# Amicus Curiae Brief — In re Burrus > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0313%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 813 ## Text (i) TABLE OF CONTENTS Page INTRODUCTORY STATEMENT .......---++--++ee55: 1 THE INTEREST OF THE AMICUS AND ITS POSITION ON THE QUESTIONS PRESENTED .........---+-+5: 2 A. Interest of the Amicus... 0... 0.0 eee eee 2 B. The Council's Position on the Issues... --..--++-- 3 SUMMARY OF ARGUMENT ...........-0- 0s eee eeeee 4 QUESTIONS PRESENTED ...........--- 2 se eeeeeeee 9 A eee hak Oe tik Gad GNWwe 4.4) 60.0 6.0.6 merece 10 I. Due Process Does Not Require the Right of a Jury Pe Sch enue NAR Ran eee ssercsecers 10 A. Fundamental Fairness Is the Applicable Standard .... 10 B. Due Process Does Not Require a Jury Trial for a Juvenile Charged with Delinquency ........... 19 C. Imposition of a Jury Trial Requirement Would Carry Adverse Practical Consequences for the Efficient Operation of the Juvenile Court System .... 30 Il. Equal Protection of the Laws Is Not Offended By Denying a Jury Trial to a Juvenile ............... 36 Te aan cak he ahs Bab on Ws 66 0 6004 6 00 00 38 TABLE OF CITATIONS Cases: Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965) ... 16 Baldwin v. New York, 38 U.S. Law Week 4554, June 22, TT Pace h ae AWS ie WS Re 6A Ale cid: b 64% 0 90-47 0 6 00 19 Bloom vy. Illinois, 391 U.S. 194, 195, 213 (1968) ... 10, 11, 19, 34 Cinque v. Boyd, 99 Conn. 70, 121 A. 678 (1923) ......... 22 Comm. v. Johnson, 211 Pa. Super 62, 237 A.2d 9, 15-16 ae ee ae ete edt Bink bo oa 14, 24 Comm. v. Page, 339 Mass. 313, 316, 159 N.E.2d 82, 85 Lees es eee 2S OO. 8 OS 6.82.8 6 Soe 6.8 6 2.8 58 4 6 OD 6 ee a ee (ii) DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508, 513 (1968), app. dis. on other grounds, 396 US. PE his hohe OR Rak ck eke Dryden v. Comm., 4 Cr.L.Rep. 2253 (Ky. Ct. App., 1968) ... Duncan v. Louisiana, 391 U.S. 145 (1968) ............. Estes v. Hopp, 73 Wash. 2d 272, 438 P.2d 205 (1968) .. Ginsberg v. New York, 390 U.S. 629, 638 (1968) ...... ; In Re Daedler, 194 Cal. 320, 228 P. 467 (1924) ........... In Re Fletcher, 251 Md. 520, 248 A.2d 364 (1968) ....... Ge ey ee MID ec icc cs caccccnny In Re Perham, 104 N.H. 276, 184 A.2d 449 (1962) ......... In Re State in Interest of Carlo, 48 NJ. 224, 225 A.2d ta SPI SSAA Sao a ea eel In Re Watson, 157 N.C. 340, 72 S.E. 1049 (1911) ......... In Re Whittington, 391 U.S. 341 (1968) ............... In Re Winship, 397 U.S. 358 (1970) .................. Kent v. United States, 383 U.S. 541, 562 (1966) ......... Leland v. Oregon, 343 U.S. 790, 798 (1952) ............. Marsden v. Comm., 352 Mass. 564, 227 N.E.2d 1,2(1967) .. May v. Anderson, 345 U.S. 528 (1953) ................. James McKiever and Edward Terry v. Commonwealth of Pennsylvania, No. 322, October 1970 Term ............ Nieves v, United States, 280 F. Supp. 994, 1000 (S.D. ee NEA SEG cs VE AG Ae aS soe we ska bic en Peyton v, Nord, 78 N.M. 717, 437 P.2d 716 (1968) . Prince v. Massachusetts, 321 U.S. 158, 170 ines ke awa Singer v. United States, 380 U.S. 24, 31 (1965) ........... State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920) ....... Constitutional Provisions and Statutes: Ala. Code, Tit. 13, Sec. 369 (1969) Alaska Stat. 47.10.070 (1968 Supp.) etary —— (iii) Ariz. Rev. Stat. Ann., Sec. 8-229 (1956)... -- +++ +--+ 0e 22 Ark. Stat. Ann., Sec. 45-206 (1964 Repl.) ....-----+++++- 22 Colo. Rev. Stat. Ann. 22-8(1) 2.2... ee eee eee ee eee 22 Del. Code Ann., Tit. 10, Sec. 1175 (1966 Supp.) ...------ 22 16 D.C. Code 2307 (1967) ©... 6. eee ee eee eee nes 23, 24 Fla. Stat. Ann. 39.09(2) (1961)... eee eee ee eee es 22 Ga. Code Ann., Sec. 24-2420 (1959) ... 2... - eee ee eee ees 22 Hawaii Rev. Stat., Sec. S7I-41 .. 2... 6 eee ee eee eee ees 22 Gen. Laws Idaho Ann., Sec. 16-1813 ....-..-- 0s eee eee 22 Ind. Ann. Stat., Sec. 9-3215 (1967 Burns’ Supp.) ....-.--- 22 lowa Code Ann. 232.27 (1969 Supp.) ......------seee- 2 Kan. Stat. Ann. 38-808 (1968 Supp.) ........---- 2 esses 22 Ky. Rev. Stat., Sec. 208.060 (errs er 22 La. Rev. Stat. Ann., Sec. 13:1579 (1968) .........--+-+- 22 Me. Rev. Stat. Ann., Sec. 15-2610... 2... ee eee eee eee 23 McKinney’s Consol. Laws N.Y., Family Court Act 164, 165 and Civ. Prac. Law and Rules 4101 .........----+> 22 Mich. Stat. Ann., Sec. 27.3178 (598.17) 6... ee eee eee ees 23 Minnesota Juvenile Court Rules, Minn. Stat. Ann. Supp. 1969, foll. Chap. 260 (1969) ....... 2... eee eee eee eens 24 Minn. Stat. Ann., Sec. 260.155(1) (1967 Supp.) ........... 22 Miss. Code Ann., Sec. 7185-08 (1942)... - eee ee ee eee 22 Rev. Codes Mont., Sec. 10-603 (1947) ..........0000 05> 23 Rev. Stat. of Neb., Sec. 43-206.03(2) (1943) .........555- 22 Rev. Stat. of Nev. (1963), Sec. 62.190(3) ........-2e ees 22 N.J. Stat. Ann. 2A:4-35 (19GS) wc cece cee wc cenaces 22 N.D. Century Code, Sec. 27-16-18 (1967 Supp.) ........--- 22 Okla. Stat. Ann., Tit. 10, Sec. L110 2... 1. eee eee ee eee 23 Page’s Ohio Rev. Code Ann., Sec. 2151.35 (1968 Repl.) ... 22 Ore. Rev. Stat., Sec. 419.498(1) (1967 Supp.) .........-. 22 Purdon’s Pa. Stat. Ann., Tit. 11, Sec. 247 (1954) ......... 22 et OO (iv) Gen. Laws R.I., Sec. 14-1-30 (1967 Supp.) .. .......-...-- Code S.C. Laws, Sec. 15.1095.19 (1968 Supp.) ........... CUP: wwwievite nce eee ve vbeoswes Standard Juvenile Court Act, Section 19 (6th Ed. 1959) .. Tam: Cote Ram. Bae. FROGS «0 wi ccc et eeece Uniform Juvenile Court Act, Section 24{a) (Natl. Conf. Comm. on Uniform State Laws, 1968) ............... United States Constitution: ee Dk ah Saba he oF 4 6 OS 0d Cb a ewes aire aa nic BAW hs btw e's 0 'o es chia a i passim a EE er ee ee passim Utah Code Ann., Sec. 55-10-94 (1967 Supp.) ............. Vernon’s Ann. Mo. Stat., Sec. 211.171(6) .............--- Vernon’s Ann. Rev. Tex. Stat., Art. 2338-1, Sec. 13(b) ... Code Va. Ann., Sec. 16-1-162 (1950)... ......00. eee eee Vt. Stat. Ann., Tit. 33, Sec. 651(a) (1968 Supp.) ......... Rev. Code Wash. Ann., Sec. 13.04.030 ............-545.5 SS ee eee eee Wis. Stat. Ann., Sec. 48.25(2) (1957)... 2.2... eee ee eee Wyo. Stat. Ann., Sec. 14-108(c) (1961) ........ 0.00 e aes Miscellaneous: Allen, The Borderland of Criminal Justice 48 (1964) ....... Annual Report of the Juvenile Court of the District of Columbia, Fiscal Year 1968, p.9 .. 1.2... ee eee ee eee Antieau, Constitutional Rights in Juvenile Courts, 46 Cor- nell L.Q. 387, 400-01 (1961) .. 1... cc cee eee ween 24 Ardrey, The Territorial Imperative 20-21 (1966) .........-. 18 1 The Center Magazine 7, November 1968 ...........----- 28 Crime in the National Capital, Hearings on S. 2981 Before the Committee on the District of Columbia, United States Senate, 91st Cong., Ist Sess. (1969), pp. 1835, 1866 .. 17, 22, 25, 31, 34 Sere, (v) District of Columbia Crime Bill, P.L. No. 91-358, 91st Cong., 2d Sess., approved July 29,1970 .......--.. 24, 25, 31 Dorsen and Rezneck, Jn Re Gault and the Future of Juvenile Law, 1 Family L.Q. 1, 3, 22, 23 (1967) .. 16, 24, 28, 29 Frank, Courts on Trial 132 (1949) 2... 2. ee ee eee eee 28 Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 7, SO FD vin vas vhs bo wos Rhine ag RES SAD EEA sO 09:09 35 Kalven and Zeisel, The American Jury 9, 56 (1966)........ 28, 29 Lorenz, On Aggression 47 (1969) ........--.00 eee eeeee 18 Morris, The Naked Ape 126-28 (1967) ........------065 18 Note, Criminal Offenders in the Juvenile Court: More _ Brickbats and Another Proposal, 144 UPa. L.Rev. 1171 Loa. > SANA eee evevaeS eee eye eo ee 24, 29 Note, Gault in Indiana, 43 Ind. LJ. 661, 667 (1968) ... 13 Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv. L. Rev. 775, 793-94 on ar rey rey yee ey) er ee ere 25 Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum. L. Rev. 281, 284 (1967) «we ee ee ees 35 Paulsen, The Constitutional Domestication of the Juvenile Court, The Supreme Court Review 233 (1967) .. ee _ 13 Paulsen, Fairness to the Juvenile Offender, 41 Minn. Law POU BAT, THOU OTE os OK vc wh eee ce cee esau casacs 16 Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, The Supreme Court Review 167, 186, 192 (1966) ... svete eee teeta eee eee e tenes 16, 35 Pound, Interpretations of Legal History 135 (1923) ......... 27 Rosenheim, Standards for Juvenile and Family Courts: Old Wine in a New Bottle, 1 Family L.Q. 25, 28 (1967) ..... 13, 16, 27 Rubin, Crime and Juvenile Delinquency 66 (1958) ......... 35 Senate Report No. 91-620, 91st Cong., Ist Sess., Dec. 18, 19GD, PP. 1, G6, 1S wr cnc cc nsecsercesecegeneses 27, 30 Sheridan, Standards for Juvenile and Family Courts 73 (vi) Statement of the Managers on the Part of the Senate Regarding Conference Action on S. 2601, Committee Print, 91st Cong., 2d Sess., July 15,1970, p.19 ...... Storr, Human Aggression 44 (1968) ................ Tappan, Juvenile Delinquency 146, 211-12 (1949) ...... Task Force Report on Juvenile Delinquency and Youth Crime of the President’s Commission on Law Enforce- ment and the Administration of Justice, p.38 ........ Washington Post, July 30, 1970, p. A-l ........-.---- Wheeler and Cottrell, juvenile Delinquency: Its Prevention and Control 33 (Russell Sage Foundation 1966) ...... Young, The Constitution and the Juvenile Court—Letter or Spirit, 44 Jour. of the Am. Jud. Soc. 94, 97 (1960) .. nT gO —" a IN THE : Supreme Court of the United States OCTOBER TERM, 1970 ; No. 128 In Re BARBARA BURRUS, ET AL., Petitioners, ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA BRIEF OF THE NATIONAL COUNCIL OF JUVENILE COURT JUDGES AS AMICUS CURIAE IN SUPPORT OF RESPONDENT INTRODUCTORY STATEMENT The facts of this cause, which involves the consolidated cases of forty-four (44) juvenile petitioners, the pertinent constitutional provisions, the applicable provisions of the North Carolina statutes, the questions presented, the opinion of the North Carolina Supreme Court and those of the North Carolina Court of Appeals are set out in the brief and appen- dix filed by the petitioners.' The amicus accepts them for 'The opinion of the Supreme Court of North Carolina in this case is officially reported at 275 N.C. 157, 169 S.E.2d 879 (1969). The _ opinions of the North Carolina Court of Appeals are officially reported at 4 N.C. Apps. 523, 167 S.E.2d (1969) and 5 N.C. Apps. 487, 168 S.E.2d 695 (1969). —— 2 purposes of its own brief. Counsel for both parties have given their written consents to the filing of this amicus curiae brief in behalf of the National Council of Juvenile Court Judges.?_ In addition, the State of North Carolina, respond- ent herein, has agreed to yield 10 minutes of its time for oral argument to this amicus. THE INTEREST OF THE AMICUS AND ITS POSITION ON THE QUESTIONS PRESENTED A. Interest of the Amicus. The National Council of Juvenile Court Judges is an unincorporated association. More than 1,000 of its members are judges of the various States and the District of Columbia, vested with jurisdiction to determine juvenile cases. The judge members of the Council handle approximately 90% of the juvenile cases which are filed each year in the courts of the Nation. It has always been the Council’s belief that juvenile courts are courts of law and not social agencies. From its inception, the Council has adhered to the view that both legislation and judicial decisions in the field should be constantly studied to the end that due process of law and essential fairness to the troubled children who come before the juvenile court not be denied. because of informalities of procedure that might lead to arbitrariness. Nevertheless, from ancient times children necessarily have been subject to prohibitions in the law which are not imposed upon adults. And juvenile courts, from their beginnings, have dealt almost daily with some of the practical legal problems and complexities arising from the special place that the law assigns children. In pursuing its objectives, it has been the practice of the Council to provide legislatures and courts of last resort with the results of its collective knowledge and experience in the hope of illuminating problems that are not always fully 2Hereinafter usually referred to as the “Council”. i ene NE ae _— 3 appreciated by many attorneys who rarely practice in the juvenile court, and who, when they do come into that court, are not always equipped by experience and training to dis- tinguish between the principal focus of the criminal law— deterrence and retribution—and the principal focus of the juvenile court--reformation of a child, rather than his punishment. B. The Council’s Position on the Issues. This case, for the third time in recent years, provides an occasion for the Court to decide whether the Sixth Amendment, as applied to the States through the Fourteenth Amendment, requires that a juvenile be provided with an opportunity for a trial by jury before he can be adjudged a delinquent where the penalty to which he might be exposed would require a criminal trial should an adult have been so charged.? The Council’s basic interest in this case is that a long tested and enlightened system for the administration of justice for juveniles—a system which adheres to standards of fundamental fairness—not be jeopardized by a rigid insist- ence that the best interests, including adequate protection of their constitutional rights, of children not charged with crimes, can be realized only by treating them as if they were adults and so charged. The position which the Council takes in this case is identical to the position it asserts with respect to the companion case of James McKiever and Edward Terry v. Commonwealth of Pennsylvania, No. 322, which has been consolidated for argument with this case.4 While the broad interests of the Council fortuitously may be allied with the 3The Council participated as amicus curiae in two earlier cases that brought this same question to the Court. Jn Re Whittington, 391 U.S. 341 (1968), and DeBacker v. Brainard, 396 U.S. 28 (1969). The Council filed briefs and argued orally in both cases. “The Council has not filed a separate amicus curiae brief in McKiever but wishes to make clear that it supports the appellee in that case in urging that the decision of the Pennsylvania Supreme Court should be affirmed, for the same reasons that it supports affirmance of the ruling of the North Carolina Supreme Court in this case. 4 more specific concerns of the respondent here and the appellee in McKiever, the Council takes no position on the more narrow question of the correctness of the adjudica- tions of delinquency involved in the two cases. Rather, the Council appears in this Court solely in an attempt to present the collective knowledge and experience of its members on issues of undeniable importance to the future operation and development of juvenile court justice in the United States. It is the Council’s basic position that the twin goals of affording due process in juvenile court proceedings and at the same time preserving the reformative and rehabilitative goals of modern juvenile court systems can be achieved ‘est by not requiring a jury trial in juvenile court proceedings, SUMMARY OF ARGUMENT I A. The decisions of this Court on which petitioners rely in arguing that there is a constitutional right of a jury trial in the juvenile court were all cases in which the decision of the Court was arrived at through the selective absorption of certain rights guaranteed by the Bill of Rights. In each, the Court found that the denial of the particular right would be a departure from “fundamental fairness”. That is the same analysis which the Court should follow in deciding whether the Sixth Amendment, as applied against the states through the Fourteenth Amendment, requires a jury trial in adjudi- catory hearings conducted by the juvenile courts of the various states. On the other hand, the petitioners’ argument that the Fourteenth Amendment requires a jury trial in a juvenile court adjudication proceeds from the simplistic view that the recent decisions of this Court holding that juvenile adjudications are subject to the standards of the Due Process Clause and that due process guarantees a jury trial in state criminal proceedings and, therefore requires that the right 5 to a jury trial must apply to juvenile adjudications. It is amicus’s position that this Court in pursuing the constitu- tional domestication of juvenile court adjudications has not proceeded with a broad brush approach of the type suggested by the petitioners. Rather, in each case, the Court has made a searching evaluation of those procedural safeguards applied in criminal proceedings that are at the very heart of assuring fundamental fairness in adjudications carrying the threat of serious loss of liberty, viewed in light of the effect of the imposition of those safeguards upon the recognized advan- tages of the distinctive methods of adjudication long fol- lowed in the juvenile courts. We have no quarrel with the previous decisions of this Court, which, to be sure, have enunciated standards requiring substantial changes in juve- nile court procedures, but not changes which have imposed critical inhibitions upon the goal of expeditious and flexible adjudications which would be the case if the jury trial is made a constitutional prerequisite in an adjudication of juvenile delinquency. In the landmark case of Jn Re Gault, 381 U.S. 1 (1967), there was no indication that this Court intended to fasten on juvenile court proceedings all the procedural standards required by the Fourteenth Amondment in criminal pro- ceedings. Actually, the constitutional rights which Gault ar- ticulated as requirements in the juvenile court were rights which are nearly co-terminus with the minimum standards of fair procedure required for proceedings in most civil cases. The Gault decision and the other decisions of this Court upon which petitioners rely, therefore, do not establish that there is an automatic congruence between the procedural re- quirements imposed by due process in a criminal case and those imposed by due process in juvenile cases. There is a basic supporting justification for distinguishing between criminal proceedings and those of the juvenile court. That distinction lies in the fact of a child’s immatu- rity, a condition which is not usually presumed of adults. That condition of immaturity has been impliedly recognized by this Court in sanctioning legislative restriction of a child’s oan 6 free exercise of religion rights and his right of free speech, when necessary for his protection. Do a child’s due process rights occupy a higher plane than his First Amendment freedoms? B. The critical issue in determining whether due process requires application of the Sixth Amendment's right to a jury trial in juvenile court proceedings is whether that right is so fundamental that a proceeding conducted in its absence must be said to be intrinsically unfair. Duncan v. Louisiana, _ 391 U.S. 145 (1968), does not argue to the contrary and is distinguishable from the case at bar in that the jury right sustained in that case in criminal proceedings has enjoyed long continued and universal acceptance in all American jurisdictions. Similarly, Jn Re Winship, 397 U.S. 358 (1970), where this Court held that the reasonable doubt standard was applicable both to criminal proceedings and juvenile court adjudications, also presented a sitvation where there was virtually unanimous adherence to the reasonable doubt standard in all common law jurisidctions since the Nation’s beginnings. At the present time, thirty-four states deny the juvenile a right to trial by jury in cases such as this. Eleven other jurisdictions grant the right, but only upon demand. Of the remaining five states, it is very probable that four of them would not grant a jury trial if the question were directly raised for decision. And even in those states where | the jury trial is provided for in juvenile court proceedings, exercise of that right, at least prior to this Court’s decision | in Gault, was a very rare occurrence. Not only has the right to a jury trial in juvenile courts been denied both by legislative action and court decision, but the opinions of the scholars and the experts in the field, with a rarely encountered dissent, have opposed the incor- poration of the jury trial into juvenile court proceedings. —_—_——————— Nor can it be argued, as it could be in contending that the reasonable doubt standard should be observed in juve- nile courts, that the jury trial is required as “a prime 7 instrument for reducing the risk of convictions resting on fundamental error and preserving the presumption of inno- cence.” Indeed, as a result of this Court’s decision in Winship, juvenile court judges now must apply the reasonable doubt standard in any future adjudication of delinquency. Putting unenlightening labels aside, it remains true that the juvenile court system, like American administrative law, is sui generis. It finds analogies for the procedures it observes in other areas of the law, but the system maintains its own unique nature which was specially fashioned in order to achieve the particular purposes for which it was created. Before transferring the jury system in toto to the juvenile court, some consideration should be given to the relative merits of jurors, as opposed to judges, as instruments of fair and effective factfinding. Recent studies have produced persuasive findings that juries are not significantly better equipped to find the facts than judges are. And juries can be as arbitrary as judges. However, whatever the precise merit or stature of the jury trial in criminal cases, its desirability in other proceedings is sufficiently debatable to preclude accepting its status as a fundamental necessity required by due process in juvenile court proceedings. C. In addition, there are several substantial adverse practical consequences which might ensue if the jury trial were to be required in juvenile cases. It is it injected into the juvenile trial, it will bring with it the traditional delay, formality and inevitable “‘clash and clamor” of adversary proceedings with which adult jury trials so frequently are permeated. Congress took note of these accouterments of the jury trial when it very recently abolished “‘the cumber- some and inappropriate trial by jury formerly provided by statute in the District of Columbia.”” Both friends and foes of proposals to cut back some of the procedural protections enjoyed by the criminally-accused agree that the extended delays which now occur between a criminal charge and its final disposition are an abomination, unfair to many defend- ants and frequently gravely hurtful to the peace and security of law-abiding citizens. The substantial contribution of the jury trial to this unpardonable delay argues strongly against its introduction into the juvenile court system, which, if it is to work at all, must set in motion at the earliest possible moment whatever special facilities and techniques it may have for the counselling, treatment, rehabilitation and reform of a troubled child. Unlike the reasonable doubt standard, which this Court required in both criminal and juvenile pro- ceedings in Winship, supra, there is no question that the im- position of the jury trial in the juvenile court setting would have a significant adverse “effect on the informality, flex- ibility . . . [and] speed of the hearing . . .” 397 U.S. at 366. With the jury trial will come the “public trial” required by the Sixth Amendment. The Council has the gravest doubts that anyone in this day of the widest possible news coverage by the communications media can point to any salutary effects—either from the point of view of the juve- nile or from that of society—to be achieved by making adjudications of juvenile delinquency public proceedings. A decision announcing the existence of a right to trial by jury in the juvenile court would put in question other concomitants of the right to trial by jury, such as the necessity of a unanimous verdict of such a jury. In addition, the equation of the juvenile court with the criminal court for purposes of incorporating a constitutional right to a jury trial will raise other issues concerning other processes which result in loss of liberty, such as mental commitment proce- dures and dependency hearings. Although not expressly raised, it may be argued that denying a juvenile a jury trial where an adult would receive one in a criminal proceeding constitutes a violation of equal protection. Such an argument should be unavailing. There are many distinctions in the treatment of children recognized ———— 9 in the law which are long established and well accepted. In all of them, it is the condition of being a child and the presumption of immaturity which attaches to that condition which both explains and justifies the difference in the law’s treatment of the juvenile as opposed to the adult. The same reasons that justify the conclusion that due process does not require a jury trial serve also to support the conclusion that the Equal Protection Clause is not violated if he is denied the jury trial right. At the root of both conclusions is the ancient assumption, overwhelmingly supported by the teach- ings of psychology, biology, physiology, sociology and ordinary human experience, that a child is not the same as an adult. Therefore, treating him as a child and not as an adult is not unconstitutional, provided that he is treated fairly. QUESTIONS PRESENTED The determinative issue here is whether the Sixth Amend- ment, as applied to the States through the Due Process Clause of the Fourteenth Amendment, requires a trial by jury of a juvenile in a juvenile court for an offense which, if committed by an adult, would require a jury trial if requested. Additionally, however, though not expressly raised below, the issue presented may carry equal protection implications; ie., is it an invidious discrimination not to provide the opportunity for a trial by jury to a juvenile where it would be provided if an adult were involved in the same situation? For the reasons which it states below, the Council believes that both of these questions should be answered in the negative. re ste a ARGUMENT I. DUE PROCESS DOES NOT REQUIRE THE RIGHT OF A JURY TRIAL FOR A JUVENILE In order to answer the basic constitutional question presented in this case and in the McKiever case, it first must be determined whether the meaning and scope of the due process to be applied in an adjudication of juvenile delinquency is to be arrived at through a selective absorption of rights specified in the Bill of Rights or through the full scale incorporation of those rights as part of the guarantees afforded by the Fourteenth Amendment. The amicus main- tains: (1) that the due process requirements that must be observed in an adjudication of juvenile delinquency should be determined through a process of selective absorption of the rights contained in the Bill of Rights according to a standard that will assure “fundamental fairness” to the juvenile; (2) that, so interpreted and applied, due process does not require a jury trial in juvenile court proceedings; and (3) that, in addition, the serious adverse practical con- . sequences that will follow if a jury trial is required in juvenile court proceedings argue strongly against the imposi- tion of a jury trial requirement. -A. Fundamental Fairness Is the Applicable Standard. The petitioners in this case and those in the companion McKiever case take their stand essentially on the basis of four decisions of this Court. The first is Jn Re Gault, 387 U.S. | (1967). The other three are Duncan v. Louisiana, 391 U.S. 145 (1968), Bloom y, Illinois, 391 U.S. 194 (1968), and In Re Winship, 397 U.S. 358 (1970). Whatever the petitioners can make of these four decisions, they have one undisputed common denominator. In each, this Court arrived at a result favorable to the defendant by the selective absorption of certain rights guaranteed by the Bill of Rights to the particular case at hand, finding in each instance that the denial of the particular right would be a departure from “fundamental fairness”. That analysis, this amicus contends, - is precisely the one which the Court should follow in decid- ee — — ing whether the Sixth Amendment, as applied against state action by the Fourteenth Amendment, requires a jury trial in adjudicatory hearings conducted by the juvenile courts of the various states. On the other hand, petitioners argue that the Fourteenth amendment requires the right to a jury trial in any juvenile court adjudication carrying the threat of a serious depri- vation of liberty. Their argument here proceeds from a rather simplistic view of the Court’s recent decisions deter- mining the fundamental requirements of due process in juvenile court adjudications and determining, with respect to criminal proceedings carrying the threat of serious depri- vations of liberty, that the Fourteenth Amendment includes the Sixth Amendment’s jury trial guarantee. Basically, the argument is that the Court has determined in Gault and | Winship that juvenile court adjudications are subject to the | standards of the due process clause, and the Court has de- | termined as well in Duncan and Bloom that the due process clause guarantees a jury trial in state criminal proceedings, and, therefore, the right to a jury trial must apply to juvenile adjudications. 11 The basic flaw in petitioners’ argument is that, while the Court in Gault rejected the rigid concept that juvenile court adjudications are civil and therefore free from any due process limitations applied in criminal proceedings, the Court also rejected, both in Gault and Winship, any procrustean application of all of the due process requirements in criminal proceedings to juvenile court adjudications. Rather, the Court made clear in Winship that its decision in Gault imposed upon juvenile court adjudications only the “‘essen- tials of due process and fair treatment”’ and not that “the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding ....” 397 US., at 359. Indeed, the Court in Winship speci- fically rejected the position of the dissent that its Winship opinion adopted the premise that juvenile court adjudications may be equated fully with “criminal prosecutions ... .” Id., at n. 1. 7 12 The position of this Court in the constitutional domesti- cation of the juvenile court adjudications simply has not proceeded upon the kind of broad brush approach suggested by the petitioners, and the Council here urges only that the Court continue the approach followed in Gault and in Winship—a searching evaluation of those procedural safe- guards applied in criminal proceedings that are at the very heart of assuring fundamental fairness in adjudications carry- ing the threat of serious loss of liberty, viewed in light of the effect of the imposition of those safeguards upon the recognized advantages of the distinctive methods of adjudi- cation long followed in juvenile courts. Application of that approach here, we contend, leads to the conclusion that the right of jury trial is not constitutionally required in juvenile court adjudications, nor does it carry advantages outweighing its adverse effect upon the goal of expeditious and compara- tively informal adjudication of juvenile delinquency. The Council has no quarrel now, nor did it at the time that the cases were before this Cov-*, with the results in Gault and Winship. But it requires no denigration of the values implicit in trial by jury to say, as we show below, that that right does not occupy the same critical role in assuring fundamental fairness as do those secured in Gault and Winship. Those rights—notice of charges, assistance of counsel, cross-examination, the privilege against self-incrimi- nation, and proof beyond a reasonable doubt—unquestionably are essential to protect against the arbitrariness that always can—though we suggest it rarely does—infect adjudications of juvenile delinquency. Those rights admittedly were accorded petitioners here, however (see Petitioners’ Brief, at 15), and the importance of trial by jury must, we contend, be determined in the context of juvenile court adjudications that are now subjeci to all of the safeguards imposed by Gault and Winship. Further, the Court emphasized in both Gault and Winship not only that many unique aspects of juvenile court adjudi- cations were valuable but also that the procedural safeguards Sa 13 imposed in those cases would not inhibit that value. Thus, in Winship, the Court pointed out that the requirement of a reasonable doubt standard would have no “effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place.” 397 U.S., at 366. Again, the Council has no quarrel with that judgment. To be sure, the requirements imposed in Gault and Winship have required substantial changes in juvenile court procedures in some jurisdictions, but those changes have imposed no critical inhibitions upon the goal of expeditious and flexible adjudi- cations. This case, however, involves a vastly different requirement from the standpoint of orderly administration of the juvenile courts, as we show later in this brief. In Re Gault, supra, is the landmark case, of course. That decision, as Dean Paulsen put it, has brought about the “constitutional domestication of the juvenile court.”* How- ever, on any fair reading, Gault must be taken as holding that the only constitutional rights required to be observed in juvenile court proceedings are those that are considered to be fundamental to the achievement of fairness to the juvenile. To be sure, concern has been expressed by some courts® and commentators’ that Gault implied that all the constitutional protections now applicable to adults in crim- inal proceedings must be applied automatically and totally in juvenile court proceedings. To the Council, however, such anxiety does not appear well founded. Nothing in the language of Mr. Justice Fortas, writing for the Court in Gault, suggests any intention of this Court to transform the SPaulsen, The Constitutional Domestication of the Juvenile Court, The Supreme Court Review 233 (1967) ’ ©DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508, 513 (1968), app. dism. on other grounds, 396 U.S. 28 (1969); Nieves v. United States, 280 F. Supp. 994, 1000 (S.D. N.Y., 1968). 7Rosenheim, Standards for Juvenile and Family Courts: Old Wine in a New Bottle, 1 Family L.Q. 25, 28 (1967); Wheeler and Cottrell, Juvenile Delinquency: Its Prevention and Control 33 (1966); Note, Gault in Indiana, 43 Ind. LJ. 661, 667 (1968). — 14 juvenile court into another criminal court, bound by ail of the adjudicatory procedures of a criminal court. To the contrary, reiterating hi. view in Kent v. United States, 385 U.S. 541, 562 (1966), Mr. Justice Fortas said in Gault: “We do not mean... . to indicate that the hearing to be had n-ust conform with all the requirements of a criminal trial or even of the usual administrative hearing, but we do hold that the hearing must mea- sure up to the essentials of due process and fair treatment.” 387 U.S., at 30. Other language in Gault confirms the conclusion that the decision discloses no reasonable basis for the sweeping view that this Court intended to fasten on juvenile court proceedings all the procedural standards required by the Fourteenth Amendment in criminal proceedings. For exam- ple, the Court pointed out that the due process standard to be observed is to be “intelligently and not ruthlessly administered.” 387 U.S., at 21. Nor did the Court suggest in Gault that the adversary system in full panoply was now to be required in the juvenile court. It said only that due process requirements “‘in contested cases will introduce some elements of the adversary [proceedings] .. . .”” (Emphasis supplied). 387 U.S., at 27. And the Court observed that “nothing will require that the conception of the kindly juvenile judge be replaced by its opposite, ...” Jbid.*® Indeed, with one exception, the rights which Gault established for juveniles charged with delinquency are the same that any litigant would enjoy, by virtue of the require- ments of due process, in most types of civil proceedings and hearings before administrative agencies exercising quasi- judicial powers, as well; i.e., (1) the right to adequate notice; (2) the right to confront and cross-examine witnesses; (3) the right to remain silent; and (4) the right to counsel, including the right to court-appointed counsel if the juvenile ®For the same understanding of the implications in the Gault decision, see Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A.2d 9, 15-16 (1967). ie 15 or his parents are indigent. It is only the last right that, as | yet, has not been extensively provided for in civil and | administrative hearings. Too plainly for argument, the minimum standards of fair procedure required for hearings in civil cases should also apply to hearings in a juvenile court. It could be logically argued that constitutional decision making might be simpler if the “spacious language”? of the Due Process Clause of the Fourteenth Amendment were construed to embrace all of the rights contained in the Bill of Rights. However, this Court has never followed such a course of adjudication with respect to adults charged with crimes. It should not now undertake to do so with respect to juveniles similarly charged. In its most recent ruling touching upon the constitutional prerequisites that must be observed in juvenile court proceedings, it deliberately eschewed such an approach. In its decision last Term in Jn Re Winship, 397 U.S. 358 (1970), this Court held that proof beyond reasonable doubt is required by the Due Process Clause, both in criminal trials and in adjudications of juvenile delinquency, because such a requirement is among the “essentials of due process and fair treatment” to be afforded both the cirminally accused and the youth charged with delinquency. '° This Court’s rejection, in Gault, of an uncritical and mechanical application of the Bill of Rights in juvenile court *Duncan v. Louisiana, 391 U.S. 145, 148 (1968). '©Unsurprisingly, this approach, even more than the result arrived at, produced a dissent by Mr. Justice Black, who for nearly a quarter of a century consistently, but unsuccessfully, has argued against pursuit of the “selective incorporation” theory of the Bill of Rights, main- taining that only the express proscriptions or implied commands of the Bill of Rights can be invoked to strike down the actions of a legislative body, iederal or state. Compare Mr. Justice Black’s dis- senting opinion in Winship, 397 U.S., at 377-386, with Mr. Justice Harlan’s concurring opinion in the case, 397 U.S., at 368-376. 16 proceedings has been approved by both critics’ and sup- porters'? of the juvenile court system. The state courts also, including the Arizona Supreme Court, whose opinion in Gault was reversed by this Court,'> have espoused a similar view. The North Carolina and Pennsylvania Supreme Courts, from which this case and the McKiever case have come to this Court, also have adopted the same under- standing of how the Bill of Rights is to be applied to juvenile court proceedings.'* In such a view, the critical issue ig what affords fairness to the juvenile, not what are the precise rights to which an adult can lay constitutional claim in criminal proceedings. '5 The Council is of the same view that Mr. Justice Harlan first expressed in his separate opinion in Gault and repeated in his concurring opinion in Jn Re Winship, supra, i.e., that “there is no automatic congruence between the procedural requirements imposed by due process in a criminal case and those imposed by due process in juvenile cases.”” 397 U.S., at 375. Further, the Council is of the opinion that this criterion of distinct and independent fairness to the juvenile in determining what his constitutional rights are has been developed and maintained for sound reasons. We need not accept the lazy logic of labels to recognize, as this Court did in Gault, supra at 22, and in Winship, supra, at 366-67, that criminal proceedings and juvenile court proceedings are distinguishable in ways that should be maintained. The ''Dorsen and Rezneck, In Re Gault and the Future of Juvenile Law, | Family L.Q. 1, 3 (1967); Paulsen, Fairness to the Juvenile Offender, 41 Minn. Law Review 547, 550 (1957); Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, The Supreme Court Review 167, 186 (1966). 12Rosenheim, Standards for Juvenile and Family Courts, supra; Wheeler and Cottrell, Juvenile Delinquency, note 7, supra. 13 4 pplication of Gault, 99 Ariz. 181, 407 P.2d 760 (1965). 14169 S.E.2d at 887; 234 A.2d at 15-16. 'SIn Re State in Interest of Carlo, 48 N.J. 224, 225 A.2d 110, 116 (1966); and see cases cited Jn Re Gault, supra at 12, fn. 8. 17 basic supporting justification for that distinction between the two is the understanding that there is a rational basis for procedural differences between juveniles charged with a violation of law and their adult counterparts. It goes without saying that juveniles are of an age when the enticements of crime are most alluring, yet when their sense of right and wrong is at its peak and when their susceptibility to reform is the greatest. Nor has this Court been oblivious to the fact that a child’s immaturity may serve as a basis, if necessary for his protection, for the state not to afford him the same scope or quantum of constitutional freedom that an adult other- wise might enjoy. As Mr. Justice Frankfurter once put it: “Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to a determination of a state’s duty towards children.” '® For example, the Court has sanctioned restriction by the legislature of a child’s free exercise of religion rights, Prince y, Massachusetts, 321 U.S. 158, 170 (1943), and his rights to free speech, Ginsberg v. New York, 390 U.S. 629, 638 (1968), when reasonably necessary for the protection of his own unavoidable condition of immaturity. Do a child’s Due Process rights occupy a higher plane than his First Amendment freedoms? To be sure, some critics of juvenile court procedure have argued that: “Juveniles have an intense perception of fair- ness; and children are familiar nowadays from an earlier age with fair trial notions of jury trial and reasonable doubt;” and, therefore, to “deny them this right will work against their rehabilitation which can only be built upon their belief that they have been treated fairly.”'7 Mr. Justice Fortas apparently paid some heed to this notion in his opinion in '©May v, Anderson, 345 U.S. 528 at 536 (1953). '7Cyime in the National Capital, Hearings on S. 2981 Before the Committee on the District of Columbia, United States Senate, 91st Cong., Ist Sess. (1969), p. 1866. on cence CTE 18 Gault. See 387 U.S., at 26. On the other hand, the sociological and psychological findings which hold to the contrary are those which, in part, gave birth to, and still justify, the less formalistic procedural functioning of the juvenile court. That court system, as it has evolved, has been characterized by Dean Francis Allen as “the most important and ambitious effort yet undertaken by our law to give practical expression to the rehabilitative ideal.” '® Moreover, more recent scientific findings in the field of ethology tend to confirm that the sociologists, lawyers and other reformers of the early 19th century who conceived and created the juvenile court system were on the right track in separating the juvenile from his adult criminal counterpart. The leading writers in this relatively new scien- tific field agree that one of the greatest mistakes in child rearing may have been the assumption that aggression, in- cluding unsocial behavior, on the part of a child is only a response to frsutration and that a child must be indulged- indeed treated as a little adult-for his own ultimate sound development. Lorenz, On Aggression 47 (1969); Storr, Hu- man Aggression 44 (1968); Morris, The Naked Ape 126-28 (1967); Ardrey, The Territorial Imperative 20-21 (1966). The recent works of these writers have seriously discredited the behavioristic-environmentalistic theories of the nature of man, including the rearing of the young, that have been in vogue for half a century. They would surely find amusing but unfounded the notion that, unless society and the law provide a juvenile with identical procedural treatment to that afforded an adult, he might be permanently marred, so far as his future social adjustment as a human being is concerned. The applicability of a particular constitutional right in the juvenile court, when invoked under the mandate of due process, should be tested by its relevance to the standard of fairness to the juvenile within the total context of the juvenile court’s quest for the rehabilitative ideal. Judged in 18 Allen, The Borderland of Criminal Justice 48 (1964). — 19 that light, amicus contends, for the reasons now stated, that the right to trial by jury is not so fundamental to a system of ordered liberty that it must be observed in a juvenile | court proceeding. B. Due Process Does Not Require a Jury Trial for a Juvenile Charged with Delinquency. The critical issue in determining whether due process requires the application of the Sixth Amendment’s right to a jury trial in juvenile court proceedings is whether that right is so fundamental that a proceeding conducted in its absence must be said to be intrinsically unfair. To this the petitioners offer a syllogistic, but unpersuasive, answer. First, they point out that this Court’s decisions in Duncan v. Louisiana and Bloom y, Illinois, supra, establish that the Sixth Amendment, as made applicable to the States by the Fourteenth Amend- ment, requires a jury trial in any serious criminal case, sub- sequently found by the Court to be any case where the maxi- mum penalty to which the defendant might be exposed is in excess of imprisonment for six months. Baldwin v. New York, 38 U.S. Law Week 4554, June 22, 1970. Accordingly, petit- ioners say, since the offenses on which the adjudication of delinquency was based in both this case and McKiever would expose the juveniles to possible confinement for a period in excess Of six months, they necessarily had a constitutional right to a jury trial before they could be adjudicated delin- quents. Further, the petitioners argue, the Court’s even more recent decision in /n Re Winship, supra, holding the reasonable doubt standard of proof to be required by due process both in criminal proceedings and in juvenile court proceedings, also supports the claim of a jury trial right which they assert in this litigation. Amicus turns to these cases. It is perhaps Duncan that is most critical. There, Mr. Justice White, writing for the Court, spoke not of fundamental fairness in the abstract but of such fairness according to the meaning ‘“‘the American scheme of justice” concretely ascribes to it. The Court there granted that “‘[a] criminal process which was fair and 20 equitable but used no juries is easy to imagine,” but cop tinued that “no American State has undertaken to construct such a system.”” 391 U.S., at 150, n. 14. At a later point in the opinion, the Court again emphasized that the “strong support” which the jury trial right in criminal causes had received in the laws of every state was very pertinent in determining whether it was fundamental in the American system of justice. Jd., at 154."° The same constitutional approach was followed by Mr. Justice Brennan, writing for the Court in Jn Re Winship, supra, in concluding that the Due Process Clause requires proof beyond a reasonable doubt both in criminal trials and at the adjudicatory stage of a juvenile court proceeding when a juvenile is charged with an act that would constitute a serious crime if committed by an adult. In reaching that conclusion, the Court first considered history, noting that the “requirement that guilt of a criminal charge be estab- lished by proof beyond a reasonable doubt dates at least from our early years as a Nation.” Next, it noted the “virtually unanimous adherence to the reasonable doubt standard in common law jurisdictions”, observing that while that adherence “may not conclusively establish it as a requirement of due process, such adherence does ‘reflect the profound judgment about the way in which the law should be enforced and justice administered’ [citing Duncan v. Louisiana at 155]”. The Court’s opinion in Winship thea reviewed the “many opinions of this Court [which] indicate that it has been assumed that proof of a criminal charge 19 As he did in Gault, and again in Winship, Mr. Justice Black, while concurring in the result reached in Duncan v. Louisiana, was careful to preserve his opposition to the selective incorporation theory on which the Court proceeded and on which the majority opinion rested in Duncan. However, he did concede that the selective incorporation doctrine “does limit the Supreme Court in the Fourteenth Amendment field to specific Bill of Rights protections only and keeps judges from roaming at will in their notions of what policies outside the Bill of Rights are desirable and what are not.” 391 U.S., at 145. 21 beyond a reasonable doubt is constitutionally required.” 397 U.S., at 362. Next, it referred to the vital role which the reasonable doubt standard plays “in the American scheme of criminal procedure . . . where it is a prime instru- ment for reducing the risks of convictions resting on factual error. . . [and] in truth is the standard [which] provides concrete substance for the presumption of innocence”’, that bedrock principle which lies at the foundation of the administration of American criminal law. 397 U.S., at 358. Going on to find that the “same considerations that demand extreme caution in fact finding to protect the innocent adult apply as well to the innocent child”, 397 U.S., at 365, the Court then held that the same standard of proof must be observed in the juvenile court as in the adult criminal court. However, it was careful to discount that the imposi- tion of the reasonable doubt standard in juvenile proceedings would have “any effect on the informality, flexibility, or speed of the hearing at which the fact finding takes place.” 397 U.S., at 366.7° The Council does not disagree with either the results or the rationale on which those results were reached in Duncan and in Winship. However, it is clear from both of those de- cisions, and before, that due process must take into account the practices found suitable by the deliberate process of legis- lative and judicial action throughout the States. On that analysis, the juvenile court, as now conducted in more than two-thirds of the States, cannot be found wanting in due process by proceeding without a jury trial. ?°In his concurring opinion, Mr. Justice Harlan emphasized his view that the requirement of proof beyond a reasonable doubt “does not (1) interfere with the worthy goal of rehabilitating the juvenile, (2) make any significant difference in the extent to which a youth is stigmatized as a ‘criminal’ because he has been found to be a delin- quent, or (3) burden the juvenile courts with a procedural requirement that will make juvenile adjudications significantly more time con- suming or rigid. Today’s decision simply requires a juvenile judge to be more confident in his belief that the youth did the act with which he has been charged.” 397 U.S., at 375. 22 From the inception of the juvenile court systems in the States, provision for a jury trial right in the juvenile cour statute, either expressly or impliedly, has been rare, and ug of that right, where provided, has been even more unusual, at least prior to Gault. A study of the statutes and judiciaj opinions indicates that 34 states at present clearly and defi. nitively deny the juvenile a right to a jury trial in cases such as this.74_ Some 12 other jurisdictions (including, until rr. cently, the District of Columbia) grant that right, but then only upon demand. Senate Hearings, note 17, supra at 1835.72, Of the remaining five states, it is very probable 2! By statute in: Ala. Code Tit. 13, Sec. 369 (1969); Alaska Stat, 47.10.070 (1968 Supp.); Ariz. Rev. Stat. Ann., Sec. 8-229 (1956): Ark. Stat. Ann., Sec. 45-206 (1964 Repl.); Del. Code Ann. Tit. 10, Sec. 1175 (1966 Supp.); Fla. Stat. Ann. 39.09(2) (1961); Ga. Code Ann., Sec. 24-2420 (1959); Hawaii Rev. Stat., Sec. 571-41; Gen, Laws Idaho Ann., Sec. 16-1813; Ind. Ann. Stat., Sec. 9-3215 (1967 Burns’ Supp.); lowa Code Ann. 232.27 (1969 Supp.); Ky. Rev. Stat., Sec. 208.060 (1962); La. Rev. Stat. Ann., Sec. 13:1579 (1968); Minn. Stat. Ann., Sec. 260.155(1) (1967 Supp.); Miss. Code Ann., Sec. 7185-08 (1942); Vernon’s Ann. Mo. Stat., Sec. 211.171(6) (equity practice controls); Neb. Rev. Stat., Sec. 43-206.03(2) (1943); Nev. Rev. Stat., Sec. 62.190(3) (1963); N.J. Stat. Ann. 2A:4-35 (1963); McKinney’s Consol. Laws N.Y., Family Court Act 164, 165 and Civ. Prac. Law and Rules 4101; N.D. Century Code, Sec. 27-16-18 (1967 Supp.); Page’s Ohio Rev. Code Ann., Sec. 2151.35 (1968 Repl.); Ore. Rev. Stat., Sec. 419.498(1) (1967 Supp.); Purdon’s Pa. Stat. Ann., Tit. 11, Sec. 247 (1954); Code S.C. Laws, Sec. 15.1095.19 (1968 Supp.); Utah Code Ann., Sec. 55-10-94 (1967 Supp.); Vt. Stat. Ann., Tit. 33, Sec. 651(a) (1968 Supp.); Rev. Code Wash. Ann., Sec. 13.04.030. By judicial decisions in: Calif.: Jn Re Daedler, 194 Cal. 320, 228 P. 467 (1924); Conn.: Cinque v. Boyd, 99 Conn. 70, 121 A. 678 (1923); Md.: Jn Re Fletcher, 251 Md. 520, 248 A.2d 364 (1968); Mass.: Comm. v. Page, 339 Mass. 313, 316, 159 N.E.2d 82, 85 (1959) (dictum); Marsden v. Comm., 352 Mass. 564, 227 N.E.2d 1, 2 (1967) (dictum); N.C.: In Re Watson, 157 N.C. 340, 72 S.E. 1049 (1911); State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920); N.H.: Jn Re Perham, 104 N.H. 276, 184 A.2d 449 (1962). 22By statute in: Colo. Rev. Stat. Ann. 22-8(1); Kan. Stat. Ann. 38-808 (1968 Supp.) but here the Juvenile Court merely refers the issues to another tribunal for a jury trial and then it is returned for BeEeeTrTrF FKRSPSePTRF BZA 23 that four would not grant a jury trial if the question were directly raised for decision.* Admittedly, the customs and usages of even a substantial number of States should not be of controlling weight when great constitutional rights are at stake. Nevertheless, they are extremely relevant to deter- mination of the instant issue. As Mr. J ustice Clark once said, “The fact that a practice is followed by a large num- ber of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our peo- ple as to be ranked as fundamental.’”** Thus, so far as state practices are concerned, and unlike the situation in Duncan v. Louisiana and in In Re Winship, supra, the existence of a jury trial right in juvenile court proceedings has received limited acceptance only in a dis- disposition to the Juvenile Court; Mich. Stat. Ann., Sec. 27.3178 (598.17); Rev. Codes Mont., Sec. 10-603 (1947); Okla. Stat. Ann., Tit. 10, Sec. 1110; S.D. Code (1939), Sec. 43.0331 (but only the court may order a jury of six); Vernon’s Ann. Rev. Tex. Stat., Art. 2338-1, Sec. 13(b); W.Va. Code Ann., Sec. 49-5-6; Wis. Stat. Ann., Sec. 48.25(2) (1957); Wyo. Stat. Ann., Sec. 14-108(c) (1961); 16 D.C. Code 2307 (1967). By judicial decision in: Peyton v. Nord, 78 NM. 717, 437 P.2d 716 (1968). 23in Virginia, amicus is advised that the current practice opposes a jury trial. See, in general, Code Va. Ann., Sec. 16.1-162 (1950). In Maine, the statute stipulates an informal juvenile court hearing. Me. Rev. Stat. Ann., Sec. 15-2610. In Illinois, the earliest act provided for a jury but the latest revision makes no mention of the matter. In Tennessee the earlier right to a jury trial statute was repealed in 1955 and its replacement does not mention the issue. In Tennessee the earlier right to a jury trial statute was repealed in 1955 and its replace- ment does not mention the right. Tenn. Code Ann., Sec. 37-244. Finally, in Rkode Island, the most recent statutory amendment has replaced the direct prohibition of a jury with silence. Gen. Laws R.1., Sec. 14-1-30 (1967 Supp.). 247 eland v. Oregon, 343 U.S. 790, 798 (1952). Similarly, the recent guidelines 2516 D.C. Code 2307 (1967). 26 Washington Post, July 30, 1970, p. A-1. 27See, e.g., Estes v. Hopp, 73 Wash.2d 272, 438 P.2d 205 (1968); Comm. vy. Johnson, 211 Pa. Super. 62, 237 A.2d 9 (1967). Contn: Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968). ' 28antieau, Constitutional Rights in Juvenile Courts, 46 Comel L.Q. 387, 400-01 (1961). But Professor Antieau bases his judgment, in part, on an erroneous finding that “the legislatures in almost half the states” provide for a jury trial in juvenile court matters; Dorsen and Rezneck, supra at 22-23. Note, Criminal Offenders in the Juvenile Court: More Brickbats and Another Proposal, 114 U. Pa. L. Rev. 1171, 1187 (1966). 29Tappan, Juvenile Delinquency 211-12 (1949); Sheridan, Stand- ards for Juvenile and Family Courts 73 (1966). Section 19 (6th Ed. 1959). 31 Uniform Juvenile Court Act, Section 24(a) (Nat’l. Conf. Comm. on Uniform State Laws, 1968). 32Minn. Juvenile Court Rules, Minn. Stat. Ann. Supp. 1969, fol. Chap. 260 (1969). 33p_ 38. — eS, ae aT fF oOo wf OC et OO TF a ae 25 promulgated by the United States Department of Health, Education and Welfare reject the requirement of a jury trial as both unnecessary and undesirable. The Council be- lieves it worthy of note that both the sponsors of the Uni- form Act and HEW, while opposing a jury trial right for a juvenile, did urge the adoption of the reasonable doubt standard prior to the Court’s decision in Winship. 397 US., at 361, n. 3. Even the 11 remaining jurisdictions which permit a jury trial in juvenile matters make no convincing case that fun- damental fairness requires a jury trial in the juvenile court. An example provided by the Harvard Law Review note, which the majority opinion in Gault cited with some fre- quency, is the Denver experience. There, only two requests for jury trials were made during a 25 year period and both requests were withdrawn before the trial.** It is only fair to note, however, that the number of demands for jury trials increased perceptibly, at least in the District of Columbia, following this Court’s decision in Gault, which, for the first time, guaranteed a juvenile the right to be represented by counsel either engaged by his parents or appointed by the court in the event they were indigent. In the District of Columbia three jury trials were held between 1964 and 1966, 11 jury trials in 1967 and 32 in 1968.% However, at the hearings on the District of Columbia Crime Bill, the De- partment of Justice reported that at ‘the end of fiscal 1969 there were 290 juvenile court cases awaiting jury trial in the D. C. Juvenile Court.”°” The change in statistics furnishes ¥ Sheridan, Standards for Juvenile and Family Courts, U.S. Dept. of Health, Education and Welfare 73 (1966); see also Senate Hearings, note 17, supra at 1835-36. SNote, Juvenile Delinquents: The Police, State Courts and Individ- ualized Justice, 79 Harv. L. R. 775, 794 (1966). Annual Report of the Juvenile Court of the District of Colum- bia, Fiscal Year 1968, p. 9. 3"Senate Hearings, note 17, supra at 1804. 26 no argument in support of the proposition that fundamenta] fairness requires a jury trial. Yet it does suggest, however, that if the jury trial right is fastened on the juvenile court system, lawyers will not hesitate to invoke it with ever. increasing frequency.** There is, then, no case which can be made for requiring the jury trial in juvenile court proceedings on the basis either of tradition or of its widespread use in the juvenile court systems of the various States. Likewise, the proposi- tion cannot be bolstered—in contrast to the case for the use of the reasonable doubt standard—by any argument that it is required as “‘a prime instrument for reducing the risk of con- victions resting on fundamental error” and preserving “the presumption of innocence.” Jn Re Winship, supra at 363. Indeed, as a result of the Winship case, juvenile court judges now must apply the reasonable doubt standard in any adju- dication of delinquency in the future. The injection of a jury trial requirement would neither make nor mar that duty of the juvenile court judge. It was partially for that very reason that the Congress repealed the jury trial requirement for the District of Columbia. As the Senate report stated: “The Senate District Committee has concluded, again, that, inasmuch as the bill as reported pro- | vides a sufficiently high standard of proof for fact- finding, the option of trial to a jury is both unnec- essary and ill-advised. It is readily apparent that trial to a jury is the least expeditious means of fact- 38 Also illustrative of the impact of the Gault requirement that lawyers must be provided in juvenile court cases is the report which the National Council on Crime and Delinquency has received from the Juvenile Court in Denver where, as noted supra, p. 25, jury trials formerly were very rarely requested, but where in the first four months of 1970 requests for jury trials were made in 54 of 58 pending delinquency petitions. Letter from Judge Ted Rubin, Judge, Juvenile Court, Denver, Colorado, to the Associate Counsel, National Council on Crime and Delinquency, May 12, 1970. a 8&warast FS & we BES 2EESSE 27 finding. At the same time, the therapeutic need for expedition is especially great in a system devoted to impressionable juveniles; and expedition is indeed especially important in a system purported oriented in its entirety to therapy or treatment.”*° Moreover, whatever its failures have been, the juvenile court system was in the beginning and remains now a unique system of individualized justice whose purpose “‘is remedial and to a degree preventive rather than punitive.” Putting all labels aside, the juvenile court system, like American ad- ministrative law, is something different from what existed before. Its origins are not on the criminal side; nor can its proceedings be characterized merely as “civil”. And while the founders of the juvenile court may have found prece- dents for what they created in chancery cases, juvenile courts were not derived from the English Courts of Chancery ! They were and remain special statutory courts having juris- diction over certain causes and as such have their own pro- cedure adapted to the type of case heard.*? Thus, the juve- nile court system, like administrative law, is sui generis, finding analogies for the procedures it observes in other areas of the law, but maintaining its own unique nature specially fashioned in order to achieve the particular purposes for which it was created. Could it be seriously maintained, for example, that the failures or injustices occurring in the fact- finding procedures of federal and state administrative tribu- nals exercising important quasi-judicial powers justify im- posing upon them the traditional factfinding prerequisites of the common law system? It is no more persuasive to urge that failures of the juvenile court system, due mainly to the lack of public and private resolve in providing the support Senate Report No. 91-620, 91st Cong., Ist Sess., December 18, 1969, p. 13. “Standards for Juvenile and Family Courts, supra, 1 (1966). *!Pound, Interpretations of Legal History 135 (1923). *2Note 40, supra at 71. Se — 28 and in approving the funds necessary to implement that re. solve, require constitutional changes in the factfinding pre. requisites to be observed in that court. Finally, before transferring the jury system in toto to the juvenile court, some consideration should be given to the relative merits of jurors, as opposed to judges, as instruments of fair and effective factfinding. Rhetoric aside,* it is sti possible to define the concrete bases asserted to justify the existence of the jury trial as an essential component of the American system of justice. It is said to be effective asa factfinding mechanism.“ However, the recent University of Chicago jury trial study shows that judges and juries agree on the proper disposition of criminal cases in 75.4% of the cases studied.*5 This pattern of agreement is strong evi- dence that juries are not significantly better equipped to find the facts than judges are. The same point has been made by some state courts in rejecting the constitutional necessity for a jury trial in juvenile courts.*° It has also been argued that the right to a jury trial “was clearly intended to protect the accused from oppression by the Government... .”*’ Yet past intentions should be read in the light of current realities. Or as Mr. Chief Justice Burger has said: «|. a government bent on destroying individual lib- erties can do it with a jury or with a non-jury inquiry system. You can juggle any system if you've got enough power in the establishment to do it.” *3For one of the stronger criticisms of our traditional jury system, see Frank, Courts on Trial 32 (1949). “4Dorsen and Rezneck, supra at 23. 4SKalven and Zeisel, The American Jury 56 (1966). 46Dryden v. Comm., 4 Cr. L. Rep. 2253 (Ky. Ct. App., 1968). *7Singer v. United States, 380 U.S. 24, 31 (1965); Duncan v. — Louisiana, supra at 155. 481 The Center Magazine 7, November 1968. ee — Oe es es 2 2 rs ee) 8). 29 Juries have, it has been said, a virtue in that they may “afford a higher justice by refusing to enforce harsh laws. . . .'*? Still, the jury that is flexible or non-rule minded enough, or not sufficiently cognizant of its oath, to acquit in one case may in a later case convict on whimsy, too.*° Then again, juries are said to be a buffer against the “over- worked judge”®' who will give a case the assembly line treatment, or ‘‘as a protection against jaded judge- who hear case after case, day in and day out and decide on past prejudices rather than present evidence.”*? Such generali- ties are more epigrammatic than informative. Whereas some juvenile judges are bound to be insensitive, others are equally certain to be compassionate and experienced. The experi- ence of trying cases is not always a debilitating influence upon good and conscientious judges. It may also awaken in them responses and sympathies which no amount of theo- rizing would loose. In any event, any seasoned trial attorney knows that juries quickly become jaded, too. Witness, for example, the jockeying with the criminal trial calendar on the part of defense counsel in order to avoid the adverse im- pact of a trial before a jury soured by one month’s experi- ence in court. Or as Kalven and Zeisel have put it, “Somehow the combination of official role, tradi- tion, discipline, and repeated experience with the task make of the judge one kind of decider. The perennial amateur, layman jury cannot be so quickly domesticated to official role and tradition; it re- mains accessible to stimuli which the judge will ex- clude.”’5? “Duncan v. Louisiana, supra at 187 (Harlan, J. and Stewart, J. dissenting). 5°Kalven and Zeisel, supra at 9. ‘'Dorsen and Rezneck, supra at 23. ‘2Cyiminal Offenders in the Juvenile Court: More Brickbats and Another Pi »posal, supra at 1187. *3Kalven and Zeisel, note 45, supra at 498. — 30 In recognition of this sometimes heated and almost never empirically valid debate, where hyperbole abounds, over the merits of the jury system, it would be anomalous to import the jury trial wholesale into the juvenile court on the theory that it is so fundamental to our way of justice as to be im. perative in the juvenile court as elsewhere. Whatever the stature of the jury trial in criminal causes, this amicus main. tains that its desirability in other proceedings is sufficiently debatable to preclude accepting its status as a fundamental necessity required by due process in juvenile court proceed. ings. C. Imposition of a Jury Trial Requirement Would Carry Adverse Practical Consequences for the Efficient Operation of the Juvenile Court System. As argued, neither fundamen- tal fairness, any continuing national tradition nor universal practices observed in the States can be summoned to sup- port the existence of a constitutional right to a jury trial in the juvenile court. Beyond these pertinent considerations, however, the practical consequences that would ensue if such a jury trial is to be required furnish an additiona! strong de- terrent to requiring such a drastic change in the proceedings of the Nation’s juvenile courts. First, if the jury trial is injected into the juvenile court system as a matter of right, along with it unfortunately will come the traditional delay, formality and inevitable “clash and clamor’®* of adversary proceedings with which adult jury trials are so frequently permeated. The Congress very recently indicated its awareness of these unfortunate ac- couterments of a jury trial imposed on juvenile court pro- ceedings when it eliminated the ‘“‘cumbersome and inappro- priate trial by jury” formerly required by statute in the District of Columbia. (Emphasis supplied).55 Noting the 54 Dryden v. Comm., note 46, supra. 55Senate Report No. 91-620, note 39, supra at 1. ver he ort ny im- the in- tly tal ed- 31 “delay in juvenile proceedings [which] operates to the detri- ment both of the community and of the child”, the Senate District Committee recommended, and the Congress ap- proved, abolition of the jury trial in the District of Colum- bia Juvenile Court as the backlog of jury cases in that court edged past the 300 mark.°® The Senate conferees on the District Crime Bill, reporting back to the Senate after the Conference Committee had reached agreement in recom- mending approval of the legislation, made the practical argument against the juvenile jury trial in strong terms, say- ing: “Pursuant to the conference report on S. 2601, jury trials are no longer to be allowed in juvenile proceedings; however, the standard of proof for purposes of factfinding in delinquency proceedings is raised from by a preponderance of the evidence to beyond a reasonable doubt. In the view of the con- ferees, the reasonable doubt standard renders jury trial unnecessary as protection against judicial pre- disposition. Equally important, again in the view of the conferees, the jury has no function to exercise as a buffer of broad community judgment between the accused and some prescribed statutory punishment (that is, a specific range of penalties), since under the juvenile code there are no prescribed punishments, as such; disposition, treatment, in juvenile proceed- ings uniquely lies, and in theory is intended to lie, within the sole discretion of the judge. In the view of the conferees, any benefit lost in the elimination of jury trials is more than offset by the gain in ex- pedition essential in juvenile cases. It is the case, furthermore, that jury trials may prove unnecessa- rily traumatic for the immature persons, children, in the juvenile system. Also, a peculiar need for ex- pertise i. factfinding may arise in juvenile proceed- ings as the testimony of juvenile parties and wit- “Ibid. at p. 6; Senate Hearings, note 17, supra at 1804. CE 32 nesses must be assessed from the often unusual juvenile perspective.*” Indeed, both friends and foes of proposals to cut back some of the procedural protections enjoyed by the crimj- nally accused agree on one point—that is, the extended delays which now occur between a criminal charge and the final disposition of that charge, at least in a great majority of the larger urban jurisdictions of the Country, are an abomino. tion, unfair to many defendants and frequently gravely harmful to the peace and security of law-abiding citizens Beyond dispute, the jury trial requirement is a partial, but substantial, contributing factor to such delay. Do we really wish to import the jury trial and its propensity for invidious delay into the juvenile court system, a system which, if it is to work at all, must set in motion at the earliest possible moment whatever special facilities and techniques it may have for the counselling, treatment, rehabilitation and re. form of a troubled child? The Council believes that the answer to the not-o- rhetorical question posed immediately above is obvious, Others, however, purport to read a contrary message in this Court’s opinions in Gault and Winship, supra, where procedural rights required in adult criminal proceedings were held to be constitutional prerequisites for juvenile court ad- judications. The amicus will not repeat the analysis of those two decisions which it made earlier in this brief. It is suf- ficient to say that as to Gault the minimal procedural rights which the Court required in that decision are basic and fun- damental, not only in criminal, but also in a great majority of civil and administrative, proceedings. Indeed, they are the sine qua non of any fair adversarial hearing within the mean- ing of the Anglo-Saxon tradition. But the procedural evils at the cure of which Gault was directed are not affected by | substituting a jury of laymen for an experienced juvenile 57Statement of the Managers on the Part of the Senate Regarding Conference Action on S. 2601, Committee Print, 91st Cong., 2d Sess., July 15, 1970, p. 19. 5 tl es a -— « —_ = wo OS aS oos# ™» Tt a oe ails a 33 court judge. This is especially true now that this Court has determined that the factfinder in a juvenile court proceed- ing must apply the reasonable doubt standard rather than the preponderance of evidence standard of proof. Nor, as we have attempted to show, does the Court’s de- cision in Winship, supra, argue in favor of the result sought by the petitioners here and the appellants in McKiever. As previously stated, Mr. Justice Brennan, speaking for the Court in Winship, was careful to point out that the rea- sonable doubt standard would not have “any effect on the informality, flexibility or speed of the hearing at which the factfinding takes place.”” 397 U.S. at 366. We suggest that no one rationally can make that statement with respect to the imposition of the jury trial requirement in juvenile court proceedings. Apart from the delay factor which, by itself, should deter the Court from requiring a jury trial in juvenile court pro- ceedings, there are other significant practical considerations which argue against its imposition. For one, a jury trial in the juvenile court, by replacing the judge as the finder of fact, will require substantial alteration of the traditionai practice observed in that court. As he becomes of necessity areferee in a contest between the state and one of its juvenile citizens, and deprived of the power of being the final arbiter of fact, the juvenile court judge will have to concern himself much more with the technicalities of procedure, with the consequently reduced capacity to guide and mold the hear- ings. Hearsay evidence, for example, now admissible in judge- conducted delinquency adjudications would probably have to be excluded where a jury sits in judgment in the juvenile court. ‘Secondly, there is the matter of the “public trial” re- quired by the Sixth Amendment to the Constitution of the United States. Even today, among those 11 States which provide opportunity for a jury trial in juvenile court, only four permit open or public hearings, and even in these four there are provisions for closing the hearing when felt neces- 34 sary in the discretion of the court. Senate Hearings, not 17, supra at 1835. The Council has grave doubts that anyone in this day of the widest possible news coverage by the com. munications media can point to any salutary effects—either from the point of view of the juvenile or from that of soci. ety—to be achieved by making adjudications of juvenile de. liquency public proceedings. Nor is it any answer to the obvious to say that the juvenile can waive his right to a pub- lic trial. The very facts of the case at bar show what little control the juvenile has over protecting his privacy when other forces, including less than reticent counsel, are ip. clined in the other direction. If a juvenile court delinquency hearing is to be made a public matter, this Court truly wil have supervised the complete conversion of the juvenile court into a court which, so far as its disposition procedures are concerned, is exactly identical to its adult criminal court counterpart. That result would, in the judgment of the Council, be deplorable. Then, there is the further concern that the right to a jury trial does not travel without its necessary impedimenta® These may have a constitutional dimension, if the right to jury trial does so. For example, will the jury verdict have to be a unanimous verdict, as suggested by the appellant in DeStefano v. Woods, 392 U.S. 631 (1968)? How representa- tive must the jury be? In point of fact can it be representa- tive, since by law in most jurisdictions persons under 21 can- not serve on juries? Amicus mentions these troublesome peripheral issues only to emphasize that any declaration that there is a constitutional right to a jury trial in juvenile court proceedings inevitably will introduce other trouble- some questions which will put the juvenile court to the test as much as they will this Court. Finally, there is the necessary formality that inevitably accompanies a jury trial. It may be that the informality of S8Bi00m y. Illinois, 391 U.S. 195, 213 (1968) (Fortas, J. concur ring) ae a Oe Oe ee ae ae o = a Me Me a eM Mk Me =a 35 the juvenile court is not an unmixed blessing,*? but it does have certain positive advantages for the juvenile. It frustrates the urge of the youth for notoriety and attention © It re- moves some portion of the stigma of criminality,®' and it softens the impact of charge, trial and disposition upon an impressionable youth. There may be some doubt, resulting from an empirical void, as to the exact nature of the rapport between judge and juvenile, as to the extent to which a jury trial may have a traumatic effect of any substantial duration upon the ju- yenile. Yet, it is reasonably clear that “tearing the ‘socia- lized’ procedure out of our [juvenile court] system is not a great leap forward . . ."*? for the juvenile. “For children who are receiving the ‘worst’ of both worlds, it is no great achievement to brighten the one that may not matter as much to them.”’® Finally, the juvenile court is not the only quasi-criminal tribunal with the power to institutionalize persons without engaging in a trial by jury. Sex psychopath laws often have the same effect. Mental commitment procedures are well- known and frequently used illustrations of such authority to cause loss of liberty. Even in criminal proceedings, there might well be pre-trial hearings on an issue of the accused’s competency to stand trial with a resulting long-term depriva- tion of liberty. And in the juvenile court, in dependency cases a similar consequence often follows from a jury-less proceeding. A decision in this case requiring a jury trial in S9Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 7, 19; Note, Rights and — in the Juvenile Courts, 67 Colum. L. Rev. 281, 284 - Tappan, Juvenile Delinquency, supra at 146. Rubin, Crime and Juvenile Delinquency 66 (1958). ®2Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, The Supreme Court Review 167, 192 (1966). S3Handler, The Juvenile Court and the Adversary System, note 59, supra at 32. ort (ENS + ee eee SNR tee ee - one 36 the juvenile court could have a domino-like effect upon Other proceedings which entail confinement and loss of liberty, Such possible consequences should not be discounted in ar. riving at a conclusion on the merits of the jury trial issue posed in this case. For all these reasons, the Council urges that the Court not find that due process of law requires the imposition of a jury trial right in juvenile court adjudications of delinquency, However, the Council would like to point out that it is not opposed to state statutes which permit a jury trial in the dis. cretion of the court. Such provisions permit the holding of g jury trial in a serious case where unavoidable prehearing press reports have directed public attention to the case and where the juvenile protests his innocence of the grave act with which he is charged. This, however, is the compar tively rare situation and can be accommodated by statutory provision without imposing the jury trial as a constitutional prerequisite in the other 99% of juvenile court cases. EQUAL PROTECTION OF THE LAWS IS NOT OFFENDED BY DENYING A JURY TRIAL TO A JUVENILE The record in this case, as well as that in McKiever, does not indicate that the juvenile petitioners expressly asserted in the courts below any constitutional claim that denying them a jury trial constituted a violation of the Equal Pro tection Clause of the Fourteenth Amendment. Still, the issue is not completely free from doubt. In the prior case of DeBacker v. Brainard, supra, which the Court heard in its 1969 Term, several of the Justices inquired of counsel con- cerning possible equal protection implications if a jury trial is denied a juvenile in a proceeding in which he is charged with delinquency. Accordingly, the amicus believes that the equal protection question, whether formally preserved for decision in this litigation or in McKiever, merits at least some brief attention. eS FC aS SE i eas i | ee ee eee ee ee ee, | ee 37 Respondent North Carolina has cited illustrative instances in which the law does not treat children on an equal footing with adults. Children, the respondent notes, are required to obey their parents, are not allowed to vote, are not allowed to drive automobiles, cannot bind themselves by contract, are not allowed to sit on juries and are required to attend school. All these distinctions in the treatment of children in the law are long established and well accepted. Of course, it might be said that such distinctions are either for the pro- tection of the child or are imposed out of an awareness that the immaturity of youth precludes, at least in the great majority of cases, possession of the necessary wisdom, dis- cretion or maturity of judgment required to permit the juvenile to exercise particular privileges enjoyed by adults, such as, for example, the right to vote or the right to sit on juries. Still, in all these situations it is the condition of being , child and the presumption of immaturity which attaches to that condition which both explains and justifies the dif- ference in the law’s treatment of the juvenile as opposed to the adult.” Nevertheless, it might fairly be asked, is that condition a convincing basis for denying a juvenile the alleged protections of a jury trial—a right which an adult enjoys and a right, it might be maintained, which is for the juvenile’s protection and the exercise of which is not beyond his wisdom or judg- ment to invoke intelligently? There are several answers to the assertion of such an equal protection claim for a juvenile’s jury trial right. In part, they are the same answers which the amicus has given to the ques- tion of whether due process requires affording the juvenile a jury trial right, viz: (1) the jury trial right, at least in the overwhelming run of cases, will not confer any significant benefit, but may work some substantial disadvantage, to the juvenile; (2) the entire juvenile court system, including the majority of juveniles who are confronted with charges of “Young, The Constitution and the Juvenile Court—Letter or Spirit, 44 Jour. of the Am. Jud. Soc. 94, 97 (1960). } ; i ; 38 delinquency, would be adversely affected by the substantig delay introduced into that system if a jury trial is to be mp. quired; and (3) even the most fundamental of constitutiong| rights, including the right to free speech and the free eXercisg of religion, no less than the right to a jury trial, may be p. stricted when necessary for the long run protection of child. ren, whatever short-run advantage may be thought to b& provided in a particular case by the full grant of such right; to the juvenile. Thus, in essence, the same reasons which justify the conclusion that denial of a jury trial in a juvenile court proceeding does not deserve censure under the Due Process Clause also serve to prevent its condemnation as a violation of the Equal Protection Clause. At the root of both con- clusions is the ancient assumption, overwhelmingly supported by the teachings of psychology, biology, physiology, socio- logy and ordinary human experience, that a child is not the same as an adult. Therefore, treating him as a child and not as an adult is not unconstitutional, provided that he is treated fairly. Denying him a jury trial is not treating him unfair. and the difference in such treatment is not one condemned by the Constitution of the United States. CONCLUSION For the reasons stated in this brief, the amicus urges the Court to affirm the decision of the North Carolina Supreme Court in this case and that of the Pennsylvania Supreme —— nce 7 39 ee ce Court on appeal in McKiever v. Commonwealth of Pennsyl- yania, No. 322. Respectfully submitted, ALFRED L. SCANLAN MaRTIN J. FLYNN i 734 Fifteenth Street, N.W. Washington, D.C. 20005 JAMES E. STARRS Of Counsel: George Washington University Law Center SHEA & GARDNER 2000 H Street, N.W. 734 Fifteenth Street, N.W. Washington, 9.C. 20006 Washington, D.C. 20005 Attorneys for the National Council of Juvenile Court August 12, 1970 Judges a nae TAT SBA B © . ; ; ‘ ; | Re ee INDEX Page Opinions ia cS ahh. cas Akh een cae cce DI At hs ORS eee 1 a iar esitirinasinckcernpenasincceh ca Sovepndannsosnaseinbapias 1 TTI ons .CLUSION Finally, respondent contends that the decision in this case should turn upon this Court’s answer to the following ques. tion: “Whether the presence of the jury in a juvenile case con. tributes to a significantly substantial reduction in possible margin of error so as to outweigh the possible harm to the child from participation in such a trial, and the disruption of the juvenile system as conceived?” We contend it does not. The crucial distinction between juvenile loss-of-liberty cases and adult loss-of-liberty cases is that the juvenile law is deal- ing with a child and not with an adult. The difficult problem, therefore, is whether this Court can give the child all the rights of an indicted adult without at .he same time abandoning the the residual validity of the parens patriae concept of juvenile justice. The respondent earnestly contends that the difference between a child and an adult justifies constitutionally the present-day difference in fact finders. udi. for eve Wn ring tly uld the lied Tec. FarRre & gem coe, $1 Respectfully submitted, ROBERT MORGAN Attorney General of North Carolina RALPH MOODY Deputy Attorney General ANDREW A. VANORE, JR. Assistant Attorney General DONALD M. JACOBS Staff Attorney --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0313%3A03. Public record. Not legal advice.