Amicus Curiae Brief — In re Burrus

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SEP 19 1970

E. ROBERT SEAVER, OL gtk

In Re Barsara Burevs, et al.,

Petitioners.

On Writ of Certiorari to the Supreme Court of North Carolina

e

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Brief for the People of the State of California

Amicus Curiae

in Support of Respondent

Tuomas C. Lyncu

Attorney General of the State

of California

Axsert W. Harris, JR.

Assistant Attorney General

Deracp E. GRaNBERG

Deputy Attorney General

Guori F. DeHartr

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: 557-0799

Attorneys for the People

of the State of California

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

enh ee

-

TOPICAL INDEX

Interest of Amicus Curiae

Argument

A Legislative Decision That a Judge Rather Than a Jury Shall

Be the Finder of Fact in a Juvenile Proceeding, Whether or

Not the Adjudication Is Concerned With Conduct Which

Violates the Criminal Law, Does Not Violate the Rights of

Juveniles Under the Sixth and Fourteenth Amendments......

A. Juvenile Court proceedings are neither “criminal” nor

“eivil” but are unique proceedings which require pro-

cedures appropriate to the special problems involved...

B. Trial by jury is not constitutionally required as essen-

tial to due process in a juvenile case.

Conelusion

13

TABLE OF AUTHORITIES CITED

CasEs

Baldwin v. New York, 399 U.S. 66 (1970)

Berman v. Parker, 348 U.S. 26, 32 (1964)

Bloom v. Illinois, 391 U.S. 194 (1968)

Commonwealth v. Johnson, 211 Pa. Super. 62, 234 A.2d 9

(1967) 16,17

DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508, 519

(1968)

Dryden v. Commonwealth, 435 S.W.2d 457 (Ky. 1968)

Dunean vy. Louisianu, 391 U.S. 145 (1968)

Estes v. Superior Court, 4338 P.2d 205 (Wash. 1968)... 4

In re Agier. 15 Ohio App.2d 240 (1968) 16

In re Castrv, 243 Cal.App.2d 402, 406-07, 52 Cal. Rptr. 469

(1966) 10

In re Dennis M., 70 Cal.2d 444, 456-57, 75 Cal. Rptr. 1, 8,

450 P.2d 296, 303 (1969) 12, 18, 16

In re Gault, 387 U.S. 1 (1967)....4, 6, 7, 8, 9, 12, 13, 16, 17, 19, 21, 22

In re Raner, 59 Cal.2d 635, 381 P.2d 638, 30 Cal.Rptr. 814

(1963)

In re Winship, 397 U.S. 358 (1970)

Kent v. United States, 383 U.S. 541 (1966)

Minnesota v. Probate Court, 309 U.S. 270 (1940)................. an

Nieves v. United States, 280 F.Supp. 994 (S.D. N.Y. 1968)...

People v. Dotson, 46 Cal.2d 891, 895, 299 P.2d 875 (1956)...

Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968)...

Shone v. State, 237 A.2d 412 (Maine 1968)

Specht v. Patterson, 386 U.S. 605 (1967)

TasLz or AuTHoritms Crrzep

STaTUTES AND AUTHORITIES

State of California :

Statutes 1967, ch. 507, 1355, 1356

United States Constitution :

Sixth and Fourteenth Amendments.

Welfare and Institutions Code :

$§ 600, 601, 602, 708, 704, 705, 707, 725-30, 731, 775-79,

780, 1004, 1176-79 1, 2, 10, 11

Annot. 100 A.L.R.2d 1241 (1968) 16

Antieu, Constitutional Rights in Juvenile Courts, 46 Cornell

L.Q. 387, 399-400 (1961) 16

Comment, The Juvenile Court Revolution in Washington, 44

Wash. L. Rev. 421, 432-33 (1969) 21

Dorsen & Rezneck, Gault and Juvenile Law, 1 Family Law

1, 22-23 (1967) 16

North Carolina General Statutes :

§§ 7A-286(4), 110-29, 110-32. 4

Paulsen, Fairness to ths Juvenile Offender, 41 Minn. L. Rev.

547, 559 (1957) 16, 22

Report of Governor’s Special Study Commission on Juvenile

Justice Part II at 19 14

The President’s Commission on Law Enforcement and the

Administration of Justice, Task Force Report; Juvenile

Delinquency and Youth Crime 207, 38 (1967).......... ..8, 14, 15, 19

Welch, Kent v. United States and In re Gault Two Decisions

in Search of a Theory, 19 Hastings L.J. 29 (1967)... 7, 20

Iw Re Barpara Burrus, et al.,

Petitioners.

On Writ of Certiorari to the Supreme Court of North Carolina

Brief for the People of the State of California

Amicus Curiae

in Support of Respondent

INTEREST OF AMICUS CURIAE

The People of the State of California have a substantial

interest in the question of whether a juvenile is entitled

to a jury trial in a juvenile court proceeding to determine

the facts upon which jurisdiction of the juvenile court is

based. Under the California Juvenile Court Law,’ there is

no provision for a jury trial; the determination of the facts

1. Calif. Welf. & Inst. Code §§ 500-945. See also Welf. & Inst.

oe 1000-1258 (Institutions for Delinquents) ; Welf. & Inst.

e

§ 1700-1861. (The Youth Authority)

2

which bring a juvenile within the jurisdiction of the court

is made by the juvenile court judge.

Under California law, the jurisdiction of the J uvenile

Court is exclusive for children under 16 (Calif. Welf, &

Inst. Code §§ 604(a), 707); it is initially exclusive for

children between 16 and 18, with transfer to the criminal

courts in the discretion of the judge pursuant to statutory

procedures (Calif. Welf. & Inst. Code §§ 604(a), 707 ); and

it is concurrent for minors between 18 and 21 (Calif. Welt,

& Inst. Code §§ 600-602, 604(b)). In the latter case, although

the county probation officer or district attorney may haye

initial discretion in selecting the court, the final deter nina.

tion is the responsibility of the juvenile court judge or the

criminal court judge. Calif. Welf. & Inst. Code §§ 604(b),

707.

California Welfare and Institutions Code Section 701

provides that the judge must first conduct a hearing to

determine whether the minor (a person under 21) isa

neglected, potentially delinquent or delinquent child, as

described by sections 600, 601 or 602 of the Welfare and

Institutions Code.”

If the court makes a finding that the minor comes within

its jurisdiction, it then conducts a dispositional hearing

(Welf. & Inst. Code §§ 702, 706). The court has various

alternatives in treating the minor, some of which are

2. Under section 600, a dependent child of the court is one who

is without a parent or guardian to exercise care or control ; who is

destitute or not provided with the necessaries of life, or whose

home is unfit ; or who is physically dangerous because of deficiency

or disorder. Under section 601, a ward of the court is one who is

generally speaking, beyond his parents’ control, an habitual tru-

ant, or in danger of leading inter alia, an immoral life. Under

section 602, a ward of the court is one who violates a law, or a

court order under section 601.

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3

dependent on the section giving rise to jurisdiction. See

Calif. Welf. & Inst. Code §§ 725, 726, 727, 730, 731.

Among the alternatives for minors coming within section

602 and for those within section 601 if further procedures,

including a hearing, have been taken, is commitment to the

California Youth Authority (Welf. & Inst. Code §§ 730,

731, 777) which has jurisdiction over educational train-

ing and treatment institutions maintained as correctional

schools. See Welf. and Inst. Code § 1000. The court may

also utilize the resources of the Department of Mental

Hygiene, the Youth Authority, and public or private

agencies or doctors for diagnostic medical, or psychiatric

services, treatment or recommendations. See Calif. Welf.

& Inst. Code §§ 703, 704, 705, 739, 740, 741. In any case,

the commitment or disposition made by the juvenile court

may be reviewed and modified at any time. See Welf. &

Inst. Code §§ 729, 775-779.

The California Juvenile Court Law establishes a compre-

hensive and carefully planned system for the rehabilita-

tion, treatment, and when necessary, for the incarceration

of minors found to need such care after careful and com-

plete adjudicatory and dispositional hearings. We believe

that the provision for hearing by a juvenile court judge

rather than a jury fully protects the child’s rights to due

process in such proceedings.

We appear before this Court as amicus curiae to uphold

the validity of such a legislative standard established as

part of comprehensive proceedings, which are neither crim-

inal nor civil, but sui generis, designed to deal with the

problems of juvenile delinquency, potential delinquency

and neglect in a rational and humane manner.

Petitioners in this case were brought before a District

Court in North Carolina upon petitions alleging each to be

a child “in need of the care, protection or discipline of the

State” because of acts in violation of the law, and request.

ing that the court hear and determine the case and if

necessary give each child “such oversight and control as

will promote the welfare of such child and the best interest

of the state.” A 2-53. Following hearings at which jury

trials were requested and denied, the court made findings

of fact which brought petitioners under the jurisdiction

of the court. The disposition of each child, after modifica.

tion on appeal to conform to North Carolina law, was

probation, with conditions, for either 12 or 24 months?

Petitioners argue that because they were “subject to

incarceration for periods of from six to ten years,” the

conclusion that they have a constitutionally guaranteed

right to jury trial is compelled by the decisions of this

Court establishing that juveniles must be afforded due

process, Jn re Gault, 387 U.S. 1 (1967), and that adults

3. Such probation may be modified or revoked during the pro-

bationary period at which time the child could be committed or

other disposition made. See, e.g. A-51; A343-44; N.C. Gen. Stat.

§§ 110-29, 110-32 (Brief for Petitioners at 48-52). One of the dis

itional alternatives is commitment to the Carolina Board of

uvenile Corrections for assignment to an appropriate facility for

an indefinite term not extending beyond the child’s eighteenth

birthday unless the child is engaged in a vocational training pro-

gram. Release may be made at any time the Board determines that

the Sa is ready. N.C. Gen. Stat. 7A-286 (4) (Brief for Petitioners

at 40-41).

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5

have a right to a jury in trials which may result in a

“serious infringement of personal liberty.” Duncan v.

Louisiana, 391 U.S. 145 (1968); Bloom v. Illinois, 391

US. 194 (1968). Brief for Petitioners at 9. We submit that

neither the decisions of this Court nor reasoned analysis

compel such a conclusion. The rigid application of adult

criminal trial procedure to juvenile proceedings will result

not in greater protection of the juvenile but in the destruc-

tion of a viable and developing juvenile court system.

A. JUVENILE COURT PROCEEDINGS ARE NEITHER “CRIMINAL” NOR

“CIVIL” BUT ARE UNIQUE PROCEEDINGS WHICH REQUIRE PRO-

CEDURES APPROPRIATE TO THE SPECIAL PROBLEMS INVOLVED.

In Kent v. United States, 383 U.S. 541 (1966), and In re

Gault, supra, this Court established the principle that a

juvenile, no less than an adult, is entitled to due process

in any proceeding which may result in the denial of sub-

stantial benefits or in his incarceration for a significant

period of time. In Kent, interpreting the Distirict of Co-

lumbia Juvenile Court Act “in the context of constitutional

principles,” this Court held that the exercise of the Ju-

venile Court’s discretion to waive its exclusive jurisdiction

was so “critically important” to the minor that he “was

entitled to a hearing, including access by his counsel to the

social records and probation or similar reports which pre-

sumably are considered by the court, and to a statement

of reasons for the Juvenile Court’s decision.” Jd. at 577.

The reason this waiver of jurisdiction was so critically

important was because of the special rights and immuni-

ties conferred on the minor by statute:

“He... is shielded from publicity. He may be confined,

but with rare exceptions he may not be jailed along

with adults. He may be detained, but only until he is

21 years of age. The Court is admonished by the statute

to give preference to retaining the child in the

of his parents ‘unless his welfare and the safety ang

protection of the public cannot be adequately

guarded without . . . removal.’ The child is protected

against consequences of adult conviction such as the

loss of civil rights, the use of adjudication against him

in subsequent proceedings, and disqualification for

public employment.” Jd. at 556-57.

Although basing its decision on the benefits conferred, the

court in Kent expressed some misgivings about the actual

performance of Juvenile Courts, and raised doubts as to

whether this performance “measured well enough against

theoretical purpose to make tolerable the immunity of the

process from the reach of constitutional guaranties avail.

able to adults.” 7d. at 555.

In Gault, this Court reached some of the questions raised

but not answered in Kent, and held generally that pro-

cedural due process could not be denied a juvenile merely

by classifying juvenile court proceedings as “civil” in ng.

ture. This Court went on to hold that certain procedural

protections were essential requirements of due process

in an adjudication hearing which could result in the in

carceration of the juvenile: Notice, right vo counsel, right

to confront witnesses, and right against compelled self-

incrimination.

The doubt expressed in Kent as to the performance of

the juvenile court system was expressed in stronger terms

in Gault. Where the emphasis in Kent was on the benefits

of the juvenile court system which were taken from the child

without “due process,” the emphasis in Gault appeared to

shift to the deficiencies of the juvenile court system. “The

essential difference between Gerald’s case and a normal

criminal case is that safeguards available to adults were

7

discarded in Gerald’s case.” Id. at 29.4 Even so, this Court

reiterated the view put forth in Kent, supra at 562, that all

the requirements of a criminal trial are not included in the

due process required for juvenile proceedings :

“We do not mean. . . to indicate that the hearing

to be held must conform with all of the requirements

of a 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.’ ”

In re Gault, supra at 30.

Subsequent to Gault, this Court again considered the

content of constitutional “due process” in juvenile court

proceedings. In re Winship, 397 U.S. 358 (1970). In Win-

ship, this Court held first that in a criminal trial due proc-

ess required that guilt be established by proof beyond a

reasonable doubt, then determined that juveniles were con-

stitutionally entitled to the same proof standard in juve-

nile court proceedings when charged with violation of a

criminal law. “The same considerations which demand ex-

treme caution in fact-finding to protect the innocent adult

apply as well to the innocent child.” Jd. at 365. This Court

noted that affording juveniles the protection of proof be-

yond a reasonable doubt would not risk destruction of

4. The apparent shift in emphasis may perhaps be explained by

the fact that Gerald Gault was ‘‘incarcerated’’ in a state ‘‘industrial

school’ for the remaining five years of his minority, while the adult

criminal would have been fined up to $50 or imprisoned in jail for

up to two months. Morris Kent, on the other hand, was sentenced

in regular criminal proceedings (with the full panoply of due

process protection) to from 30 to 90 years in prison. Had he been

treated as a juvenile, his ‘‘inearceration’’ would have terminated at

majority, again a period of five years. For a perceptive discussion

of the basically inconsistent approach of these cases, see Welch,

Kent v. United States and In re Gault: Two Decisions in Search

of a Theory, 19 Hastings L.J. 29 (1967).

a

8 =

beneficial aspects of the juvenile process, including the

“informality, flexibility, or speed of the hearing at which

the fact-finding takes place.” Jd. at 366. This Court found

in summation, “the constitutional safeguard of proof be.

yond a reasonable doubt is as much required during the

adjudicatory stage of a delinquency proceeding as ay

those constitutional safeguards applied in Gault—notice of

charges, right to counsel, the rights of confrontation and

examination, and the privilege against self-incrimination”

Id. at 368.

Thus, in Winship as in Gault, this Court held not that

all criminal procedure is applicable to juvenile court pro-

ceedings but rather that due process requires a fair adju.

dication procedure and that this requirement cannot be

evaded by a “civil” label. We are fully in accord with this

flexible approach; even the basic non-criminal character

of juvenile proceedings does not justify arbitrariness ora

denial of fundamental fairness. At the same time, it makes

little sense to turn this Court’s rejection of the “civil” clas.

sification into a mandate to impose a criminal labei, and

thus procedure, on proceedings which remain different in

function, essentially non-criminal in concept and approach,

and which are designed to deal with individuals who have

problems, potential, and a commitment from society sig-

nificantly different from adults.*

Juvenile proceedings are a unique response to a problem

which is exceedingly complex and, while related in some

aspects to the problems of the criminal law, covers areas

of concern solely related to juveniles such as neglect, tro-

5. The history and philosophy of the Juvenile Court system

were reviewed in Gault and Kent. See also, The President’s Com-

mission on Law Enforcement and the Administration of Justice,

Task Force Report: Juvenile Delinquency and Youth Crime 27

(1967).

9

ancy, and incorrigibility. It has been pointed out that the

tion of the state’s concern for and jurisdiction over

children must be answered not by the criminal law, but by

a due process theory that takes account of the qualitative

differences of juvenile law from both criminal and civil

“Tt is submitted that the Court’s decision in Gault

has left latitude for making such a distinctive consti-

tutional determination in a ‘truly noncriminal’ con-

text.” Welch, op. cit. supra, note 4, at 38.

“Tf criminal law procedure importation were to pro-

ceed apace from the Gault decision in total disregard

of any constitutional effect for the special rights and

immunities of juvenile law, as Justice Harlan pre-

dicts, it seems inevitable that ‘rigid procedural re-

quirements may inadvertently . . . [serve] to discour-

___ efforts to find more satisfactory solutions for

the problems of juvenile crime .. . and development

of the systems of juvenile courts.* Were the Supreme

Court to adopt standards for the measurement of juve-

nile court due process which make qualitative differ-

ences in the effects of a delinquency determination and

special treatment essential ingredients, it would en-

sure a potent incentive for a more physically and func-

tionally valid juvenile law system. As it is. the pres-

sure to be very different from the criminal system is

lessened proportionately to the degree of ‘essential’

procedural identity between the two systems.” Jd. at

/ 39.

California, like North Carolina, has established a statu-

tory system for dealing with the problems posed by

juvenile crime, potential crime, various unique juvenile

problems and neglect or need. The non-criminal nature of

juvenile court proceedings is unequivocally stated in sec-

tion 503 of the California Welfare and Institutions Code:

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6. Footnote omitted; quotation from Jn re Gault at 77.

10

“An order adjudging a minor to be a ward of juy.

nile court shall not be deemed a conviction of crime

for any purpose, nor shall a proceeding in the juvenil

court be deemed a criminal proceeding.”

The California courts have consistently reiterated the View

that juvenile proceedings are not criminal in nature but

are proceedings in which the state seeks to relieve th

minor of criminal responsibility and give him direction and

rehabilitation. See, e.g., People v. Dotson, 46 Cal.2d 891,

895, 299 P.2d 875 (1956) ; In re Castro, 243 Cal. App.2d 402,

406-07, 52 Cal. Rptr. 469 (1966).

Under the California Juvenile Court Law, the court has

a wide range of dispositional alternatives to serve these

goals whether the child is neglected (§ 600), potentially

delinquent (§ 601) or has committed acts which are crimes

(§ 602). If the minor comes within section 602 of the Wel.

fare and Institutions Code or if he is within section 601

and further proceedings have been undertaken, one of the

alternatives available to the court is commitment to the

California Youth Authority. See Welf. & Inst. Code §§ 730,

731, 777." The California Youth Authority is an adminis.

trative agency with jurisdiction over educational training

and treatment institutions maintained as correctional

schools.

“Tne Authority shall have charge of the persons

committed or confined in each such institution, and

shall provide for their care, supervision, education,

training, employment, discipline, and government. It

shall exercise its powers toward the correction of their

7. In 1958, Youth Authority commitments on initial petitions

were made in 2.2% of Juvenile Court cases. Report of the Gov-

ernor’s Commission on Juvenile Justice, Part 2, at 19. We are

informed by the Bureau of Criminal Statistics that similar com-

mitments were made in about 1.3% of the cases in 1967, the most

recent year for which such statistics are presently available,

faults, the development of their character, and the

promotion of their welfare.” Calif. Welf. & Inst. Code

§ 1004.

Commitment to the Youth Authority does not necessarily

mean “incarceration” until majority. The Youth Authority

may parole the minors under its charge, and may grant

“honorable discharge” or leave of absence. Calif. Welf. &

Inst. Code §§ 1176-79. Where a minor proves to be so in-

corrigible or so incapable of rehabilitation as to render

his retention detrimental, the minor may be returned to

court, where if over 16, he may be certified to the adult

criminal court for criminal trial with all constitutional

protections. Calif. Welf. & Inst. Code §§ 780, 707. While

commitment is @ dispositional alternative, the court has

available all those dispositions available for both neglected

or potentially delinquent children, including probation with

or without wardship, placement with an individual or

agency for custody and care, or placement in a juvenile

home, ranch or camp. Calif. Welf. & Inst. Code §§ 725-30.

The court also may order medical diagnostic or psychiat-

rie services utilizing both public and private facilities.

Calif. Welf. & Inst. Code §§ 703, 704, 705, 739-41.

Finally, the court may review and modify the commit-

ment or disposition at any time. Calif. Welf. & Inst. Code

§§ 729, 775-79. It should be noted that commitment to a

juvenile home or to the Youth Authority for placement in

a correctional school is not limited to cases where a “crime”

is charged as the basis for juvenile court jurisdiction, nor

is commitment to the Youth Authority reqaired even if

jurisdiction is based on an act which would be a felony if

committed by an adult. The disposition of the child is

based on a full review of his background and problems in-

cluding the specific behavior on which jurisdiction is based.

12

Disposition is not designed to punish the child for fh

behavior; the proceedings of the juvenile court are essen.

tially remedial. In re Dennis M., 70 Cal.2d 444, 456-57, %5

Cal.Rptr. 1, 8, 450 P.2d 296, 303 (1969).

As pointed out by the Supreme Court of California, j juve

nile proceedings so characterized have some apparent sim.

ilarities to proceedings for the involuntary commits

of mentally ill persons and narcotics addicts. In re

M., supra, 70 Cal.2d at 457, n 11. This Court, while demand.

ing that due process be accorded as a constitutional rm

quirement in such special proceedings, has not required al]

the procedures of a criminal trial even though loss of lib.

erty is not just a possibility but an inevitable result, See

Specht v. Patterson, 386 U.S. 605 (1967) ; Minnesota v. Pro.

bate Court, 309 U.S. 270 (1940). Compare In rz Raner, 59

Cal.2d 635, 381 P.2d 638, 30 Cal.Rptr. 814 (1963). Similarly,

the rationale of special juvenile proceedings is that the

juvenile is to be trained and rehabilitated, not punished,

His behavior is a product of his immaturity, and his delin.

quency may be caused or aggravated by factors over which

he has little or no control. In short, he is not being pun-

ished for his conduct; his conduct is symptomatic of a

problem of growth and development which may be amen-

able to treatment, even where he must be incarcerated for

the protection of himself or of society.

“Tt is well settled that the Court must give the wid

est deference to legislative judgments that concern

the character and urgency of the problems with which

the State is confronted. Legislatures are, as this Court

has often acknowledged, the ‘main guardian’ of the

public interest, and, within their constitutional com-

petence, their understanding of that interest must be

accepted as ‘well-nigh’ conclusive. Berman v. Parker,

348 U.S. 26, 32 [1964].” In re Gault, supra, at 70 (Har-

lan, J., concurring and dissenting).

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The fundamental issue is, of course, to what extent this

deference is given where constitutional issues of procedural

jon are involved. While the basic non-criminal char-

acter of juvenile proceedings does not justify arbitrariness

or a denial of fundamental fairness, we urge that it does

justify judicial deference to legislative judgment which

establishes the procedure at issue here as part of a de-

tailed statutory scheme enacted specifically to provide fun-

damental fairness in proceedings undertaken in the child’s

best interests.

oe TRIAL BY JURY IS NOT CONSTITUTIONALLY REQUIRED AS ESSENTIAL

TO DUE PROCESS IN A JUVENILE CASE.

The California Juvenile Court Law was extensively re-

yised in 1961 as a result of recommendations made by the

Governor’s Special Study Commission on Juvenile Justice

in the course of a study of all phases of juvenile justice in

California. The recommendations made were the “product

of an extensive conscientious process of review and reevalu-

ation in which numerous local juvenile and judicial officials

throughout the state actively participated.” Report of the

Governor’s Special Commission on J uvenile Justice, Part I,

at 10. The procedural scheme recommended by the com-

mission and accepted by the legislature did not provide

for jury trial. Despite significant changes subsequent to

Gault, this particular procedural requirement has remained

unchanged.® We submit that reasoned analysis supports the

legislative judgment.

In its 1961 study, the California Commission commented

on jury trial in juvenile cases:

8. As noted by the California Supreme Court in In re Dennis M.

at 453, the California legislature has been fully responsive to Gault

by adopting numerous amendments designed to implement “aulé.

See Calif. Stats. 1967, ch. 507, 1355, 1356.

14 =

“The generally held view, shared by the commission

and all of California’s juvenile court judges, is that

the jury system is incompatible with the Philosophy of

the juvenile court law.” Report of the Governor’s Spe.

cial Study Commission on Juvenile Justice, Part I

at 19.

A survey of 25 judges in the largest California counties

revealed all were opposed to such trials, their comments

suggesting that jury trials would be in conflict with juvenile

court philosophy and would destroy the protective purpose

of the court. It was noted that the puvlicity attracted would

go far to eliminate the confidentiality necessary for effee.

tiveness. Ibid.

To a similar effect is the discussion by the President's

Task Force on Juvenile Delinquency in 1967:

“Most States do not provide jury trial for juveniles,

Even Illinois, New York, and California, which have

recently revised their juvenile court laws to increase

procedural safeguards for the child, have not extended

the right to trial by jury. There is much to support the

implicit judgment by these States that trial by jury

is not crucial to a system of juvenile justice. As this

report has suggested, the standard should be what

elements of procedural protection are essential for

achieving justice for the child without unduly impair.

ing the juvenile court’s distinctive values.

“As has been observed, ‘A jury trial would inevitably .

bring a good deal more formality to the juvenile court

without giving the youngsters a demonstrably better

fact-finding process than trial before a judge.’ The

presence of a jury tends in a number of ways to con-

tribute to an atmosphere of formality. In part, formal-

ity becomes itself an end insofar as it helps instill in

jurors a sense of the seriousness and solemnity of their

duties. Moreover, the presence of a jury affects the

15

whole process of dealing with evidence. Much of the

reason for many restrictive rules of evideace, which

typically give rise to narrow contentiousness over mar-

ginal issues, stems from the felt need to protect

against a jury’s susceptibility to prejudice and irrele-

vancies and its limited ability to distinguish between

the more and less probative. And when a jury is the

es object of an attorney’s persuasion, he naturally re-

ts sponds to what he believes will most effect it, with the

re usual result an emphasis on staging, effect and emotion

xe rather than a more businesslike prescutation.

rl “A further consideration arguing against a jury

arises out of the typically loose and general statutory

r formulations of the behavior that may subject a youth

to juvenile court jurisdiction, particularly iasofar as

s the conduct includes acts other than those that would

be criminal if engaged in by adults: 7.e., incorrigibility,

need for care and supervision, truancy. Inequality and

disparate decisions are invited by giving these formu-

lae to ad hoc juries for application rather than to

judges, who tend inevitably to develop concrete mean-

ings for such terms. If a jury were required, the appro-

priate standard of proof (beyond a reasonable doubt,

preponderance of the evidence, and so forth) would

become a more critical issue.

“As Mr. Justice Cardozo noted, it would not appear

that a fair and enlightened system of justice is impos-

sible without jury trials. ‘This too might be lost, and

y justice still be done.’” The President’s Commission on

Law Enforcement and Administration of Justice, Task

(

a i

Force Report: Juvenile Delinquency and Youth Crime,

at 38 (1967).

- § The courts and commentators which have considered the

issue have disagreed on its resolution, with the better rea-

soned opinions, in our view, taking the position that a jury

16

trial is not an essential part of due process in a Juvenile

proceeding.®

This issue was analyzed at length in Commonwealth»,

Johnson, 211 Pa. Super. 62, 234 A.2d 9 (1967). The Penn.

sylvania appellate court reached the conclusion that jury

trial is not a requirement of due process in juvenile pro.

ceedings.

“In short, those who find in Gault the obliteration of

any distinctions between the treatment accorded jy.

veniles and adults are reaching a conclusion that is m.

warranted. It is clear to us that the Supreme Court

has properly attempted to strike a balance by injecting

procedural orderliness into the juvenile court system,

... It has not suggested that we discard the flexibility

which has long been the hallmark of juvenile conrts,

but that we temper it with certain procedural safe.

guards.” 234 A.2d at 15-16.

The court viewed Gault as an

“invitation to formulate a court procedure which will

combine the best aspects of juvenile and criminal court

procedure into an amalgam which will offer the juve.

nile the best of both worlds.” Jd. at 16.

1968) ; Shone v. State, 237 A.2d 412 (Maine 1968) ; DeBacker »,

Brainard, 183 Neb. 461, 161 N.W.2d 508, 519 (1968) (minority

opinion) ; Estes v. Superior Court, 438 P.2d 205 (Wash. 1968) ;

In re Agler, 15 Ohio App.2d 240 (1968) ; and Commonwealth 9.

Johnson, 211 Pa. Super. 62, 234 A.2d 9 (1968) with Nieves v. United

States, 280 F.Supp. 994 (S.D.N.Y. 1968) ; and Peyton v. Nord, 78

N.M. 717, 437 P.2d 716 (1968). See also, In re Dennis M., 70 Cal.2d

444, 456 (1969) (by implication—jury trial not required). Com-

mentators are similarly divided. Compare Welch, op. cit. supra;

Paulsen, Fairness to the Juvenile Offender, 41 Minn. L. Rev. 541,

559 (1957) with Antieau, Constitutional Rights in Juvenile Courts,

46 Cornell L.Q. 387, 399-400 (1961) ; Dorsen & Rezneck, Gault and

Juvenile Law, 1 Family Law Q. No. 4; 1, 22-23 (1967). See gen-

erally, Annot. 100 A.L.R.2d 1241 (1968). The jurisdictions provid-

ing for jury trial in juvenile cases are listed in Petitioners’ Brief

at 29-30, n. 29.

9. Compare Dryden v. Commonwealth, 485 S.W.2d 457 (Ky.

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17

The court reviewed the responsibilities of the juvenile

court judge, finding, in essence, that he must be more than

a trier of fact.

“(H]e must, in a unique manner, establish a relation-

ship that will permanently alter the behavior patterns

of the child.” Zd. at 17.

The insertion of jury trials would sorely limit the juvenile

court judge in carrying out his special tasks. Ibid.

“W]e find that the Supreme Court recognized that

juvenile courts, while acting within the constitutional

arantees of due process, must, nonetheless, retain

their flexible procedures and techniques. The institution

of jury trial in juvenile court, while not materially con-

tributing to the fact-finding function of the court, would

seriously limit the court’s ability to function in this

unique manner, and would result in a sterile procedure

which could not vary to meet the needs of delinquent

children.” Ibid.

Johnson was decided before this Court’s decision in Dun-

can v. Louisiana, 391 U.S. 145 (1968), made the right to jury

trial an element of due process applied to state criminal

trials. The highest court of Kentucky considered the effect

of Duncan, but nonetheless followed the Pennsylvania court

in Johnson. In Dryden v. Commonwealth, 435 S.W.2d 457

(Ky. 1968), the court was unwilling to equate a juvenile pro-

ceeding with a criminal trial even though the basis might be

eonduct which would be a crime if committed by an adult.

The court noted that if institutionalization may be the

result, “it can make no sensible difference whether he is

charged with having committed a criminal offense, of tru-

ancy, of habitual disobedience to his parents, or of being

dependent, neglected, needy or abandoned.” Jd. at 461. The

court continued :

18

“A jury trial, with all the clash and clamor of th

adversary system that necessarily goes with it, would

certainly invest a juvenile proceeding with the appear.

ance of a criminal trial, and create in the mind ap

memory of the child the same effect as if it were, Ip

our opinion there is more to be lost than gained, Cer.

tainly we cannot regard a jury as a better, fairer, mor

accurate fact-finder than a competent and conscientions

cireuit judge.” bid.

Petitioners cite the decisions of this Court in Duncan .

Louisiana, supra, Bloom v. Illinois, supra, and Baldwin »,

New York, 399 U.S. 66 (1970) which hold generally that a

defendant in a criminal trial or criminal contempt proceed.

ing has the right to trial by jury if the crime is “serious,”

that is, may be punishable by incarceration for a period

longer than six months. Petitioners argue that since they

were subject to periods of institutionalization of from six

to ten years and because the adjudicatory phase of juvenile

proceedings under North Carolina law is materially in.

distinguishable from the ordinary criminal case, that due

process as defined for juveniles in Gault and Winship in.

cludes the right to trial by jury.

We cannot agree that due process requires a jury trial

in juvenile proceedings which may or may not involve

“criminal” conduct; may or may not result in incarceration;

and do not involve “crime in the ordinary sense;...a public

wrong which is punishable by fine or imprisonment or both.”

Bloom v. Illinois, supra, at 201. We submit that petitioner's

argument utterly fails to take into account the fact that a

rigid application of Duncan and Bloom simply does not

fit the realities of the juvenile court system. They argue,

simply, that a jury trial must be provided whenever a juve-

nile is subject to incarceration, apparently for more than six

19

months. In juvenile cases, however, commitment for a po-

tentially longer period may be order in cases where an

an adult would not be entitled to a jury trial and in cases

not involving crimes at all.

Petitioners avoid facing this obvious difficulty with their

analysis merely by stating, “This case does not raise the

question of the right to jury trial in juvenile proceedings

which do not involve a charge of violation of state erimi-

nal laws.” Brief for Petitioners at 11, n. 10. This case

cannot avoid facing this problem, as long as potential com-

mitment is argued to be the factor which underlies the

right to trial by jury.

If the right to jury trial is based on potential commit-

ment, then we must ask juries to find juveniles “guilty” of

conduct which is not criminal and which is not subject to

precise definition. As pointed out by the President’s Task

Force on Juvenile Delinquency as quoted, supra.

“Jnequality and disparate decisions are invited by

giving these formulae to ad hoc juries for application

rather than to judges, who tend inevitably to develop

concrete meanings for such terms.”

In the statutory scheme established in California, and, as

we read the statute, in North Carolina, when commitment

is ordered, it is not determined by the conduct charged,

but on the basis of factors developed in the dispositional

hearing. The conduct serves only to give the court jurisdic-

tion to proceed. This is the truly important distinction

between adult and juvenile cases.”°

——_—_—-

10. It was apparently the ‘‘tokenism’’ of this dispositional

hearing that concerned this Court in Gault: ‘‘The traditional ideas

of Juvenile Court procedure, indeed, contemplated that time would

be available and care would be used to establish precisely what the

juvenile did and why he did—was it a prank of adolescence or a

“The fact of exposure to incarceration at all, a qualita.

tive consideration, seems, in light of the fo

amendment’s specific concern for preserving ji

ual liberty, to be an appropriate basis for p

procedural safeguards aimed at ensuring the reliabj.

ity of determinations that state intervention is war.

ranted. The right to counsel, reliable evidence,

standard of proof, cross-examination, and

of record all relate to reliability. Other procedural

aspects of criminal prosecution, such as

cause for apprehension, the right to bail, the right to

trial by jury, the privilege against self-incrimination

and exclusionary rules for evidence obtained by tres.

passory searches and seizures, should not be applied

verbatim to juvenile proceedings without due consid.

eration of qualitative differences in incarceration and

other differences in juvenile law.

“Rather than holding that qualitative aspects of

incarceration are ‘of no constitutional consequence’

and that other statutory ‘rights and immunities’

afforded the juvenile are ‘in no way involved,’ the

cause of juvenile correction would be better served by

a holding that made these ‘differences’ essential to the

constitutionality of carefully tailored ‘noncrimingl’

procedures, while insisting upon the realization of

these differences in fact in individual cases

appropriate review by appeal and habeas corpus.”

Welch, op. cit. supra, at 35.

In Winship, this Court applied the criminal standard of

proof to juvenile proceedings in which a “crime” was

brutal act threatening serious consequences to himself or society

unless corrected? Under traditional notions, one would assume that

in a case like that of Gerald Gault, where the juvenile ap to

have a home, a working mother and father, and an older brother,

the Juvenile Judge would have made a careful inquiry and judg.

ment as to the possibility the boy could be disciplined and dealt with

at home, despite his previous transgressions. ’’ (Footnotes omitted.)

Id. at 28.

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21

charged because, among other reasons, to do so would not

disturb the policy that juvenile proceedings are confiden-

tial nor affect the informality, flexibility, or speed of the

adjudicatory hearing. The same is obviously not true of

trial by jury. Petitioners “simply do not understand how

formality can be considered a vice. The rules of evidence

which would be applied in any proceeding involving a jury

represent our law’s way of ensuring the most advantageous

circumstances for dispassionate and objective determina-

tion of factual issues.” Brief for Petitioners at 18. The

appropriate rules of evidence are not at issue here; we

doubt if even its most passionate defenders would seriously

argue that a jury trial represents the best means that

society could devise for “dispassionate and objective deter-

mination of factual issues.” Far more than mere formality

or the imposition of evidentiary rules is involved in a jury

trial. In the fully adversary atmosphere necessarily gener-

ated by a jury trial, objectivity and dispassion are the

exception, not the rule. Imposition of this atmosphere into

juvenile proceedings would be, we submit, totally destruc-

tive of the beneficial aspects of the juvenile process, with

no gain whatever in the reliability of the fact-finding

process.

inally, petitioners do not consider the problem -f waiver

which would result from the wholesale importation of

criminal law procedures into the juvenile court system,

particularly where the “right” in question is of highly

debatable benefit or utility. The obvious problems of waiver

by a juvenile have been recognized. See, e.g., In re Gault,

supra, at 55; Comment, The Juvenile Court Revolution in

Washington, 44 Wash. L. Rev. 421, 432-33 (1969). It has

been stated that there are two issues involved: (1) What is

the standard for an effective waiver; and (2) who has the

authority to waive the juvenile’s rights. [bid.

If a juvenile court proceeding is a criminal trial, and the |

adult “protections” are to epply to the juvenile in full

force, then he must have a jury trial as a constitution)

right unless he has knowingly and intelligently waived it

Cf., In re Gault, supra at 42. There will obviously be some

juveniles who will be incapable of waiving due to age or

circumstances.

Yet, even in the sizable number of jurisdictions whic,

provide by statute for a jury trial, the “right” is rarely

exercised; most juveniles, or their parents or

choose the informality, privacy, and expertise of a court

proceeding. See Pausen, op. cit. supra, at 186; Peytox »,

Nord, supra, at 726. However, if anyone but the juvenile

is able to waive this right, then we are applying a different

standard to juveniles, impermissible under the rationale

that the differences in juvenile court proceedings do not

justify deviation from the criminal law model. Thus, the

unconscionable result of establishing the criminal jury trial

as a constitutional right in a juvenile proceeding is to foree

the child incapable of waiving to participate in a jury trial

which most legislatures have weighed and found wanting,

. and which those children capable of making an intelligent

choice or their representatives nearly invariably reject

To answer that the problem does not exist because parent

or counsel may waive the right is inevitably to recognize

that the difference in proceedings concerning juveniles

justifies different standards than those applied to adults,

11. This should be contrasted with the situation in the adult

criminal courts. ‘‘The laws of every state guarantee a right to jury

trial in serious criminal cases; no state has dispensed with it; nor

are there significant movements underway to do so.’’ Gault at 154,

‘(T]he fact is that in most places more trials for serious crimes

are to juries than to a court alone; a great many defendants prefer

the judgment of a jury to that of a court.’’ Jd. at 158.

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If this is so, then we fail to see why these same differences

do not justify judicial deference to the legislative “waiver”

made for all juveniles on the basis that their interests are

not best served by a jury trial.

CONCLUSION

The problems of treating neglected, potentially delin-

quent and delinquent children cannot be adequately dealt

with by forcing the proceedings into a criminal mold or by

making the applicability of the criminal label depend on

the potential disposition. Children and their parents are

entitled to due process and fair proceedings whenever the

state seeks to intervene in their relationship or to insti-

tutionalize the child. To recognize this, however, dces not

and should not compel the imposition of procedures devel-

oped to deal with the different problems of adults charged

with crimes. Juvenile proceedings, when carefully devel-

oped as in California, are sut generis and represent con-

sidered legislative judgment as to the best way to deal in

a rational and humane manner with the complex problems

involved. We urge that this Court defer to the legisiative

judgment so that the system may evolve as necessary to

deal with the problem.

Dated: September 17, 1970

Tomas C. LyncH

Attorney General of the

State of California

Apert W. Harris, Jr.

Aasistant Atturney General

Deratp E. GranBERG

Deputy Attorney General

Guiori F. DeHart

Deputy Attorney General

Attorneys for the People of

the State of California