. Mental commitment procedures are well-
known and frequently used illustrations of such authority to
cause loss of liberty. Even in criminal proceedings, there
might well be pre-trial hearings on an issue of the accused’s
competency to stand trial with a resulting long-term depriva-
tion of liberty. And in the juvenile court, in dependency
cases a similar consequence often follows from a jury-less
proceeding. A decision in this case requiring a jury trial in
S9Handler, The Juvenile Court and the Adversary System: Problems
of Function and Form, 1965 Wis. L. Rev. 7, 19; Note, Rights and
— in the Juvenile Courts, 67 Colum. L. Rev. 281, 284
- Tappan, Juvenile Delinquency, supra at 146.
Rubin, Crime and Juvenile Delinquency 66 (1958).
®2Paulsen, Kent v. United States: The Constitutional Context of
Juvenile Cases, The Supreme Court Review 167, 192 (1966).
S3Handler, The Juvenile Court and the Adversary System, note 59,
supra at 32.
ort (ENS
+ ee eee SNR tee ee -
one
36
the juvenile court could have a domino-like effect upon Other
proceedings which entail confinement and loss of liberty,
Such possible consequences should not be discounted in ar.
riving at a conclusion on the merits of the jury trial issue
posed in this case.
For all these reasons, the Council urges that the Court not
find that due process of law requires the imposition of a jury
trial right in juvenile court adjudications of delinquency,
However, the Council would like to point out that it is not
opposed to state statutes which permit a jury trial in the dis.
cretion of the court. Such provisions permit the holding of g
jury trial in a serious case where unavoidable prehearing
press reports have directed public attention to the case and
where the juvenile protests his innocence of the grave act
with which he is charged. This, however, is the compar
tively rare situation and can be accommodated by statutory
provision without imposing the jury trial as a constitutional
prerequisite in the other 99% of juvenile court cases.
EQUAL PROTECTION OF THE LAWS IS NOT OFFENDED
BY DENYING A JURY TRIAL TO A JUVENILE
The record in this case, as well as that in McKiever, does
not indicate that the juvenile petitioners expressly asserted
in the courts below any constitutional claim that denying
them a jury trial constituted a violation of the Equal Pro
tection Clause of the Fourteenth Amendment. Still, the
issue is not completely free from doubt. In the prior case
of DeBacker v. Brainard, supra, which the Court heard in its
1969 Term, several of the Justices inquired of counsel con-
cerning possible equal protection implications if a jury trial
is denied a juvenile in a proceeding in which he is charged
with delinquency. Accordingly, the amicus believes that the
equal protection question, whether formally preserved for
decision in this litigation or in McKiever, merits at least
some brief attention.
eS FC aS SE i eas
i | ee ee eee ee ee ee, | ee
37
Respondent North Carolina has cited illustrative instances
in which the law does not treat children on an equal footing
with adults. Children, the respondent notes, are required to
obey their parents, are not allowed to vote, are not allowed
to drive automobiles, cannot bind themselves by contract,
are not allowed to sit on juries and are required to attend
school. All these distinctions in the treatment of children
in the law are long established and well accepted. Of course,
it might be said that such distinctions are either for the pro-
tection of the child or are imposed out of an awareness that
the immaturity of youth precludes, at least in the great
majority of cases, possession of the necessary wisdom, dis-
cretion or maturity of judgment required to permit the
juvenile to exercise particular privileges enjoyed by adults,
such as, for example, the right to vote or the right to sit on
juries. Still, in all these situations it is the condition of being
, child and the presumption of immaturity which attaches
to that condition which both explains and justifies the dif-
ference in the law’s treatment of the juvenile as opposed to
the adult.”
Nevertheless, it might fairly be asked, is that condition a
convincing basis for denying a juvenile the alleged protections
of a jury trial—a right which an adult enjoys and a right, it
might be maintained, which is for the juvenile’s protection
and the exercise of which is not beyond his wisdom or judg-
ment to invoke intelligently?
There are several answers to the assertion of such an equal
protection claim for a juvenile’s jury trial right. In part, they
are the same answers which the amicus has given to the ques-
tion of whether due process requires affording the juvenile a
jury trial right, viz: (1) the jury trial right, at least in the
overwhelming run of cases, will not confer any significant
benefit, but may work some substantial disadvantage, to the
juvenile; (2) the entire juvenile court system, including the
majority of juveniles who are confronted with charges of
“Young, The Constitution and the Juvenile Court—Letter or Spirit,
44 Jour. of the Am. Jud. Soc. 94, 97 (1960).
}
;
i
;
38
delinquency, would be adversely affected by the substantig
delay introduced into that system if a jury trial is to be mp.
quired; and (3) even the most fundamental of constitutiong|
rights, including the right to free speech and the free eXercisg
of religion, no less than the right to a jury trial, may be p.
stricted when necessary for the long run protection of child.
ren, whatever short-run advantage may be thought to b&
provided in a particular case by the full grant of such right;
to the juvenile.
Thus, in essence, the same reasons which justify the
conclusion that denial of a jury trial in a juvenile court
proceeding does not deserve censure under the Due Process
Clause also serve to prevent its condemnation as a violation
of the Equal Protection Clause. At the root of both con-
clusions is the ancient assumption, overwhelmingly supported
by the teachings of psychology, biology, physiology, socio-
logy and ordinary human experience, that a child is not the
same as an adult. Therefore, treating him as a child and not
as an adult is not unconstitutional, provided that he is treated
fairly. Denying him a jury trial is not treating him unfair.
and the difference in such treatment is not one condemned
by the Constitution of the United States.
CONCLUSION
For the reasons stated in this brief, the amicus urges the
Court to affirm the decision of the North Carolina Supreme
Court in this case and that of the Pennsylvania Supreme
——
nce 7
39
ee ce
Court on appeal in McKiever v. Commonwealth of Pennsyl-
yania, No. 322.
Respectfully submitted,
ALFRED L. SCANLAN
MaRTIN J. FLYNN
i
734 Fifteenth Street, N.W.
Washington, D.C. 20005
JAMES E. STARRS
Of Counsel: George Washington University
Law Center
SHEA & GARDNER 2000 H Street, N.W.
734 Fifteenth Street, N.W. Washington, 9.C. 20006
Washington, D.C. 20005
Attorneys for the National
Council of Juvenile Court
August 12, 1970 Judges
a nae TAT SBA B
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;
;
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;
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Re ee
INDEX
Page
Opinions ia cS ahh. cas Akh een cae cce DI At hs ORS eee 1
a iar esitirinasinckcernpenasincceh ca Sovepndannsosnaseinbapias 1
TTI ons <n2ssnsnsechonencsnininasscicnsancconnsanntsanese ccna 2
I AE i Ai oxi gih nie vainnseb ble sojinonsionnsh Wee eee cm
NE III ove ca xstnsoininnonsitasenssdsopcsenbanvecdioetinntntaninast 4
Argument:
THE PETITIONERS’ RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS WERE NOT VIO-
LATED, WHEN THEY WERE DENIED TRIAL BY
JURY ON THE ISSUE OF THEIR DELINQUENCY IN
JUVENILE COURT PROCEEDINGS WHICH COULD
HAVE RESULTED IN THEIR INCARCERATION FOR
PERIODS OF SIX TO TEN YEARS ...0.000020.2..0...eesceeecs 5
The Theory of Juvenile Courte ....................cecececeecteeseeeeees . 6
The Juvenile Court as a Social Institution 0.000000... 9
Specific Contention of the State of North Carolina .................... 14
The Fourteenth Amendment ..............................ccccccccccceeseeesceeseeenee 14
SNE COM RADE GUUMMOPICIOW o.oo. .ccccsccessccccccescccceesssssccgcsessencasecnes 18
Fundamental Fairness ...................... RE i 3) A Ren ote 20
bss asnhisc ns ch beds rebiinacclipetnn uadaieaniatde\ canecuhansihcnaianank vo 82
mee enmemeences of Jury Trials .....................cccccccccccccccsceccccesseseses 27
EE EEE ee TREE aK ee ts See TT ONE 29
aa ics eat Gaceasah sacbepdooc ae ttads ash aninemins wen cn aOR 80
CITATIONS
Cases:
Arnold v Nebraska, 38 Neb 752, 57 NW 378 (189) ...............0....... 15
Adkins v Children’s Hosp, 261 US 525, 67 L Ed 525, 48 § Ct
SIR RSA REE LEAD Ea A PEE: 21
Baldwin v New York, 38 Law Week 4554 (1970) 2.00000... 14, 27
Barry v Hall, 68 App DC 350, 98 F 2d 222 (1988) ............0000..... 17
i
eS a
Bartkus v Illinois, 359 US 121, 8 L Ed 684, 79 $ Ct 676 (1959) . 2%
Bible v State, (Ind) 254 NE 2d 819 (1970) o.oo... 16, 19, 27
Bloom v Illinois, 391 US 194, 20 L Ed 2d 522, 88 S Ct 147i
SPD easy xsh cansercinaveasabeainnetnganinssiossciishconascbdsstainaia uonehyi dene 0
Breedlove v Suttles, 8302 US 277, 82 L Ed 252, 58 S Ct 205
ROI taveanenveiadoncedunttcusuissnsts tis steshakeasscanieins’ aunskmialieoouneeeea ann 18
Bruton v US, 391 US 123, 20 L Ed 2d 476, 88 S Ct 1620 (1868) 9
Cafeteria Workers v McElroy, 367 US 886, 6 L Ed 2d 1280, 81
ME TOUR ccs Signe etereickenssvcienckes cA 2
Commonwealth v Johnson, 211 Pa Super 62, 284 A 2d 9
REEL AIS Sete Oe EEE ORI: Gl 9, 18
DeBacker v Brainard, 183 Nev 461, 161 NW 2d 508 (1968) . dd
Dryden v Commonwealth, 435 SW 2d 457 (Ct App, Ky)
ED pide peniceree ca eat Os 2 a os Sd oa 19, 28, 26
Duncan v Louisiana, 391 US 145, 20 L Ed 491, 88 S Ct 1444
(1968), reh. den 392 US 947, 20 L Ed 2d 1412, 88 Ct
RE TIRE IRS Re RM 4, 14, 15, 20, 22, 28, 27, 29
Ex Parte King, 42 Okla Cr 46, 274 P 682 (Okla Crim App 1929) .15
Fay v Noia, 372 US 391, 9 L Ed 2d 887, 88 S Ct 822 (1968) ...... 27
Garrity v New Jersey, 385 US 493, 17 Ed 562, 87 S Ct. 616
PRL 5a net Jos canada d venlnks Uandabecs oaaiebak bhaetbaa anc cos suelo 21
Gideon v Wainwright, 372 US 335, 9 L Ed 2d 799, 88 S Ct 792
RIES ie ta nd 2a cece adel Sens in co shaou. cansoorgsotsk aca otras ack aaa ee 21
Ginsberg v New York, 390 US 629, 20 L Ed 2d 195, 88 S Ct
1274 (1968), reh. den 391 US 971, 20 L Ed 2d 887, 88S
Ge aii ls 10
Glasser v US, 315 US 60, 86 L Ed 680, 62 S Ct 457 (1942) ......... 2
Greenwood v US, 350 US 366, 100 L Ed 412, 76 S Ct 410 (1956) ..17
Griffin v California, 380 US 609, 14 L Ed 2d 106, 85 S Ct
1229 (1965), reh. den 381 US 957, 14 L Ed 2d 780, 85
SN MIE otis ssh sajscpsa tha ch sdvtinneiblds nh vavoresbeirs cseieanssoncesed aa casa 21
Hallinger v Davis, 146 US 413, 36 L Ed 986, 18 S Ct 105 (1892) ..15
In re Agler, 19 Ohio St 2d 70, 249 NE 2d 808
IIIS dndibidabaihiptcns vie Ui badtanee cde heifers amiigihn taccckbiss 7, 11, 15, 17, 19
In re Burrus, 4 NC App 523, 167 SE 2d 254; and 275 NC
517, 169 SE 2d 879 (1969)
In re Estes v Hopp, 73 Wash 2d 263, 438 P 2d 205 (1968) .... 9, 19
In re Fucini, (Il!) 255 NE Oe Bee Cire i 8 19
In re Gault, 387 US 1, 18 L Ed 24 527, 87 S Ct. 1428
(1967) ..sssesssecseseeserssesecnenneeennen 8, 9, 15, 16, 18, 19, 21, 24, 27, 29
In re Johnson, 254 Md 517, 255 A 2d 419 (1969 ................ 6, 8, 19
In re McQuown, 19 Okla SAT, O1 PB GOD (LOOT). ..0501....ec0scecceecserneens 15
In re Murchison, 349 US 133, 99 L Ed 942, 75 S Ct 623 (1955) ...29
In re Shelton, 5 NC App 487, 168 SE 2d 695 PEED D “ssisieeesions pie |
In re State of N. J. in the Interest of J. W., 106 NJ Super
129, 254 A 2d B84 (1969) 0... ecsseecssecssessn sees eersseeeneenensnecsnens 19
In re Terry, (Pa) 265 A 2d 850 (1970) on... eee 19
In re a ae , 25 L Ed 2d 368, ........ |. aaa
(CUOTO) sisessccssceseessesscsenesssssssnveessnonnonnecs 7, 8, 9, 15, 16, 18, 24, 27, 28
Joint Anti-Fascist Refugee Committee v McGrath, 341 US
128, 95 L Ed 817, 718 Ce GRA CIOBL): 0. .cciceescrisseessssesecssonsssovenes 22
Kahn v Anderson, 255 US 1, 65 L Ed 469, 41 S Ct 224 (1921) ...... 17
Kemplen v Maryland, ........ 2p | es (No. 18,290, decided
May 22, 1970, 4th Cir) .........-cccccsecsesesseeseesesseeseesseneeneeneansensenseneen 6
Kent v US, 388 US 541, 16 L Ed 2d 84, 86 S Ct 1045
ro SS. salts chs cil thin csenictiomm acts 6, 8, 16, 18
Matter of Reis, 7 Cr. L 2151 (4-14-70, R.I. Fam Ct) ........000 29
Mays v Commonwealth, 82 Va 550 (1886) ...........c ees 15
Minn ex rel Pearson v Probate Court, 309 US 270, 84 L Ed
146, 60 S Ct 523 (1940)... ececesescsesseseesrseteneeseneestneneneneeetnenes 17
Moyer v Peabody, 212 US 78, 53 L Ed 410, 29 S Ct 235
| palch Se PES TRIB rl AA A Na RR 16, 21
Murray’s Lessee v Hoboken Land and Improv Co, 18 How 272,
1B Ly Bd B72 (UBBS) .nnn.....cccesescscsccsscsssssesscscerssssensssserseesensensncenensenes 16
McLaughlin v Florida, 379 US 184, 13 L Ed 2d 222, 85S Ct
GBB (UOGE) nnnncnccecccecscsssesnsssssessnsvcsvsnnenssvesenenenennesssesnenssscssansonsnsnensaes 18
Nieves v US, 280 F Supp 994 (S.D.N.Y.) (1968) ..........005 19, 21
Pee v US, 274 F 2d 556 (DC Cir 1959) .............ee 5, 15, 16, 21
People v Anonymous, 56 Misc 2d 725, 289 NYS 2d 782 (1968) ....19
iii
ae
ENN eR ND ae
ee
People v Day, 61 Mise 2d 786, 306 NYS 2d 610 (1969)
People v K...., 58 Misc 2d 526, 296 NYS 2d 404 (1968)... 4g
People v Smith, 9 Mich 198 (1861) ...000......0.00. cesses, Ib
People v “Y.O. 2404,” 57 Misc 2d 30, 291 NYS 2d 510 (1968) 39
Personnel Corp v Rogers, 276 NC 279, 172 SE 2d 19 (1970) 19
Peyton v Nord, 78 NM 717, 437 P 2d 716 (1968) ..................19, 98
Price v Commonwealth of Mass. 321 US 158, 88 L Ed 645, 648
Ct 438 (1944), reh. den 321 US 804, 88 L Ed 1090, 64
ME THIN akc thpciechsrabaseconey ai howcicnte ane elec ee 10
Saunders v Lupiano, 30 AD 2d 808, 292 NYS 2d 44 (1968) ... 19
Singer v US, 380 US 24, 13 L Ed 2d 630, 85 S Ct 783 (1965) 15
State v Batley, 32 R.I. 475, 80 A 10 (1912)
State v Burnett, 179 NC 735, 102 SE 711 (1920) ‘eseosusgeenalae
State ex rel Warner v Baer, 103 Ohio St 585 (1921) 000000.15
State v Hirsch, 91 Vt 330, 100 A 877 (1917) ............... Bt
State v Maine, 27 Conn 281 (1858) 000000000000... 3B
State v Turner, (Ore) 453 P 2d 910 (1969) ......... ....6, 8, 19, 24
United States v McMahon, 6 USCMA 709, 21 CMR 31 (1956) ...17
Whelchel v McDonald, 340 US 122, 95 L Ed 141, 71 S Ct 146
(1950), reh. den 340 US 923, 95 L Ed 666, 71 S Ct 356 ........ 16
Whitney v California, 247 US 357, 71 L Ed 1095, 47 S Ct 641
je EN ee MT EOS RE 18
Wilson v State, 16 Ark GOl -C1GE6): <...0...0..0.00 a ana 15
Statutes and Constitutional Provisions:
Min Tew Gene. mm GOED CAGE) anna sev scc.cce .ccscccssccnssccevcsnanacassel 80
California Welfare and Inst’ns Code §781 ....................cceeee 30
Colo Rev Stat Ann §37-8-3 (1964) ..........cccccccccccceccecceseeeeneneneeneee 19
D. C. Code Encyclopedia $12-1551 oo... ccc ccseceseeseenenennennnn 26
D. C. Code Encyclopedia $16-2307 (1961) .............cccccececeeesteee 19
Kan Gen Stat Ann §38-808 (Supp 1967) .2...0.000.0..0.ccccccceeses seen 19
Mich Comp Laws Ann, Ch 712 A 17 (1968) 22000000... 19
Bie Btat Amm SETLSRI(S) CIDER) ....0...ccscesecccecccscsccsccissscstsapsasessi 30
Mont Rev Codes Ann §10-604.1 (Supp 1969) 20.0... 19
iv
NC Constitution, Art I, $18 0... reece 4, 15
NC GS TABB oon eseeeseesssssseenescessnsssnnnneeeceeennennnneentcnen cavihbetaac oe 8
NC GS TA-181(8) ....---sssscssssseeesssseeececssssneeennsnnssecesnannnsecensnnneseeenannnsansssss 11
NC GS 7A-146(1) . 12
NC GS TAMA o.oo eecse ccseeeeeceseeesnsneessssesesnaseessenenssuecesaneeesnneeenesceean et
NC GS TA-24B ....scccsccesscsseeessessesessnsessessnsseesssseeeensnnscesnsuasecsnnnesennnannnecen 11
NC GS TA-2T2 oo... ecssssssssseecessescssneeessnssesssneessnnecesssesssnncesnnessennnestanareenane; 11
NC GS TA-2T7 oo. escssessssssssssesnecccesneessncnssecsnnecsssssssasensnentsnecsanecennaceesseesine 11
NC GS TA2TB(1) on. csssssssesssssessessnsesssescnecensesssecsnnnssseesssssneessssennecsnaten 11
NC GS TA-2TB(B) .onesssscsssssseessesssnsssnesessesneecnseenneennscsnseensarsnecssncennenen 12
BIC GD TABTO onsen sscscssssssserssssonsssesnensees sevessnessssnensvssionuseaonnnsnnedee ll
NC GS TABOO on. sseessecsssssscssssessecseessssseessennsensessssnsennsnssenesnees coeseen 12
oh: GC) es Sees 12
OI II oo sctcevssercnssunssectsnanerssascavosotiessenesnesersninensssttnsextaotncsde 12
SO TAOS nas cccccsscsssscsssescessosassnesscnenssssvedesnconsnsavencsosesensuensings 12
NC GS 7A-285 .......... DP weleiecceiablennacallsinniaamnuvauredeiesetenei iat 12, 13
MO MEE PA BOGCB) n.0nsecoseressesssrorsrssonsyssnceqeoordensannesseess nanpnebeyensngunetier 13
BOO GH TA-BUGCA). CO) neaseccssnsocsesccccncsssonencesens.consvascensenscenenenainat gassennns 18
DO GA OC CG) oainicseessscscncescscissssasssnesesssensossssccnsassostnassnevvecnanentoanreens 18
I occ acsacnsiigssviscavicvnccsohulundvanahcessShansenantosteaWPasr¥ey Saitanosontosseeh 14
RID oo cosccoecds ccsandlascacosnrosazehech cverencarbsssendnhsscsnesnbndasoeisibanesio suns 13
MEE BINION oon cxsnssocsinnaccnsassonncisuevasbssonscanssenonohnsharentyineuensbonveneas¥ounyes ll
BEE MD BORO) cass. cacaccasccscpvsedcocsttdcévcrevdsstinasanssttessdunensenteahodghobueenioosts 12
BT Oy IAD «ido csiseecasieks dsatb cdcuecvvadendvencsnstbaayscitinnesntosusvndadvadssabsscunstaneeies 12
WO GE BIDE nniscncestccisevcnccsisescertesssscctensconccsvesnssvsesessentassonsnansonnesscosuaeesne 14
Ee IE OD oo iécsanananoveventsiinsesnvsedbecnssesansidbnvasennababsediadbnajinansdqinyn ion sees 12
BE BI Sn nineceicsicedsvcsesssisesnconnsseusnasesspnosnessdarnissonunsessouasasnsonsasneonsanane 12
NEI GL s4 serch ey anasdavebshsonana.tiianneiisiebnkeensendansncchacndengnmnmenatens 12, 13
DIO GS D1O-BO(A) nnn... nceeecessccssccscsscsessecnenccsesstonersecesssseeessessansnsessrsssesers 13
BIC GS 100-296) nnn... cecccesssssscccsssesscsssrensrsrcesseessncnstsnssoenscsnnessnsnenesscnnes 12
NC GS 110-30
NC GS 110-37
NC Session Laws, c 911, s 11
Okla Stat Ann. Tit. 10, §1110 (Supp 1968)
SD Comp Laws Ann 26-8-31 (1967)
Tex Rev Civ Stat Ann, art 2338-1, §13(b) (Vernon Supp 1968)
W Va Code Ann §49-5-6 (1966)
Wis Stat Ann §48.25(2) (1957)
Wyo Stat Ann §14-108(c) (1961)
Miscellaneous Authorities:
42 Am Jur 2d, Infants, §3
California Governor's Special Study Comm'n on Juvenile
Justice Report, pts 1, 11 (1960) pp 19-20
43 CJS, Infants, §2
Coke on Littleton, 13th ed (1788), p 172
Fortas, Equal Rights—For Whom? 42 NYUL Rev 401 (1967)
George, Juvenile Delinquency Proceedings: The Due Process
19
Model, 40 U Colo Law Review 315 25, 26
Geis, Publicity and Juvenile Court Proceedings, 30 Rocky Law
Review 101
Kalven and Zeisel, The American Jury (1966)
Ketcham, The Unfilled Promise of the American Juvenile
Court, Justice for the Child 23 (Rosenheim ed 1962)
Ketcham and Paulsen, Address to the District of Columbia
Juvenile Practice Institute, 6 Cr. L 2173
Paulsen, Constitutional Domestication of the Juvenile Court,
1967 Sup Ct Rev 233
Paulsen, The Delinquency, Neglect and Dependency Jurisdic-
tion of the Juvenile Court, Justice for the Child (Rosen-
heim ed 1962) ; ;
Paulsen, Fairness to the Juvenile esa 41 Minn L Rev
547 (1957) 23, 26
Paulsen, Kent v United States: The Constitutional Context of
Juvenile Cases, 1966 Sup Ct Rev 167
vi
a ae ee eee eee
Sev —— Ww
ee re
Polow, The Juvenile Court: Effective Justice Be
Despotism? 53 A.B.A.J. 31 rm or Benevolent
i vd
The President's Commission on Law Enforcement and Ad-
ministration of Justice, Task Force Report: Juvenile
Delinquency and Youth Crime, 38 (1967) 20, 25
Right to Jury Trial in Juvenile Delinquency Pr i
ALR 2d 1241 fae 15
Rubin and Shaffer, Constitutional Protections for t
nile, 44 Denver Law Journal 66 ba = os — 6
Standard Juvenile Court Act, art V, §19 (6th ed) 19
Uniform Juvenile Court Act, §24(a) (1968) 19
US Department of Health, Education, and Welfare, Children’s
Bureau, Standards for Juvenile and Family Courts 73
(1966) shtsocmialiedsn tins tee. iid 20
2 Williston, Contracts §223 (3rd Ed 1959) 10
vii
————=
In The
Supreme Court of the United States
October Term, 1970
No. 128
IN RE BARBARA BURRUS, et al.,
Petitioners
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF NORTH CAROLINA
BRIEF
FOR THE STATE OF NORTIZ CAROLINA
Respondent.
OPINIONS BELOW
The opinion of the Supreme Court of North Carolina is re-
ported at 275 NC 517, 169 SE 2d 879 (A 324-344) . The opinion
of the North Carolina Court of Appeals in In Re Burrus is
reported at 4 NC APP 523, 167 SE 2d 254 (A 303-315) ; the
opinion in In Re Shelton is reported at 5 NC APP 487, 168
SE 2d 695 (A 318-320) .
JURISDICTION
The judgment of the Supreme Court of North Carolina was
docketed on October 16, 1969 (A 345). Petitioners’ Petition
for Writ of Certiorari was filed on July 12, 1969, and granted
April 20, 1970 (A 346). This case involves the application of
the Sixth and Fourteenth Amendments to the Constitution of
the United States.
QUESTION PRESENTED
WERE PETITIONERS’ RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS VIOLATED
WHEN THEY WERE DENIED TRIAL BY JURY, on
THE ISSUE OF THEIR DELINQUENCY IN JUVENILE
COURT PROCEEDINGS WHICH COULD HAVE Rp.
SULTED IN THEIR INCARCERATION FOR PERIODS
OF FROM SIX TO TEN YEARS?
STATEMENT
This case consists of approximately forty-six cases which
arose on separate petitions charging each juvenile with one of
various wilful and unlawful acts committed on different dates
and different occasions in Hyde County, North Carolina. (A
143, 165, 189, 210, 240, 248, 255, 261, 268, 285 and 292) In
some instances, more than one petition was filed so that the
same juvenile was charged with more than one of the wilful
and unlawful acts alleged. (e.g. A2, 29) Pursuant to these
petitions, approximately forty-six juvenile summonses were
issued, one for each child and his parents or other person hay-
ing custody of the child, to appear before the judge of the
juvenile court for a hearing on the petition alleging delin-
quency. Different days for the various hearings were set and
the place for the hearings was specified. (A 54-97)
On six difffferent occasions in November and December,
1968, these juveniles (with the exception of James Lambert
Howard) were observed by State highway patrolmen standing
upon a public highway tossing a basketball back and forth
and singing, clapping, and marching. (e.g. A 147, 169, 192)
“Between September 11 and November 13 they marched prac-
tically every day.” (A195) As a result, vehicular traffic was
prevented from proceeding in either direction. The juveniles
and numerous adults were asked to remove themselves from
the road to allow traffic to pass. They either refused to do 0
or left the roadway and immediately returned. Said juveniles,
with numerous adults who were also participating in the un-
mAh a YS ee
3
lawful conduct, were then taken into custody. After ascertain-
ing the juveniles herein named to be under sixteen years of
age, the officers obtained juvenile petitions. (e.g. 145-147, 168,
170, 192)
On or about December 5, 1968, approximately sixteen per-
sons, including James Lambert Howard, were observed in the
principal's office of the O. A. Peay School at 10:30 a.m., while
school was in session, yelling, pounding objects against the
windows, moving furniture, including a metal cabinet, placing
a bed against the door, emptying papers on the floor, turning
chairs upside down, and generally littering the office with books,
papers, a roll of electrical wire, and other items of property
belonging to the school. As a result, the school closed before
noon. None of the sixteen were students or school personnel.
(A 249-253) A petition was filed against James Lambert
Howard for his part in this episode. (A 48)
At the hearings, the cases were consolidated into groups, and
the District Judge ordered the general public excluded from
the hearing room. The same counsel appeared in all cases for
the juveniles. (A 143, 165, 189, 210, 240, 248, 255, 261, 268,
285 and 292) . After the hearings, a separate, but almost ident-
ical order of custody was entered declaring each child to be a
delinquent in need of more suitable guardianship. (A 98-143,
288, 295) .
On appeal to the North Carolina Court of Appeals, the cases
were lumped into one record. The North Carolina Court of
Appeals held that, on the constitutional point which is per-
tinent to the case as it now stands, a juvenile was not entitled
to a jury trial. (A 303, 318) Petitioners thereupon appealed
to the North Carolina Supreme Court. (A 300, 316)
On appeal to the North Carolina Supreme Court, it was
made to appear that the factual situation in two additional
cases, involving juveniles Selma Shelton and John Green
Cunningham, were substantially identical to the factual situa-
ETI OT
4
tion in the case of In Re Burrus, et al, and the North Caroling
Supreme Court ordered a consolidation (A $22) and heard all
the cases as one appeal. Thereafter, the Court held, that under
the Sixth and Fourteenth Amendments to the Constitution of
the United States and Article I, §17 of the Constitution of
North Carolina, a juvenile was not entitled to a jury trial in
a juvenile court proceeding on the issue of his delinquency,
However, the Court did modify the District Court’s order by
striking its commitment provisions on the basis that the judge
exceeded his disposal authority. The probationary part of the
order was therefore affirmed. (A 323, 324) From that judg.
ment, the petitioners petitioned this Court for a writ of
certiorari.
SUMMARY AND INTRODUCTION
Although the parens patriae concept of juvenile justice has
been criticized and severely limited in its application to the
juvenile courts, still, it has residual validity. This residual
validity when applied to the adjudicatory stage embraces the
rehabilitative possibilities that arise there. One important re.
habilitative factor, which is in play at the adjudicatory hear.
ing, is confidentiality.
The juvenile court system as an institution is essential to
our society. Hence all three stages of this system should be
preserved. It is beyond question, however, that those due
process safeguards which are compatible with the system should
be integrated into it. But a ruthless application of DUNCAN
will destroy it.
Lastly, the Fourteenth Amendment should not strike down
a separate juvenile justice sysiem based upon considerations
pertinent only to children. The due process standards of the
Fourteenth Amendment vary with the subject matter and the
necessities of the situation. Thus, when the impact of juries
on the juvenile environment is analyzed in depth, it is found
that bench trials are more compatible with the juvenile court.
Indeed, it is even likely that bench trials may serve the pur-
5
poses of fundamental fairness more adequately than juries. At
any rate, an in-depth analysis reveals that jury trials are just
not necessary in this setting. And although a delinquency pro-
ceeding may in fact be comparable in seriousness to a felony
prosecution from a loss of liberty standpoint, yet there are still
legitimate differences between the two prosecutions which the
Fourteenth Amendment should reflect. Hence, juvenile due
process does not include trial by jury.
ARGUMENT
THE PETITIONERS’ RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS WERE NOT VIOLATED,
WHEN THEY WERE DENIED TRIAL BY JURY ON
THE ISSUE OF THEIR DELINQUENCY IN JUVENILE
COURT PROCEEDINGS WHICH COULD HAVE RE-
SULTED IN THEIR INCARCERATION FOR PERIODS
OF SIX TO TEN YEARS.
At common law there was a conclusive presumption that a
child under seven years of age was incapable of committing
crime—he was not capable of mens rea—and the same presump-
tion existed to the age of fourteen as to minor offenses. PEE
v US, 274 F 2d 556, 558 (D.C. Cir. 1959). Between seven and
fourteen, and as to graver crimes, there was also a presumption
against the ability to commit them; rebuttable, however, on
clear and convincing proof that the child possessed the knowl-
edge and discretion requisite for legal accountability. STATE
v BURNETT, 179 NC 735, 102 SE 711, 713 (1920). Thus at
common law, children above age seven were treated as adults.
“They were given the same legal protection and the same
punishments as adults. This system prevailed, with various
modifications, in this country until the early part of the
twentieth century. The constitutional guarantees were
equally applicable to juvenile offenders and to adults. But
then, a tidal wave of reform, put in motion by such persons
as Judge Julian Mack and the leaders of the Jane Addams
6
School, resulted in a national outcry against the resulting
barbarism, as it appeared to them to be, of treating chil.
dren and juveniles the same as adults. So, in all the juris.
dictions under the American flag, separate systems of
courts and separate sets of principles were devised {or
juveniles, usually including those up to eighteen years of
age.” Fortas, Equal Rights—for whom? 42 NY UL Rey
401 (1967) at 405-06; and In re JOHNSON, 254 Md 517,
255 A 2d 419, 421 (1969).
THE THEORY OF JUVENILE COURTS
The aim of the adult criminal process is the imposition of
stigma and pain for the purposes of punishment, deterrence,
or reformation. Paulsen, KENT v UNITED STATES: The
Constitutional Contert Of Juvenile Cases, 1966 Sup Ct Rey
167, 173-174. It may be said, therefore, that the adult criminal
system has two characteristics; the proceeding is formal by
nature, and punishment is the primary purpose. Rubin and
Shaffer, Constitutional Protections for the Juvenile, 44 Denver
Law Journal 66, 67. These qualities of a criminal prosecution
historically gave rise to special procedural protections, some
of which are in our Bill of Rights.
Now crime and punishment are not the primary business
of the juvenile court system. STATE v TURNER, (Ore) 453
P 2d 910, 913 (1969). Under this system, juvenile status
becomes a basis upon which a youthful offender can plead
diminished responsibility for his unlawful act. KEMPLEN y
MARYLAND, F Wsiz , (No. 13, 290, decided May 2,
1970, 4th Cir). Actually, juvenile court jurisdiction confers
“special rights and immunities.” Indeed, it protects the juvenile
against the consequences of an adult conviction such as loss of
his civil rights and disqualification for public employment.
KENT v US, 383 US 541, 16 L Ed 2d 84, 95, 86 S Ct 104
(1966) .
The juvenile court system is designed to be rehabilitative
—_— - oe nm COD
oT = oD
7
at its adjudicatory stage as well as at its other stages, for
rehabilitation is the juvenile court’s polar star. Hence, the
theory that underpins present juvenile court procedure is that
publicity with its attendant stigma does not deter juvenile
misbehavior but, on the contrary, interferes with the possibility
of rehabilitating the offender. It is believed, though it has never
been empirically demonstrated, that notoriety tends to scar,
rather than to scare, and handicaps a child’s prospects for
future adjustment and law-abiding behavior. Moreover, it is
thought that focusing public attention and disapproval on a
juvenile miscreant takes unfair advantage of a youngster who
still has not reached the age of complete discretion. In re
AGLER, 19 Ohio St 2d 70, 249 NE 2d 808, 810 (1969) ; and
Geis, Publicity and Juvenile Court Proceedings, 30 Rocky
Mount Law Review 101, 102.
Secrecy in the juvenile court was therefore developed as a
device to protect the young individual against exposure to the
cruelty of an aroused community while providing rehabilita-
tive measures. If the rehabilitative process was to have any
hope of success, secrecy was said to be essential. Polow, The
Juvenile Court: Effective Justice or Benevolent Despotism?,
53 AB.AJ. 31, 33.
It cannot be said that protection from stigma is not a legiti-
mate consideration, for it is elementary that our society values
a person’s good name. As a consequence, in a criminal prose-
cution the accused has at stake interests of immense impor-
tance, both because of the possibility that he may lose his
liberty upon conviction and because of the certainty that he
will be stigmatized by the conviction. In re WINSHIP, —__
Ti isscconi , 25 L Ed 2d 368, 375, ‘5c... (1970) . Hence,
its founders designed the juvenile court system to protect a
child from even the accusation of delinquency, on the theory
that the state should not damage a child’s reputation as a re-
sult of his appearance in juvenile court. As to the delinquent
child, he too was to be insulated from society’s wrath and
stigma. In re AGLER, supra.
eT dee
8
KENT v UNITED STATES recognizes these benefits of the
juvenile system: “shielded from publicity; and protected from
the stigma of criminal conviction, ete.” KENT v UNITED
STATES: The Context of Juvenile Cases, 1966 Sup Ct Rey
167. Indeed, the case itself is an illustration of some of the
beneficial aspects of the system. KENT v US, Supra, 16 L ed
2d at 84.
Although this Court has proclaimed its distrust of the pro.
tective principle, still it has not said that all policy factors
embodied in that principle are beyond its consideration.’ What
Gault did was to hold that the Fourteenth Amendment’;
standards of due process are applicable to juvenile proceedings,
However, it did not say that all of the guarantees of the Bill
of Rights need necessarily be applicable. Paulsen, Constity.
tional Domestication of the Juvenile Court, 1967 Sup Ct. Rey
233, 246. Like in KENT, specific approval was given to the
processing and treatment of juveniles separately from adults;
to classifying a juvenile offender as a delinquent rather than
charging him as a criminal; to statutory provisions providing
that the adjudication of 2 child as a delinquent shall constitute
neither a civil disability nor disqualification for civil service
appointment; to provisions intended to keep juvenile records
confidential; and to the practice of conducting proceedings in
an informal manner. In re GAULT, supra, 18 L ed 2d at 548,
544; In re JOHNSON, supra, 423.
As the Oregon Supreme Court has observed, it would have
been simple to strike down the juvenile codes, and return the
child to the criminal courts and thereby afford him the full
range of constitutional due process which accompanies a crim-
inal trial. STATE v TURNER, supra. But GAULT specifically
recognized that, despite its faults, when loosely administered,
the parens patriae concept has some residual validity, and ex-
pressly refrained from a “root and branch” extirpation of the
1. See In re GAULT, 387 US 1, 24, 18 L Ed 2d 527, 87 S Ct 1428 (1967), and
In re WINSHIP, supra, 25 L Ed 2d at 377, where the Court said that the
“claim of secrecy ... is more rhetoric than reality.”
9
separate juvenile system. Thus, there this Court did not dis-
card the juvenile system, but commanded only that it be tem-
red with certain procedural safeguards. In re GAULT, supra;
and COMMONWEALTH v JOHNSON, 211 Pa Super 62,
934 A 2d 9, 16 (1967).
Lastly, In re WINSHIP, 25 L Ed 2d 368, 372, said that
Gault
“decided that, although the Fourteenth Amendment does
not require that the hearing at this stage [adjudicatory]
conform with all the requirements of a criminal trial or
even the usual administrative proceeding, the Due Process
Clause does require application during the adjudicatory
hearing of ‘the essentials of due process and fair treat-
ment.” (Emphasis supplied) (Citations omitted)
It is obvious that the reason the United States Supreme
Court after approximately sixty-five years started to cruise
into the waters of the juvenile court is that the practice in that
court had not conformed to its theory. As to the court’s role
in these waters, there appears to be little current dissent from
the proposition that the due process clause has a role to play in
juvenile court. However, the observance of due process stan-
dards, intelligently and not ruthlessly adininistered should be
the rule. Such an application of due process standards will not
compel the states to abandon nor displace any of the substan-
tive benefits of the juvenile process. In re ESTES v HOPP,
438 P 2d 205; and In re GAULT, supra, 87 S Ct at 1440.
THE JUVENILE COURT AS A SOCIAL INSTITUTION
For a complete understanding of the impact of jury trials
on the juvenile milieu, an analysis of that court as a social
institution must be attempted. A state treats its children dif-
ferently from its adults because the state has an interest in the
well-being of its youth. Indeed, this Court, among others, has
recognized that the state has an interest “to protect the wel-
fare of children” and to see that they are “safeguarded from
- ~~ Om SE RE ETA EN
10
abuses which might prevent their ‘growth into free and ‘y.
dependent well-developed men and citizens.’ Moreover, “the
well-being of its children is of course, a subject within the
state’s constitutional power to regulate. . . .” GINSBERG y
NEW YORK, 390 US 629, 20 L Ed 2d 195, 88 S Ct 19%
(1968) , reh den, 391 US 971, 20 L Ed 2d 887, 88 S Ct Q9
“(t}he state’s eathority over children’s activities js
broader than over like actions of adults . . . A democratic
society rests, for its continuance, upon the healthy, well-
rounded growth of its young people into full maturity as
citizens, with all that that implies. It may secure this
against impeding restraints and dangers within a broad
range of selection.” PRICE vy COMMONWEALTH OF
MASS, 321 US 158, 88 L Ed 645, 64 S Ct 438 (1944),
reh den, 321 US 804, 88 L Ed 1090, 64 S Ct 784.
Thus, in this case, it is not only the possible loss of liberty and
freedom from stigma interests of the child, but the interests of
society in the child and the interests of society in its own
safety and future which hang in the balance.
Historically, putting aside for the moment the criminal law
or even the law of guardianship, protection of children from
their immaturity is net a late nineteenth century or even a
twentieth century phenomenon. At common law, an infant's
contracts except for necessities were voidable. There a person
was classified an infant until attaining the age of twenty-one.
42 AM JUR 2d, Infants, §3; 43 CJS, Infants, §2; 2 Williston,
Contracts, §223 (Srd ed 1959); Coke on Littleton, 13th ed
(1788) , p 172; and PERSONNEL CORP v ROGERS, 276 NC
279, 172 SE 2d 19 (1970). Wasn't this voidability of contracts
rule for the purpose of protecting a child from the conse-
quences of his own immaturity?
So, children—yesterday, today, and hopefully tomorrow—
are not sui juris, and are both legally and as a practical matter,
unable to take responsibility for their decisions. Moreover, the
parents or guardian do not always represent the child’s best
interests an
supra, 8138. |
constant int
Mr. Justi
District of €
to have said
to our socie'
structive thi
hood. There
court must |
the act of w
ness. Ketche
bia Juvenile
The Nort]
trict Court |
linquent chi’
978(1); GS
criminal ma’
for the trial
troversy is |
exclusive, or
including m
felony. GS 7
A delingt
criminal offe
ll
; and are sometimes adverse thereto. In re AGLER,
13. Hence, as a practical matter, only the state has a
| interest in forwarding a child’s best interest.
ustice Fortas capsule] the idea, when addressing the
of Columbia Juvenile Practice Institute, he is reported
said that the juvenile court as an institution is essential
ociety, for he was not sure that there was much con-
» that could be done with offenders who are past child-
here is thus a nonjudicial function that the juvenile
ust perform; but finding out whether a child committed
of which he is accused must be accomplished with fair-
tcham and Paulsen, Address to the District of Colum-
nile Practice Institute, 6 Cr L 2173.
‘orth Carolina Statutory scheme provides that the Dis-
urt shall have exclusive, original jurisdiction over de-
children under the age of sixteen. GS 7A-277; GS 7A-
GS 7A-279.* It also has jurisdiction of civil as well as
matters. It was then, as well as now, the proper court
trial of all civil actions in which the amount in con-
is $5,000 or less. GS 7A-243. It had then, as now,
*, original jurisdiction for the trial of criminal actions,
g municipal ordinance violations, below the grade of
3S 7A-272.
inquent child is any child who has committed any
offense under state law or under an ordinance of local
sarolina has just undergone a reorganization of its court system.
his case arose, the District Court, a new addition to the trial
= :
\ , Legislature
transferred these provisions to Chapter 7A of the General
s, effective 1, 1970. Session Laws of 1969, c 911, s11. The
ounded
— —
—
12
government, including violation of motor vehicle laws, or q
child who has violated his probation condition.’ GS 74-978 (8).
When a child of fourteen has committed an offense which
constitutes a felony, the judge may, after a probable cause
hearing and findings that the needs of the child or the bes
interests of the state will be served, transfer the case to the
Superior Court for trial as in the case of adults. If the alleged
felony is a capital offense, after finding probable cause, the
case must be transferred to the Superior Court for trial as an
adult. GS 7A-280; and GS 110-29 (6). A case is commenced by
petition and service of summons and petition on the interested
parties. GS 7A-281; GS 7A-282; GS 7A-283; GS 110-95; and
GS 110-28.
The hearing is to be a simple judicial process designed to
adjudicate the issue of delinquency and the judge shall find
the facts. A written record of the hearing is maintained. The
court is to protect a party's right of written notice, to counsel,
to cross examine witnesses, and his privilege of self-incrimina-
tion. Also a party has the right to introduce evidence.t GS
7A-285.
Juvenile hearings are held at such times and places as the
chief district judge’ shall designate, and at the court's dis-
cretion the general public may be excluded from the hearing.
GS 7A-285. At the conclu.ion of the adjudicatory part of the
3. GS GS 110-21(1) defined a delinquent child as one who violated any munici-
pal or State law or ordinance, and GS 110-21.1 gave the court jurisdic-
tion over violations of the motor vehicle laws.
4. GS 110-29 provided for a summary hearing.
more judgeships, GS 7A-147 allows specialized judgesh This
true when the case arose. Hence, the District Court is a trial
general jurisdiction which allows some judgeship specialization
ers’ sketch of the system as applicable to this case is, therefore, some-
what inaccurate regards judgeship specialization.
+
18
hearing, the court may proceed to the dispositional part of the
hearing which may be informal. In all cases the court’s order
shall be in writing and shall contain appropriate findings of
fact. G’ TA-285. Any child or his representative may appeal
from a District Court adjudication to the North Carolina Court
of Appeals. GS TA-289; and GS 7A-35.
Now where the court finds that a child should be detained
in secure custody for the community's protection or in the
best interests of the child, before or after a hearing on the
merits, the child may be detained in a juvenile detention home
or, if no home is available, in a separate part of the local jail
which meets the standards of a home. The child cannot be held
there more than five days without a hearing on the merits, and
after such hearing, only in accordance with a written court
order.” GS 7A-286 (3); and GS 110-30.
After a delinquency adjudication, in appropriate cases, the
judge may commit the child to the care of the North Carolina
Board of Juvenile Correction. The commitment is to be for an
indefinite term, but not beyond the eighteenth birthday of the
child as the Board or its administrative personnel may find to
be in the child's best interest. However, if the child is engaged
in a vocational training program when he becomes eighteen,
the Board may extend the indefinite term beyond the eigh-
teenth birthday until the training program is complete.* GS
7A-286 (4) (c).
In the adjudicatory stage, if no parent appears with a child,
or where the court finds it is in the child’s best interests, the
court may appoint a guardian of the person who shall continue
during the minority of the child. GS 7A-286 (6) ; and GS 110-37.
Lastly, juvenile records are not open to public inspection, and
may be examined only by order of the judge except where the
6. No such provisions appeared in GS 110-29.
7. GS 110-30 is not so elaborate, providing only for a separate lockup.
8. GS 110-29(4) provided only for commitment to a suitable institution.
14
child, his parents, guardian, custodian and attorney, or other
authorized representative of the child shall have a right to
examine the child’s juvenile record. Moreover, an adjudica-
tion of delinquency will not disqualify the child from public
office nor be considered as a conviction of any criminal of.
fense. GS 7A-287; and GS 110-24.
SPECIFIC CONTENTION OF THE STATE OF
NORTH CAROLINA
The State of North Carolina respectfully contends that the
above-outlined statutory schemes adequately promote reli-
able fact finding. believe that a fair fact-finding procedure jn
juvenile court is necessary, but we do not believe that the
rehabilitative goals of the juvenile system should be com-
promised in the process. Indeed, constitutional rights need
not always be given effect through the same mechanisms
which are employed in the criminal courts. We believe the
alternative procedure of a bench trial which furthers the
rehabilitative goals of the system is justified and constitu-
tional—assuring due process and fundamental fairness in this
setting. We believe that the institution of the juvenile court
and the individual rights of the juvenile are both so impor-
tant, that only by this Court's holding juvenile bench trials
constitutional can a reasonable reconciliation of the two in-
terests be reached. This we will now attempt to demonstrate,
THE FOURTEENTH AMENDMENT
DUNCAN v LOUISIANA, 391 US 145, 20 L Ed 2d 491
88 S Ct 1444 (1968), reh. der 792 US 947, 20 L Ed 2d 1412,
88 S Ct 2270, held that the « process clause of the Four-
teenth Amendment guarantees a right to a jury trial in all
non-petty criminal cases. BALDWIN v NEW YORK, 38
Law Week 4554 (1970), held that a potential sentence in
excess of six months takes an offense out of the petty cate-
gory. Hence, a broad reading of the term “criminal” would
make DUNCAN applicable to the juvenile setting. However,
—
15
it is universally heid that delinquency proceedings in juvenile
court are not criminal. PEE v US, supra, 561. Moreover,
most jurisdictions hold that in the absence of a statute which
provides for jury trial, an individual charged with being a
delinquent has no right under the pertinent state or federal
Constitution to demand a jury trial, for most jurisdictions
hold that trial by jury applies only to the trial of a criminal
action, penal in nature. This is especially so where the in-
vestigation is into the status and needs of the child and is
aimed at the rehabilitation and restoration of the offender
to useful citizenship.”
In GAULT, the Court refused to characterize the proceed-
ings as either civil or criminal. The first footnote in WINSHIP
said that opinion did not rest on the assumption that all
juvenile proceedings were criminal prosecutions. In re WIN-
SHIP, supra, 25 L Ed 2d 372. To hold juvenile court cases
criminal would only trade the “civil” label of convenience,
criticized in GAULT, for a similar “criminal” label in talis-
manic substitution of reason.’® The very purpose of the juvenile
code is to avoid treatment of youngsters as criminals and to in-
sulate them from the reputation and answerability of criminals.
In re AGLER, supra, 814.
9. See the Marshalling of Authorities on this point in Anno: Right To Jury
Trial In Juvenile Court Delinquency Proceedings, 100 ALR 2d 1241.
10. If juvenile proceedings are labeled “criminal” for purposes of jury trial
and DUNCAN ruthlessly applied, strange results may follow. For ex-
ample, in North Carolina, our Constitution denies an accused the privi-
lege of jury waiver. N. C. Const. Art. I, $13; and STATE v HOLT, 90 NC
749 (1884). Some state courts rule that in the absence of a statute there
can be no waiver of jury trial. See, eg., WILSON v STATE, 16 Ark 601
(1885); STATE v MAINE, 27 Conn 281 (1858); PEOPLE v SMITH, 9
Mich 193 (1861). Other states hold that the waiver of jury trials can be
prohibited by statute. See, eg., ARNOLD v NEBRASKA, 38 Neb 1752, 57
NW 378 (1894); In re McQUOWN, 19 Okla 347, 91 P 689 (1907); STATE
vy BATTEY, 32 R.I. 475, 80 A 10 (1911); STATE v HIRSCH, 91 Vt 330,
100 A 877 (1917); MAYS v. COMMONWEALTH, 82 Va 550 (1886). Many
courts hold that waiver is permissible, even in the absence of enabling
legislation. See, e.g., State ex rel WARNER v BAER, 103 Ohio St 585
(1921); Ex Parte KING, 42 Okla Cr 46, 274 P 682 (Okla Crim App 1929).
Of course, this Court has held that a state statute permitting waiver
of a jury trial in criminal cases does not violate the Due Process Clause
of the i4th Amendment. HOLLINGER v DAVIS, 146 US 413, 36 L Ed
986, 13 S Ct 105 (1892); and see SINGER v US, 380 US 24, 13 L Ed 2d
630, 636, 85 S Ct 783 (1965).
ee
16
Hence, the consideration becomes in what manner does dye
process affect juvenile courts. The answer appears in KENT
and GAULT.
“We do not mean . . . to indicate that the hearing to
be held must conform \ith all of the requirements of q
criminal trial or even of the usual administrative hearing;
but we do hold that the hearing must measure up to the
essentials of due process and fair treatment.” (Emphasis
supplied) KENT v US, supra, 16 L Ed 2d at 97; and In
re GAULT, supra, 18 L Ed 2d 548.
Thus, the constitutional safeguards vouchsafed a juvenile
in such proceedings should be determined from the require-
ments of due process and fair treatment, and not by a strict
application of the clauses of the Constitution, which in terms
apply to criminal cases. PEE v US, supra, and BIBLE y
STATE, (Ind) 254 NE 2d 319 (1970) . This is in accord with
Mr. Justice Holmes, who writing in MOYER vy PEABODY,
212 US 78, 53 L Ed 410, 29 S Ct 235 (1909) , said:
“But it is familiar that what is due process of law depends
on circumstances. It varies with the subject matter and
the necessities of the situation. Thus, summary proceed-
ings suffice for taxes, and executive decisions for exclu-
sion from the country.”
In summary, a specific constitutional provision may not be
fundamental to a fair trial under all circumstances. Due
process of law is a standard which a specific constitutional
provision may, depending upon the circumstances, add to, be
a part of, or define. In re WINSHIP, supra, 25 L Ed 2d at 380
(concurring opinion); and MURRAY’S LESSEE y HO-
BOKEN LAND AND IMPROV CO, 18 How 272, 15 L Ed
372 (1855).
In military tribunals, jury trials are not required. WHEL-
CHEL v McDONALD, 340 US 122, 127, 95 L Ed 141, 145,
71 S Ct 146 (1950) (dictum), reh den 340 US 923, 95 L Ed
17
666, 71 S Ct 356; and KAHN v ANDERSON, 255 US 1, 8, 9,
65 L Ed 469, 474, 475, 41 S Ct. 224 (1921). Likewise, there it
is held “{djue process of law means that every person brought
to justice before a military court martial or commission is
entitled to a fair trial, characterized by procedures that are all
consistent with our notions of fundamental fairness.” US v
McMAHON, 6 USCMA 709, 723, 21 CMR 31 (1956). Addi-
tionally, one need look no further than equity jurisdiction to
determine that trial by jury, guaranteed by the federal and
most state constitutions, is not an essential element of due
process in all adjudicatory proceedings. It is beyond cavil that
an equity decree can be intensively coercive. In re AGLER,
supra, 814.
Moreover, the mere fact that a proceeding may result in
the deprivation of liberty should not in and of itself compel
the conclusion that the proceeding is criminal in nature or
like unto criminal proceedings for the purposes of the Sixth
Amendment right to jury trial. Under federal law, after only
a court hearing, individuals charged with the commission of
a crime can be placed in the custody of the Attorney General
until found mentally competent to stand trial. GREENWOOD
v US, 350 US 366, 100 L Ed 412, 76 S Ct 410 (1956). And
although certain state proceedings akin to lunacy proceedings,
which result in the deprivation of liberty without the proce-
dural safeguards have been found constitutional [MINN ex
rel PEARSON v PROBATE COURT, 309 US 270, 84 L Ed
746, 60 S Ct 523 (1940) } still there is no definite ruling at
this time that the due process clause requires juries in either
federal or state involuntary commitment proceedings for men-
tal illness or alcoholism. BARRY v HALL, 68 App DC 350,
98 F 2d 222 (1938).
The pivotal question is then: which rules of fairness and
basic procedural rights are necessary for due process and
fundamental fairness in the juvenile setting? The framing of
the question in this manner calls forth a selective due process
18
standard applicable only to juvenile proceedings. Such a stand.
ard allows the extrapolation from KENT, GAULT, and WI.
SHIP, that jury trials are not necessary for due process and
fair treatment in juvenile courts.
The equal protection clause should not invalidate a juvenile
court system founded upon bench trials. What this clause ap-
pears to require is that any classification of “persons” shall he
reasonably relevant to some recognized purpose of good go-
vernment. “A statute does not violate the equal protection
clause merely because it is not all-embracing . . . And it is not
open to objection unless the classification is so lacking in any
adequate or reasonable basis as to preclude the assumption
that it was made in the exercise of the legislative judgment
and discretion.” WHITNEY v CALIFORNIA, 247 US 357,
71 L Ed 1095, 1103, 47 S Ct 641 (1927). Moreover, one who
assails a classification must carry the burden of showing that
it does not rest upon any reasonable basis, but is essentially
arbitrary. WHITNEY v CALIFORNIA, supra. Thus, the
Equal Protection Clause doe not require absolute equality,
BREEDLOVE v SUTTLES, 302 US 977, 82 L Ed 252, 58 §
Ct 205 (1937). But when a law is passed pursuant to a valid
state interest the law will be upheld only if it is necessary
and not merely rationally related to the accomplishment of
a permissible state policy. McLAUGHLIN v FLORIDA, 379
US 184, 13 L Ed 2d 222, 231, 85 S Ct 283 (1964).
Since it is indisputable that there are legitimate differences
between the needs of juveniles and those of adults which
should be recognized, the Fourteenth Amendment’s applica-
tion to juvenile hearings should thus reflect these differences.
PRESENT DAY LEGAL AUTHORITIES
A majority of the jurisdictions which have reviewed this
question since KENT or GAULT support the view that jury
trials are not necessary in the juvenile setting. The cases are:
COMMONWEALTH v JOHNSON, 211 Pa Super 62, 234 A
me 8 4 E-
19
ad 9 (1967); DRYDEN v COMMONWEALTH, 435 SW 2d
457 (Ct App, Ky) (1968); PEOPLE v “Y.O. 2404,” 57 Misc
ad 30, 291 NYS 2d 510 (1968): PEOPLE v ANONYMOUS,
56 Misc 2d 725, 289 NYS 2d 782 (1968); In re ESTES v
HOPP, 73 Wash 2d 263, 438 P 2d 205 (1968); PEOPLE v K,
58 Misc 2d 526, 296 NYS 2d 404 (1968); In re JOHNSON,
054 Md 517, 255 A 2d 419 (1969); In re STATE OF N. J.
in the interest Be nae NJ Super 129, 254 A 2d 334
(1969) ; In re , 4 NC APP 523, 167 SE 2d 254; and
975 NC 517, 169 SE 2d 879 (1969); STATE v TURNER,
(Ore) 453 P 2d 910 (1969); In re ALGER, 19 Ohio St 2d
70, 249 NE 2d 808 (1969); BIBLE v STATE, (Ind) 254 NE
ad 319 (1970); In re TERRY, (Pa) 265 A 2d 350 (1970);
and In re FUCINI, (Ill) 255 NE 2d 380 (1970).
A smaller body of case law holds that in the light of GAULT
a juvenile is entitled to trial by jury. PEYTON v NORD, 78
NM 717, 487 P 2d 716 (1968); DeBACKER v BRAINARD,
183 Nev 461, 161 NW 2d 508 (1968); NIEVES v US, 280 F
Supp 994 (S.D.N.Y.) (1968); SAUNDERS v LUPIANO, 30
AD 2d 803, 292 NYS 2d 44 (1968) ; and PEOPLE v DAY, 61
Mise 2d 786, 306 NYS 2d 610 (1969)
Eleven jurisdictions provide some form of jury trial by
statute. They are: Colo Rev Stat Ann §37-8-3 (1964); DC
Code Encyclopedia §16-2307 (1961); Kan Gen Stat Ann
§38-808 (Supp 1967); Mich Comp Laws Ann Ch 712 A 17
(1968); Mont Rev Codes Ann §10-604.1 (Supp 1969); Okla
Stat Ann Tit 10, $1110 (Supp 1968); SD Comp Laws Ann
96-8-31 (1967); Tex Rev Civ Stat Ann, art 2338-1, §13(b)
(Vernon Supp 1968); W Va Code Ann §49-5-6 (1966); Wis
Stat Ann §48.25 (2) (1957); and Wyo Stat Ann §14-108 (c)
(1961) .
Other miscellaneous authorities which have taken the posi-
tion that jury trials in juvenile proceedings are not neces-
sary or desirable are: Standard Juvenile Court Act, art v,
§19 (6th ed); Uniform Juvenile Court Act, §24(a) (1968) ;
RNR IO TI CL
——
20
US Dept of Health, Education, and Welfare, Children’s Bureay
Standards for Juvenile and Family Courts 73 (1966) ; and The
President’s Commission on Law Enforcement and Admini-
stration of Justice, Task Force Report: Juvenile Delinquency
and Youth Crime, 38 (1967).
FUNDAMENTAL FAIRNESS
A balancing of equities should reveal what is fundamental
fairness in the juvenile setting. A proper balancing should
combine the best aspects of the juvenile and criminal proce-
dures into an amalgam which will offer the juvenile the best
of both worlds. Only through such a weighing, where the
necessity and appropriateness of each constitutional proce-
dural safeguard is weighed, can the introduction of safeguards
into the juvenile milieu be reconciled with the original ration-
ale for the independence of the juvenile court.
Constitutionally this approach is sound because balancing,
has in the past, played a part in the application of the due
process clause:
“Decisions of this Court concerning the application of the
Due Process Clause reveal the necessary process of balance.
ing relevant and conflicting factors in the judicial applica-
tion of that clause . . . Decisions under the Due Process
Clause require close and perceptive inquiry into funda-
mental principles of our society. The Anglo-American
system of law is based not upon transcendental revela-
tion but upon the conscience of society ascertained as
best it may be by a tribunal disciplined for the task and
environed by the best safeguards for disinterestedness
and detachment.” BARTKUS v ILLINOIS, 359 US 121,
3 L Ed 2d 684, 79 S Ct 676, 689-690 (1959).
A ruthless application of DUNCAN and BLOOM v ILLI.
NOIS, 391 US 194, 20 L Ed 2d 522, 88 S Ct 1477 (1968),
as contended for by the petitioners would exclude the “neces-
sary process of balancing relevant and conflicting factors.”
21
GARRITY v NEW JERSEY, 385 US 493, 17 L Ed 2d 562,
97S Ct 616 (1967), and GRIFFIN v CALIFORNIA, 380 US
409, 14 L Ed 2d 106, 85 S Ct 1229 (1965), reh den 381 US
957, 14 L Ed 2d 730, 85 S Ct 1797, are said to lay a balanc-
ing approach to due process to rest. NIEVES v US, 280 F
Supp 994, 1002 (1968). However, those cases deal with the
Fifth Amendment’s self-incrimination provision, as applied to
criminal trials. In contrast, Juvenile Cases are not strictly
criminal, and an absolute application of all Bill of Rights’
provisions are therefore not necessary. PEE v US, supra. Re-
member “. . . What is due process of law depends on cir-
cumstances.” MOYER v PEABODY, supra.
Indeed, doesn’t GAULT illustrate the proposition that,
in this setting, each constitutional safeguard should be ex-
amined to determine if in its absence arbitrary governmental
power is possible. It appears, therefore, that as to children,
certain constitutional rights are necessary to preserve a mini-
mum degree of procedural fairness, while others are necessary
only in varying degrees, or not at all. In re GAULT, supra,
18 L ed 2d 527.
What then is to be balanced? In our constitutional universe,
liberty is the rule and restraint the exception. ADKINS v
CHILDREN’S HOSP, 261 US 525, 526, 67 L Ed 525, 43 S Ct
394 (1923). Such a maxim demands that special justification
be adduced in support of any inroad upon freedom of action.
Under the rule of balancing, the court, therefore, balances the
apparent detriments of the statute from the point of view
of liberty against the anticipated benefit from the point of
view of public policy.
“The very nature of due process negates any concept of
inflexible procedures universally applicable to every ima-
ginable situation . . . ‘[D]ue process, unlike some legal
rules, is not a technical conception with a fixed content
unrelated to time, place, and circumstances.’ It is ‘com-
22
pounded of history, reason, the past course of deci.
sions .. .’ JOINT ANTI-FASCIST REFUGER COM.
MITTEE v McGRATH, 3841 US 123, 162, 163, 95 L Ed
817, 848, 849, 71 S Ct 624 (Concurring opinion) .
“As these and other cases make clear, consideration of
what procedures due process may require under any given
set of circumstances begin with the determination of the
precise nature of the governmental function involved as
well as of the private interest that has been affected by
governmental action.” CAFETERIA WORKERS y Me.
ELROY, 367 US 886, 6 L ed 2d 1230, 1236, 81 S Ct 1748
(1961).
Hence, it is this respondent’s position that the constitu-
tional balance of social convenience is expressed in this legis-
lation which denies juveniles jury trials. An analysis of jury
and bench trials will develop and illustrate the soundness
of this contention.
JURY TRIALS
A jury’s function may be expressed in two ways: (1) Asa
guarantor of accuracy in fact finding; and (2) as a political
institution which provides the individual a degree of protec.
tion against the legislative will and the prosecutor’s disere-
tion. “A right to jury trial is granted to criminal defendants
in order to prevent oppression by the government . . . Pro-
viding an accused with the right to be tried by a jury of his
peers gave him an inestimable safeguard against the corrupt
or over-zealous prosecutor and against the compliant, biased,
or eccentric judge.” DUNCAN v LOUISIANA, supra, 20 L
Ed 2d at 499, 500.
Thus, a jury trial provides the accused with a weapon
against political crimes repressive of civil liberties, a weapon
juveniles do not generally need. Furthermore, it provides the
accused with some protection against punishment which is
greater than the community, speaking through the jury, thinks
oe. a ee
2a na fé
23
warranted in a given case.'’ The adjudicatory stage of the ju-
yenile court is not concerned with punishment, but with
establishing that a basis exists for the use of state power to
care for the child. Paulsen, Fairness To The Juvenile Offender,
41 Minn L Rev 547 (1957).
In the final analysis, therefore, it should be the jury’s
capability as a fact finder which recommends it and not some
collateral benefit from its presence. The reason for this is that
‘ ... the principal original virtue of the jury trial—the
limitations a jury imposes on a tyrannous judiciary—has
largely disappeared. We no longer live in a medieval or
colonial society. Judges enforce laws enacted by demo-
cratic decision, not by regal fiat. They are elected by
the people or appointed by the people’s elected offici-
als, and are responsible not to a distant monarch alone
but to reviewing courts, including this one.” DUNCAN
vy LOUISIANA, supra, 20 L Ed 2d at 518 (dissenting
opinion) .
Certainly, one cannot regard the jury as a better, fairer,
more accurate fact finder than a competent and conscientious
judge. There may be some judges who do not fit this des-
cripiion, but neither do all juries. DRYDEN v COMMON-
WEALTH, 435 SW 2d 457 (Ct of App, Ky 1968). Moreover,
BRUTON v US, 391 US 123, 20 L Ed 2d 476, 88 S Ct 1620
(1968), is convincing proof that juries cannnot always be
trusted. Even DUNCAN acknowledges that trial by jury is
not always necessary to insure an impartial trier of fact. DUN-
CAN v LOUISIANA, supra. Lastly, the right to jury trial is
not one of the elements of criminal due process which re-
formers have pursued adamantly, probably because it does
ll. Mr. Justice Fortas is reported to have said that in juvenile cases there
should be no confinement if there is any alternative whatever in a par-
ticular case. This, he says, solves the “hocus pocus” of confinement as
treatment. Ketcham & Paulsen, Address to the District of Columbia
Juvenile Practice Institute, 6 Cr L 2173. Clearly, if it is found that judges
are adequate due process fact finders, then the possible confinement
consideration is not pertinent to the question under debate.
24
not appear to have any significant correlation to a Correct
determination of the facts. Ketcham, The Unfilled Promise
of the American Juvenile Court, Justice For The Child 28
(Rosenheim ed 1962) .
Thus, the only thing that can be said is that as applied
to juveniles the frequency of difference in decision between
a judge and a jury would be relatively insignificant.” There
is now all the more reason to question whether a jury trial js
the most trustworthy instrumentality for protecting the rights
of the child, his parents, and the state in a proceeding intended
to salvage a child if he is in need of governmental control
STATE v TURNER, 453 P 2d 910, 913.
Moreover, other more important procedural safeguards as.
sure that a miscarriage of justice will not occur. A lawyer
pronvstes effective fact finding. In re GAULT, supra. The
reasonable-doubt standard of proof test is a check superior to
all others in protecting against an unjust determination of
the facts. In re WINSHIP, supra. The compiling of a record,
the use of objections and exceptions, written findings of fact
and conclusions of law, and the right to appeal, etc.—in
general the adversary system—all operate as checks against
the judge. Likewise, dismissal, etc. at the intake stage, the
right to confront opposing witnesses, including the right of
cross examination, the right to have the use of compulsory
process in obtaining favorable witnesses, the right of counsel,
the right against self-incrimination or the exclusionary rules
of evidence, the accused's right to be heard, and the restraints
which operate against the judge, all serve as checks on the
prosecution.
Finally, delinquency is divided into neither grades nor de
grees. Regardless of the nature of the act committed by a
child, he comes within the court’s jurisdiction. For exampie,
if the delinquency alleged is homicide, there is no scope or
12. For a short analysis of judge-jury disagreement, see Kalven and Zeisel,
The American Jury, 55-65 (1966).
— _ooeoFtlUMWWUlUMDUEElCUO
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25
cause to decide whether it constitutes first degree murder,
second degree murder, or manslaughter. In any event, it is
delinquency if the act was committed. The point is that in
this environment there just is no need for a sophisticated fact
finder. George, Juvenile Delinquency Proceedings: The Due
Process Model, 40 U Colo Law Review 315, 327.
Although a jury trial would cause the trial to be open, and
open trials generally operate as a check upon arbitrary court
action, still the advantage would be purchased at the expense
of punishing the juvenile through publicity. “In many cases
publicity tends itself to constitute a form of punishment, and
when it does not, it serves only to provide a deeply troubled
youngster an opportunity to flaunt his unregeneracy.” The
President’s Commission On Law Enforcement And Administra-
tion Of Justice, Task Force Report: Juvenile Delinquency
And Youth Crime, 38. Thus, any lack of confidentiality in-
creases the likelihood of permanent stigma, reducing the ef-
fectiveness of any treatment administered.
A breach of confidentiality of juvenile trials would not only
harm the child, but his family as well. Hence, jury trials in
juvenile court should be outweighed by the resultant stigma
which handicaps the rehabilitative possibilities. Lest one thinks
that stigma as a factor in the equation against juries can be
minimized, just how is the judge to control the post adjudica-
tory speech of jurors. It should, also, be pointed out that
studies reveal that the stigma which attaches to the label
“delinquent” applies to the dependent and neglected child
alike, i.e., to all who come in contact with the juvenile court.
California Governor’s Special Study Comm'n. on Juvenile
Justice Report, pts 1, 11 1960 pp 19-20; and Paulsen, The
Delinquency, Neglect and Dependency Jurisdiction of the
Juvenile Court, Justice For The Child, 45-46 (Rosenheim
ed 1962). This revelation portrays the irrationality of public
reaction to juvenile court adjudications. If a child is to be
protected from such irrational repercussions, he must be pro-
tected from a jury.
In the juvenile setting, to require juries would increag
the formality of the court. As Dean Paulsen has said: “A jury
trial would inevitably bring a good deal more iormality to
the juvenile court without giving a youngster a demonstra.
tively better fact-finding process than trial before a judge.”
Paulsen, Fairness To The Juvenile Offender, 41 Minn L Rey
547, 559 (1957).
Another problem juries present is that of uniformity in the
court. Delinquency other than when a delinquent is charged
with some specific criminal act may involve rather ill-defined
notions of waywardness and unmanageability (e.g., D.C. Code
Encyclopedia, §11-1551), and the maintenance of some sem.
blance of uniform standards among them dictates trial before
a jury. In some jurisdictions, for either category of delinquency
the juvenile may be committed to an institution. If the jury
is applicable to one category, it should be to the others as
well, at least insofar as rights are responsive to potential state
infringement on the accused’s freedom. DRYDEN v COM.
MONWEALTH, supra.
One of the major problems in treating delinquency today
is the so-called “generation gap” between the adults who ad-
minister the juvenile justice machinery and the juveniles who
are its material.
“Only 2 juvenile jury could adequately serve the fune-
tion of piercing the juvenile front on the one hand and
of applying contemporary youthful standards to alleged
delinquent conduct on the other. The lay adult judgment
is likely to be generally harsher and less understanding
than the judgment of adult professionals who have at
least some undersanding of the juvenile milieu.” George,
Juvenile Delinquency Proceedings: The Due Process
Model, 40 U Colo Law Review 315, $27.
Thus, jury trials may even impair the fairness of a hearing,
because juries may harbor more prejudice toward juveniles
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27
than toward adults. In light of the “generation gap,” adult
jurors’* may feel the need to punish rather than to follow the
notion of rehabilitation.
Again, the initiation of a jury into the juvenile setting would
greatly increase administrative problems, e.g., the selection of
and paying of jurors.
“The jury system can also be said to have some in-
herent defects . . . It is a cumbersome process, not only
imposing great cost in time and money on both the state
and the jurors themselves, but also contributing to delay
in the machinery of justice.” DUNCAN v LOUISIANA,
supra, 206 L Ed 2d at 518 (dissenting opinion) .
In increasing administrative problems, it would hinder the
function of this particuler court. It would probably overburden
crowded court calendars and prevent a speedy trial. The
speed, convenience, and flexibili y of the juvenile system would
be disminished.’* Ja summary, a jury would thus greatly in-
crease administretive and eccaomic problems, lessen the ef-
fectivenes of the court, anc not particularly enhance pro-
cedural fairness. BIBLE v STATE, supra.
THE CONSEQUENWES OF JURY TRIALS
Hence, to afford juveniles the protection of a jury trial
“would risk destruction of beneficial aspects of the juvenile
process.” In re WINSHIP, supra, 20 L Ed 2d at 376. It would
mean a retrogression to the ordinary criminal trial. In re
GAULT, 387 US at 75 (dissenting opinion) .
13. Since the jury panel must represent the community at large, most
jurors, under whatever system they are picked, would probably be adults.
GLASSER v US, 315 US 60, 86 L Ed 680, 62 S Ct 457 (1942).
14. Speed, convenience, and flexibility may by themselves be entitled to no
weight in the calculus of this Court's past decisions. BALDWIN v NY,
supra; FAY v NOIA, 372 US 391, 9 L Ed 2d 837, 83 S Ct 822; and
GIDEON v WAINWRIGHT, 372 US 335, 9 L Ed 2d 799, S. Ct 792
(1963). But, when grouped with the other factors herein discussed, they
my —— aggregate, entitled to some weight. In re WINSHIP, 25 L Ed
at ‘
28
. » + (T)here is no automatic congruence between the
procedural requirements imposed by the process in a
criminal case, and those imposed by due process in juve.
nile cases. It is of great importance, . . . that procedural
strictures not be constitutionally imposed that Jeopardize
‘the essential elements of the state’s purpose’ in creat}
juvenile courts.”
Jury trials may not interfere with the worthy goal of rm
habilitating the juvenile, but they will make a significant
difference in the extent to which a juvenile is stigmatized
as a “criminal” because he has been found to be a delinquent,
and burden the juvenile courts with a procedural requirement
which will make juvenile adjudiction significantly more time
consuming or rigid. In re WINSHIP, supra, 20 L Ed 2d at
381 (concurring opinion) .
Moreover, . . . “if the adjudication of ‘delinquency’ must
be by a jury with all the procedures of a criminal trial,
then certainly many of the immunities granted to minors
will have been abolished. Among these, one considered
most essential to the welfare of the child and in the in.
terest of society, is that of secrecy. There can be no
secrecy with the jury trial. It is obvious . . . that if
there must be a fact-finding determination of delinquency
by a jury, the first step has been taken in abolishing the
difference in concept of treatment between juveniles and
adults.” PEYTON v NORD, 78 NM 717, 487 P 9d 716,
727 (1968) (concurring and dissenting opinion) .
The respondent does not believe this Court will condone
such a result, for in WINSHIP it said that the infusion of the
reasonable doubt standard would not “compel the states to
abandon or displace any of the substantive benefits of the
juvenile process.” In re WINSHIP, supra.
Hence, this respondent respectfully urges this Court to hold
that a juvenile is to be afforded the benefit of an informal hear-
ing at which rules of fairness and basic procedural rights are
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observed, and that on balance bench trials are more consistent
with the premises of the proceedings. In re AGLER, supra.
BENCH TRIALS
The State of North Carolina does not contend that a juve-
nile does not have a right to a judge who has no interest in the
case, and who has not been prejudiced by earlier events. In re
\MURCHISON, 349 US 133, 99 L Ed 942, 75 S Ct 623 (1955) .
The adult system of criminal trials is arranged so that those
who pass upon preliminary matters rarely make the final ad-
judication as well. Due process, therefore, may demand that
the trier of fact should not be acquainted with any of the
facts of the case or have knowledge of any of the circumstances,
either through officials in his own department or records in his
possession. Matter of REIS, 7 Cr L 2151 (4-14-70, R.I. Fam
Ct.). The State of North Carolina contends that any problems
this aspect of due process may present can be solved by some
sort of bifurcated hearing without requiring a jury’s inter-
vention. This aspect of juvenile bench trials should present no
real problem.
In regards to the fundamental fairness of a bench trial, re-
call that DUNCAN specifically states that it does not question
the fairness of trial by judge where a jury is waived. It follows
then that when the constitutional right to a jury is waived
in criminal proceedings, the procedure which remains must it-
self be fair. There must therefore be some degree of fairness
in trial by a judge. Hence, without proof of judicial partiality,
it is this respondent’s position that it should not be assumed
that bench trials are unfair, or that they do not measure up to
the essentials of due process in the juvenile setting. It thus
seems wrong to assume that a child cannot receive a fair trial
before a juvenile court judge.
The respondent would like to make one other point clear.
In GAULT, this Court saw fit to break a juvenile proceeding
down into three separate stages, the intake stage, the adjudica-
tory stage, and the dispositional stage. Now, post-adjudicatory
—_
30
exposure is ar altogether distinguishable problem from adjugj.
catory exposure and should not be used as a justification fo
striking down adjudicatory confidentiality. We do not believe
that this suit should be used as a vehicle for striking down
adjudicatory confidentiality, because of the pre or post-hearing
abuses in t
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