Amicus Curiae Brief — In re Burrus

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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

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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 ——

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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

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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,

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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

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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

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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.

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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.

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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

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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.

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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)

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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

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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

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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

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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).

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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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