Opinion — In re Burrus

of red

nvenience of the . Bee United States v. Detroit

the 200 U.S. 821, 887.

SUPREME COURT OF THE UNITED STATES

Syllabus

McKEIVER et AL. v. PENNSYLVANIA

APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA

No. 322. Argued December 10, 1970—Decided June 21, 1971*

The requests of appellants in No. 322 for a jury trial were denied,

and they were adjudged juvenile delinquents under Pennsylvania

law. The State Supreme Court, while recognizing the applicability

to juveniles of certain due process procedural safeguards, held that

there is no constitutional right to a jury trial in juvenile court.

Appellants argue for a right to a jury trial because they were tried

in proceedings “substantially similar to a criminal trial,” and note

that the press is generally present at the trial and that members

of the public also enter the courtroom. Petitioners in No. 128

were adjudged juvenile delinquents in North Carolina, where their

jury trial requests were denied and in proceedings where the gen-

eral public was excluded. Held: A trial by jury is not constitution-

ally required in the adjudicative phase of a state juvenile court

delinquency proceeding. Pp. 11-—.

438 Pa. 339, 265 A. 2d 350 and 275 N. C. 517, 169 S. E. 2d 879

affirmed.

Mr. Justice BLacKMUN, joined by THe Cn Justice, Mr.

Justice Srewart, and Mr. Justice Wuire, concluded that:

1. The applicable due process standard in juvenile proceedings

is fundamental fairness, as developed by In re Gault, 387 U. S. 1,

and In re Winship, 397 U. S. 358, which emphasized factfinding

procedures, but in our legal system the jury is not a necessary

component of accurate factfinding. Pp. 13-14.

2. Despite disappointments, failures, and shortcomings in the

juvenile court procedure, a jury trial is not constitutionally re-

quired in a juvenile court’s adjudicative stage. Pp. 15-20.

’

*Together with No. In re Burrus et al., on certiorari to the

Supreme Court of North Carolina.

I

— — |

McKEIVER v. PENNSYLVANIA

Syllabus

(a) The Court has not heretofore ruled that all rights con-

stitutionally assured to an adult accused are to be imposed in a

juvenile proceeding. Pp. 15-16.

(b) Compelling a jury trial might remake the proceeding into

a fully adversary process and effectively end the idealistic prospect

of an intimate, informal protective proceeding. P. 16.

(c) Imposing a jury trial on the juvenile court system would

not remedy the system’s defects and would not greatly strengthen

the factfinding function. P. 17.

(d) The States should be free to experiment to achieve the

high promise of the juvenile court concept, and they may install

a jury system; or a juvenile court judge may use an advisory jury

in a particular case. P. 18.

(e) Many States by statute or judicial decision deny a juvenile

a right to jury trial, and the great majority that have faced that

issue since Gault, supra, and Duncan v. Louisiana, 391 U. S. 145,

have concluded that the considerations involved in those cases do

not compel trial by jury in juvenile court. Pp. 18-20.

(f) Jury trial would entail delay, formality and clamor of the

adversary system, and possibly a public trial. P. 20.

(g) Equating the adjudicative phase of the juvenile proceed-

ing with a criminal trial ignores the aspects of fairness, concern,

sympathy, and paternal attentior inherent in the juvenile court

system. P. 21.

Mr. Jusrice BRENNAN concluded that:

Due process in juvenile delinquency proceedings, which are not

“criminal prosecutions,” does not require the States to provide

jury trials on demand so long as some other aspect of the process

adequately protects the interests that Sixth Amendment jury trials

are intended to serve. In the juvenile context, those interests may

be adequately protected by allowing accused individuals to bring

the community’s attention to bear upon their trials. Since Penn-

sylvania has no statutory bar to public juvenile trials, and since

no claim is made that members of the public were excluded over

appellants’ objections, the judgment in No. 322 should be affirmed.

Pp. 1-3.

Mr. Justice Haran concurred in the judgments in these cases

on the ground that criminal jury trials are not constitutionally

required of the States, either by the Sixth Amendment or by due

process. P. 2.

McKEIVER v. PENNSYLVANIA 1

Syllabus

BLacKMUN, J., announced the Court’s judgments and delivered an

opinion in which BurceEr, C. J., and Srewart and Wuire, JJ., joined.

Wurre, J., filed a concurring opinion. BRENNAN, J., filed an opinion

concurring in No. 322 and dissenting in No. 128. HARLAN, J., filed

an opinion concurring in the judgments. Dovcuas, J., filed a dissent-

ing opinion, in which BLACK and MarsHaLt, JJ., joined.

SUPREME COURT OF THE UNITED STATES

Nos. 322 AND 128.—Ocroser TERM, 1970

Joseph McKeiver and

Edward Terry, On Appeal From the Su-

Appellants, preme Court of Pennsyl-

322 v. vania, Eastern District.

State of Pennsylvania.

On Writ of Certiorari to the

In re Barbera Burrus et al., Supreme Court of North

128 Petitioners. Cercle:

[June 21, 1971]

Mr. Justice BLACKMUN announced the judgment of

the Court and an opinion in which THe CHT JUSTICE,

Mn. Justice Stewakt, and Mr. Justice WHITE join.

These cases present the narrow but precise issue

whether the Due Process Clause of the Fourteenth

Amendment assures the right to trial by jury in the ad-

judicative phase of a state juvenile court delinquency

proceeding.

I

The issue arises understandably, for the Court in a

series of cases already has emphasized due process factors

protective of the juvenile:

1. Haley v. Ohio, 332 U. S. 596 (1948), concerned the

admissibility of a confession taken from a 15-year-old

boy on trial for first-degree murder. It was held that,

upon the facts there developed, the Due Process Clause

barred the use of the confession. Mn. Justice Douauas,

in an opinion in which three other Justices joined, said,

“Neither man nor child can be allowed to stand con-

demned by methods which flout constitutional require-

ments of due process of law.” 332 U. S., at 601.

—

2 McKEIVER v. PENNSYLVANIA

2. Gallegos v. Colorado, 370 U. S. 49 (1962), where 3

14-year-old was on trial, is to the same effect.

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

cerned a 16-year-old charged with housebreaking, rob-

bery, and rape in the District of Columbia. The issue

was the propriety of the juvenile court’s waiver of juris-

diction “after full investigation,” as permitted by the

applicable statute. I was emphasized that the latitude

the court possessed within which to determine whether it

should retain or waive jurisdiction “assumes procedural

regularity sufficient in the particular circumstances to

satisfy the basic requirements of due process and fairness,

as well as compliance with the statutory requirement of

a full investigation.“ 383 U. S., at 553.

4. In re Gault, 387 U. S. 1 (1967), concerned a 15-year-

old, already on probation, committed in Arizona as a

delinquent after being apprehended upon a complaint of

lewd remarks by telephone. Mr. Justice Fortas, in writ-

ing for the Court, reviewed the cases just cited and

observed

“Accordingly, while these cases relate only to re-

stricted aspects of the subject, they unmistakably

indicate that, whatever may be their precise impact,

neither the Fourteenth Amendment nor the Bill of

Rights is for adults alone.” 387 U. S., at 13.

The Court focused on “ the proceedings by which a deter-

mination is made as to whether a juvenile is a ‘delin-

quent’ as a result of alleged misconduct on his part, with

the consequence that he may be committed to a state

institution” and, as to this, said that “there appears to be

little current dissent from the proposition that the Due

Process Clause has a role to play.” P. 13. Kent was

adhered to: “We reiterate this view, here in connection

with the juvenile court adjudication of ‘delinquency,’ as

a requirement which is part of the Due Process Clause

McKEIVER v. PENNSYLVANIA 3

of the Fourteenth Amendment of our Constitution.”

Pp. 30-31. Due process, in that proceeding, was held to

embrace adequate written notice; advice as to the right

to counsel, retained or appointed; confrontation; and

cross-examination. The privilege against self-incrimina-

sion was also held available to the juvenile. The Court

refrained from deciding whether a State must provide

appellate review in juvenile cases or a transcript or

recording of the hearings.

5. DeBacker v. Brainard, 396 U. S. 28 (1969), pre-

sented, by state habeas corpus, a challenge to a Nebraska

statute providing that juvenile court hearings “shall be

conducted by the judge without a jury in an informal

manner.” However, because that appellant's hearing

had antedated the decisions in Duncan v. Louisiana, 391

U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194

(1968), and because Duncan and Bloom had been given

only prospective application by DeStefano v. Woods, 392

U. S. 631 (1968), DeBacker’s case was deemed an inap-

propriate one for resolution of the jury trial issue. His

appeal was therefore dismissed. Mx. Justice Black and

Mr. Justice Dovc.as, in separate dissents, took the

position that a juvenile is entitled to a jury trial at

the adjudicative stage. Mr. Justice Brack described

this as “a right which is surely one of the fundamental

aspects of criminal justice in the English-speaking

world,” 396 U. S., at 34, and Mr. Justice Dovetas

described it as a right required by the Sixth and Four-

teenth Amendments “where the delinquency charged is

an Offense that, if the person charged were an adult,

would be a crime triable by jury.” 396 U. S., at 35.

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

12-year-old charged with delinquency for having taken

money from a woman’s purse. The Court held that

“the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt

4 McKEIVER v. PENNSYLVANIA

of every fact necessary to constitute the crime with

which he is charged,” 397 UI S., at 364, and then went

on to hold, p. 368, that this standard was applicable,

too, “during the a:judicatory stage of a delinqueney

proceeding.”

From these six cases—Haley, Gallegos, Kent, Gault,

DeBacker and Winship—it is apparent that:

1. Some of the constitutional requirements attendant

upon the state criminal trial have equal application to

that part of the state juvenile proceeding that 1s adjudi-

cative in nature. Among these are the rights to appro-

priate notice, to counsel, to confrontation and to cross-

examination, and the privilege against self-incrimination,

Included, also, is the standard of proof beyond a reason-

able doubt.

2. The Court, however, has not yet said t):at all rights

constitutionally assured to an adult accused of crime

also are to be enforced or made available to the juvenile

in his delinquency proceeding. Indeed, the Court specif-

ically has refrained from going that far:

We do not mean by this to indicate that the hear-

ing to be held must conform with all of the require-

ments of a criminal trial or even of the usual admin-

istrative hearing; but we do hold that the hearing

must measure up to the essentials of due process and

fair treatment.” Kent, 383 U. S., at 562; Gault,

387 U. S., at 30.

3. The Court, although recognizing the high hopes and

aspirations of Judge Julian Mack, the leaders of the

Jane Addams School and the other supporters of the

juvenile court concept, has also noted the disappoint-

ments of the system’s performance and experience and

the resulting widespread disaffection. Kent, 383 U. S.,

*See Mr. Justice Fortas’ article, Equal Rights—For Whom?, 42

N. V. U. L. Rev. 401, 406 (1967).

—

McKEIVER v. PENNSYLVANIA 5

at 555-556; Gault, 387 U. S., at 17-19. There have been,

at one and the same time, both an appreciation for the

juvenile court judge who is devoted, sympathetic, and

conscientious, and a disturbed concern about the judge

who is untrained and less than fully imbued with an

understanding approach to the complex problems of child-

hood and adolescence. There has been praise for the

system and its purposes, and there has been alarm over

its defects.

4. The Court has insisted that these successive deci-

sions do not spell the doom of the juvenile court system

or even deprive it of its “informality, flexibility or speed.”

Winship, 397 U. S., at 366-367. On the other hand, a

concern precisely to the opposite effect was expressed by

two dissenters in Winship. 397 U. S., at 375-376.

II

With this substantial background already developed,

we turn to the facts of the present cases:

No. 322. Joseph McKeiver, then age 16, in May 1968

was charged with robbery, larceny, and receiving stolen

goods (felonies under Pennsylvania law, 18 P. S. §§ 4704,

4807, and 4817) as acts of juvenile delinquency. At the

time of the adjudication hearing he was represented by

counsel.“ His request for a jury trial was denied and his

case was heard by Judge Theodore S. Gutowicz of the

Court of Common Pleas, Family Division, Juvenile

Branch, of Philadelphia County, Pennsylvania. Mc-

Keiver was adjudged a delinquent upon findings that he

had violated a law of the Commonwealth. 11 P. 8.

At McKeiver's hearing his counsel advised the court that he had

never seen McKeiver before and “was just in the middle of inter-

viewing him.” The court allowed him five minutes for the inter-

view. Counsel’s office, Community Legal Services, however, had

been appointed to represent McKeiver five months earlier. Ap-

pendix 2.

—

6 McKEIVER v. PENNSYLVANIA

§ 243 (4)(a). He was placed on probation. On appeal,

the Superior Court affirmed without opinion. Jn re

McKeiver, 215 Pa. Super. 760, 255 A. 2d 921 (1969).

Edward Terry, then age 15, in January 1969 was

charged with assault and battery on a police officer and

conspiracy (misdemeanors under Pennsylvania law, 18

P. S. §§ 4708 and 4302) as acts of juvenile delinquency,

His counsel’s request for a jury trial was denied and his

case was heard by Judge Joseph C. Bruno of the same

Juvenile Branch of the Court of Common Pleas of Phila-

delphia County. Terry was adjudged a delinquent on

the charges. This followed an adjudication and commit-

ment in the preceding week for an assault on a teacher.

He was committed, as he had been on the earlier charge,

to the Youth Development Center at Cornwalls Heights,

On appeal, the Superior Court affirmed without opinion.

In re Terry, 215 Pa. Super. 762, 255 A. 2d 922 (1969).

The Supreme Court of Pennsylvania granted leave to

appeal in both cases and consolidated them. The single

question considered, as phrased by the court, was

“whether there is a constitutional right to a jury trial in

juvenile court.” The answer, one justice dissenting, was

in the negative. In re Terry, 438 Pa. 339, 265 A. 2d 350

(1970). We noted probable jurisdiction. 399 U. S. 925

(1970).

The details of the McKeiver and Terry offenses are

sev ‘orth in Justice Roberts’ opinion for the Pennsylvania

court, 438 Pa., at 341-342 nn. 1 and 2, 265 A. 2d, at 351

nn. 1 and 2, and need not be repeated at any length

here. It suffices to say that McKeiver’s offense was his

participating with 20 or 3° guths who pursued three

young teenagers and took cents from them; that

McKeiver never before had been arrested and had a

record of gainful employment; that the testimony of two

of the victims was described by the court as somewhat

inconsistent and as “weak”; and that Terry’s offense

—

McKEIVER v. PENNSYLVANIA 7

consisted of hitting a police officer with his fists and with

a stick when the officer broke up a boys’ fight Terry and

others were watching.

No. 128. Barbara Burrus and approximately 45 other

black children, ranging in age from 11 to 15 years,’ were

the subjects of juvenile court summonses issued in Hyde

County, North Carolina, in January 1969.

The charges arose out of a series of demonstrations

in the county in late 1968 by black adults and children

protesting school assignments and a school consolidation

plan. Petitions were filed by North Carolina state high-

way patrolmen. Except for one relating to James Lam-

bert Howard, the petitions charged the respective juve-

niles with wilfully impeding traffic. The charge against

Howard was that he wilfully made riotous noise and

was disorderly in the O. A. Peay School in Swan Quarter ;

interrupted and disturbed the school during its regular

sessions; and defaced school furniture. The acts so

charged are misdemeanors under North Carolina law.

N. C. Gen. Stats. §§ 20.174.1, 14-132 (a), 14-273.

The several cases were consolidated into groups for

hearing before District Judge Hallett S. Ward, sitting as

a juvenile court. The same lawyer appeared for all the

juveniles. Over counsel’s objection, made in all except

two of the cases, the general public was excluded. A

request for a jury trial in each case was denied.

The evidence as to the juveniles other than Howard

consisted solely of testimony of highway patrolmen. No

juvenile took the stand or offered any witness. The

testimony was to the effect that on various occasions the

juveniles and adults were observed walking along High-

way 64 singing, shouting, clapping, and playing basket-

ball. As a result, there was interference with traffic.

In North Carolina juvenile court procedures are provided only

for persons under the age of 16. N. C. Gen. Stat. §§ 7A-277 and

7A-278 (1) (1969).

—

8 McKEIVER v. PENNSYLVANIA

The marchers were asked to leave the paved portion of

the highway and they were warned that they were com-

mitting a statutory offense. They either refused or left

the roadway and immediately returned. The juveniles

and participating adults were taken into custody. Juve-

nile petitions were then filed with respect to those under

the age of 16.

The evidence as to Howard was that on the morning

of December 5, he was in the office of the principal of

the O. A. Peay School with 15 other persons while school

was in session and was moving furniture around; that

the office was in disarray; that as a result the school

closed before noon; and that neither he nor any of the

others was a student at the school or authorized to enter

the principal’s office.

In each case the court found that the juvenile had

committed “an act for which an adult may be punished

by law.” A custody order was entered declaring the

juvenile a delinquent “in need of more suitable guardian-

ship” and committing him to the custody of the County

Department of Public Welfare for placement in a suitable

institution “until such time as the Board of Juvenile

Correction or the Superintendent of said institution may

determine, not inconsistent with the laws of this State.”

The court, however, suspended these commitments and

placed each juvenile on probation for either one or two

years conditioned upon his violating none of the State’s

laws, upon his reporting monthly to the County Depart-

ment of Welfare, upon his being home by 11 p. m. each

evening, and upon his attending a school approved by

the Welfare Director. None of the juveniles has been

confined on these charges.

On appeal, the cases were consolidated into two groups.

The North Carolina Court of Appeals affirmed. In re

Burrus, 4 N. C. App. 523, 167 S. E. 2d 454 (1969); In re

Shelton, 5 N. C. App. 487, 168 S. E. 2d 695 (1969).

McKEIVER v. PENNSYLVANIA 9

In its turn the Supreme Court of North Carolina deleted

that portion of the order in each case relating to commit-

ment, but otherwise affirmed. In re Burrus, 275 N. C.

517, 169 S. E. 2d 879 (1969). Two justices dissented

without opinion. We granted certiorari. 397 U.S. 1036

(1970).

III

It is instructive to review, as an illustration, the sub-

stance of Justice Roberts’ opinion for the Pennsylvania

court. He observes, 265 A. 2d, at 352, that “For over

sixty-five years the Supreme Court gave no considera-

tion at all to the constitutional problems involved in the

juvenile court area”; that Gault “is somewhat of a

paradox, being both broad and narrow at the same time“;

that it “is broad in that it evidences a fundamental and

far-reaching disillusionment with the anticipated benefits

of the juvenile court system”; that it is narrow because

the court enumerated four due process rights which it

held applicable in juvenile proceedings, but declined to

rule on two other claimed rights, p. 353; that as a con-

sequence the Pennsylvania court was “confronted with a

sweeping rationale and a carefully tailored holding”;

that the procedural safeguards “Gault specifically made

applicable to juvenile courts have already caused a sig-

nificant ‘constitutional domestication’ of juvenile court

proceedings,” p. 354; that those safeguards and other

rights, including the reasonable doubt standard estab-

lished by Winship, “insure that the juvenile court will

operate in an atmosphere which is orderly enough to im-

press the juvenile with the gravity of the situation and the

impartiality of the tribunal and at the same time in-

formal enough to permit the benefits of the juvenile

system to operate” (footnote omitted); that the “proper

inquiry, then, is whether the right to a trial by jury is

‘fundamental’ within the meaning of Duncan in the con-

text of a juvenile court which operates with all of the

—

—

10 McKEIVER v. PENNSYLVANIA

above constitutional safeguards”; and that his court’s

inquiry turned “upon whether there are elements in the

juvenile process which render the right to a trial by jury

less essential to the protection of an accused’s rights in

the juvenile system than in the normal criminal process,”

Justice Roberts then concluded that such factors do

inhere in the Pennsylvania juvenile system: (1) Although

realizing that “faith in the quality of the juvenile bench

is not an entirely satisfactory substitute for due process,”

p. 355, the judges in the juvenile courts “do take a dif-

ferent view of their role than that taken by their counter-

parts in the criminal courts.” (2) While one regrets its

inadequacies, p. 355, “the juvenile system has available

and utilizes much more fully various diagnostic and

rehabilitative services” that are “far superior to those

available in the regular criminal process.” (3) Although

conceding that the post-adjudication process “has in

many respects fallen far short of its goals, and its reality

is far harsher than its theory,” the end result of a declara-

tion of delinquency is significantly different from and

less onerous than a finding of criminal guilt” and “we are

not yet convinced that the current practices do not con-

tain the seeds from which a truly appropriate system

can be brought forth.” (4) Finally, “of all the possible

due process rights which could be applied in the juvenile

courts, the right to trial by jury is the one which would

most likely be disruptive of the unique character of the

juvenile process.” It is the jury trial that “would prob-

ably require substantial alteration of the traditional prac-

tices.” The other procedural rights held applicable to

the juvenile process “will give the juvenile sufficient

protection” and the addition of the trial by jury “might

well destroy the traditional character of juvenile

proceedings.”

The court concluded, p. 356, that it was confident “that

a properly structured and fairly administered juvenile

McKEIVER v. PENNSYLVANIA 11

court system can save our present societal needs without

infringing on individual freedoms.”

IV

The right to an impartial jury “[i]n all criminal prose-

cutions” under federal law is guaranteed by the Sixth

Amendment. Through the Fourteenth Amendment that

requirement has now been imposed upon the States “in

all criminal cases which—were they to be tried in a fed-

eral court—would come within the Sixth Amendment’s

guarantee.” This is because the Court has said it be-

lieves “that trial by jury in criminal cases is fundamental

to the American scheme of justice.” Duncan v. Louisi-

ana, 391 U. S. 145, 149 (1968); Bloom v. Illinois, 391

U. S. 194, 210-211 (1968).

This, of course, does not automatically provide the

answer to the present jury trial issue, if for no other

reason than that the juvenile court proceeding has not

yet been held to be a “criminal prosecution,” within the

meaning and reach of the Sixth Amendment, and also

has not yet been regarded as devoid of criminal aspects

merely because it usually has been given the civil label.

Kent, 383 U. S., at 554; Gault, 387 U. S., at 17, 49-50;

Winship, 397 U. S., at 365-366.

Little, indeed, is to be gained by any attempt sim-

plistically to call the juvenile court proceeding either

“civil” or “criminal.” The Court carefully has avoided

this wooden approach. Before Gault was decided in

1967, the Fifth Amendment’s guarantee against self-

incrimination had been imposed upon the state criminal

trial. Malloy v. Hogan, 378 U. S. 1 (1964). So, too,

had the Sixth Amendment’s rights of confrontation and

cross-examination. Pointer v. Texas, 380 U. S. 400

(1965), and Douglas v. Alabama, 380 U. S. 415 (1965).

Vet the Court did not automatically and peremptorily

apply those rights to the juvenile proceeding. A reading

—

12 McKEIVER v. PENNSYLVANIA

of Gault reveals the opposite. And the same separate

approach to the standard of proof issue is evident from

the carefully separated application of the standard, first

to the criminal trial, and then to the juvenile proceeding,

displayed in Winship. 397 U. S., at 361 and 365.

Thus, accepting “the proposition that the Due Process

Clause has a role to play,” Gault, 387 U. S., at 13, our

task here with respect to trial by jury, as it was in Gault

with respect to other claimed rights, “is to ascertain the

precise impact of the due process requirement.”

V

The Pennsylvania juveniles’ basic argument is that

they were tried in proceedings “substantially similar to

a criminal trial.” They say that a delinquency proceed-

ing in their State is initiated by a petition charging a

penal code violation in the conclusory language of an

indictment; that a juvenile detained prior to trial is held

in a building substantially similar to an adult prison;

that in Philadelphia juveniles over 16 are, in fact, held

in the cells of a prison; that counsel and the prosecution

engage in plea bargaining; that motions to suppress are

routinely heard and decided; that the usual rules of evi-

dence are applied; that the customary common law

defenses are available; that the press is generally admit-

ted in the Philadelphia juvenile courtrooms; that mem-

bers of the public enter the room; that arrest and prior

record may be reported by the press (from police sources,

however, rather than from the juvenile court records) ;

that, once adjudged delinquent, a juvenile may be con-

fined until his majority in what amounts to a prison

(see In re Bethea, 215 Pa. Super. 75, 76, 257 A. 2d 368,

369 (1969), describing the state correctional institution

at Camp Hill as a “maximum security prison for ad-

judged delinquents and youthful criminal offenders“);

McKEIVER v. PENNSYLVANIA 13

and that the stigma attached upon delinquency adjudi-

cation approximates that resulting from conviction in an

adult criminal proceeding.

The North Carolina juveniles particulariy urge that

the requirement of a jury trial would not operate to deny

the supposed benefits of the juvenile court system; that

the system’s primary benefits are its discretionary intake

procedure permitting disposition short of adjudication,

and its flexible sentencing permitting emphasis on re-

habilitation; that realization of these benefits does not

depend upon dispensing with the jury; that adjudication

of factual issues on the one hand and disposition of the

case on the other are very different matters with very

different purposes; that the purpose of the former is

indistinguishable from that of the criminal trial; that the

jury trial provides an independent protective factor; that

experience has shown that jury trials in juvenile courts

are manageable; that no reason exists why protection

traditionally accorded in criminal proceedings should be

denied young people subject to involuntary incarceration

for lengthy periods; and that the juvenile courts deserve

healthy public scrutiny.

VI

All the litigants here agree that the applicable due

process standard in juvenile proceedings, as developed by

Gault and Winship, is fundamental fairness. As that

standard was applied in those two cases, we have an

emphasis on factfinding procedures. The requirements

of notice, counsel, confrontation, cross-examination, and

standard of proof naturally flowed from this emphasis.

But one cannot say that in our legal system the jury is

a necessary component of accurate factfinding. There is

much to be said for it, to be sure, but we have been con-

tent to pursue other ways for determining facts. Juries

are not required, and have not been, for example, in

—

14 McKEIVER v. PENNSYLVANIA

equity cases, in workmen’s compensation, in probate, or

in deportation cases. Neither have they been generally

used in military trials. In Duncan the Court stated,

“We would not assert, however, that every criminal

trial—or any particular trial—held before a judge alone

is unfair or that a defendant may never be as fairly

treated by a judge as he would be by a jury.” 391 U. 8.,

at 158. In DeStefano, for this reason and others, the

Court refrained from retrospective application of Duncan,

an action it surely would have not taken had it felt that

the integrity of the result was seriously at issue. And in

Williams v. Florida, 399 U. S. 78 (1970), the Court saw

no particular magic in a 12-man jury for a criminal case,

thus revealing that even jury concepts themselves are

not inflexible.

We must recognize, as the Court has recognized before,

that the fond and idealistic hopes of the juvenile court

proponents and early reformers of three generations ago

have not been realized. The devastating commentary

upon the system’s failures as a whole, contained in the

Task Force Report: Juvenile Delinquency and Youth

Crime (President’s Commission on Law Enforcement

and the Administration of Justice (1967)), pp. 7-9, re-

veals the depth of disappointment in what has been ac-

complished. Too often the juvenile court judge falls

far short of that stalwart, protective and communicating

figure the system envisaged.‘ The community’s unwill-

ingness to provide people and facilities and to be con-

cerned, the insufficiency of time devoted, the scarcity of

professional help, the inadequacy of dispositional alter-

A recent study of juvenile court judges . . revealed that half

had not received undergraduate degrees; a fifth had received no col-

lege education at all; a fifth were not members of the bar.” Task

Force Report, p. 7.

———

McKEIVER v. PENNSYLVANIA 15

natives, and our general lack of knowledge all contribute

to dissatisfaction with the experiment.“

The Task Force Report, however, also said, page 7,

“To say that juvenile courts have failed to achieve their

goals is to say no more than what is true of criminal courts

in the United States. But failure is most striking when

hopes are highest.”

Despite all these disappointments, all these failures,

and all these shortcomings, we conclude that trial by

jury in the juvenile court’s adjudicative stage is not a

constitutional requirement. We so conclude for a num-

ber of reasons:

1. The Court has refrained, in the cases heretofore

decided, from taking the easy way with a flat holding that

s „What emerges, then, is this: In theory the juvenile court was

to be helpful and rehabilitative rather than punitive. In fact the

distinction often disappears, not only because of the absence of fa-

clilities and personnel but also because of the limits of knowledge and

technique. In theory the court’s action was to affix no stigmatizing

label. In fact a delinquent is generally viewed by employers, schools,

the armed services—by society generally—as a criminal. In theory

the court was to treat children guilty of criminal acts in noncriminal

ways. In fact it labels truants and runaways as junior criminals.

“In theory the court’s operations could justifiably be informal, its

findings and decisions made without observing ordinary procedural

safeguards, because it would act only in the best interest of the child.

In fact it frequently does nothing more nor less than deprive a child

of liberty without due process of law—knowing not what else to do

and needing, whether admittedly or not, to act in the community’s

interest even more imperatively than the child’s. In theory it was

to exercise its protective powers to bring an errant child back into

the fold. In fact there is increasing reason to believe that its inter-

vention reinforces the juvenile’s unlawful impulses. In theory it

was to concentrate on each case the best of current social science

learning. In fact it has often become a vested interest in its turn,

loathe to cooperate with innovative programs or avail itself of for-

ward-looking methods.” Task Force Report, p. 9.

Ah ey

— — —

16 McKEIVER v. PENNSYLVANIA

all rights constitutionally assured for the adult accused

are to be imposed upon the state juvenile proceeding.

What was done in Gault and in Winship is aptly described

in Commonwealth v. Johnson, 211 Pa. Super. 62, 74, 234

A. 2d 9, 15 (1967):

“It is clear to us that the Supreme Court has properly

attempted to strike a judicious balance by injecting

procedural orderliness into the juveniie court system,

It is seeking to reverse the trend [pointed out in

Kent, 383 U.S., at 556] whereby ‘the child receives

the worst of both worlds

2. There is a possibility, at least, that the jury trial,

if required as a matter of constitutional precept, will

remake the juvenile proceeding into a fully adversary

process and will put an effective end to what has been

the idealistic prospect of an intimate, informal protective

proce zeding.

3. The Task Force Report, although concededly pre-

Gault, is notable for its not making any recommendation

that the jury trial be imposed upon the juvenile court

system. This is so despite its vivid description of the

system’s deficiencies and disappointments. Had the

Commission deemed this vital to the integrity of the

juvenile process, or to the handling of juveniles, surely

a recommendation or suggestion to this effect would

have appeared. The intimations, instead, are quite

the other way. Task Force Report, 38. Further, it

expressly recommends against abandonment of the sys-

tem and against the return of the juvenile to the criminal

courts.*

* “Nevertheless, study of the juvenile courts does not necessarily

lead to the conclusion that the time has come to jettison the experi-

ment and remand the disposition of children charged with crime to

the criminal courts of the country. As trying as are the problems

of the juvenile courts, the problems of the criminal courts, particu-

McKEIVER v. PENNSYLVANIA 17

4. The Court specifically has recognized by dictum

that a jury is not a necessary part even of every criminal

that is fair and equitable. Duncan v. Louisiana,

391 U. S., at 149-150 n. 14, and, at 158.

5. The imposition of the jury trial on the juvenile

court system would not strengthen greatly, if at all, the

factfinding function, and would, contrarily, provide an

attrition of the juvenile court’s assumed ability to func-

tion in a unique manner. It would not remedy the de-

fects of the system. Meager as has been the hoped-for

advance in the juvenile field, the alternative would be

regressive, would lose what has been gained, and would

tend once again to place the juvenile squarely in the

routine of the criminal process.

larly those of the lower courts, which would fall heir to much of

the juvenile court jurisdiction, are even graver; and the ideal of

separate treatment of children is still worth pursuing. What is re-

quired is rather a revised philosophy of the juvenile court based on

the recognition that in the past our reach exceeded our grasp. The

spirit that animated the juvenile court movement was fed in part

by a humanitarian compassion for offenders who were children. That

willingness to understand and treat people who threaten public

safety and security should be nurtured, not turned aside as hopeless

sentimentality, both because it is civilized and because social pro-

tection itself demands constant search for alternatives to the crude

and limited expedient of condemnation and punishment. But neither

should it be allowed to outrun reality. The juvenile court is a court

of law, charged like other agencies of criminal justice with protecting

through individualized handling is one way of providing protection,

and appropriately the primary way in dealing with children. But

the guiding consideration for a court of law that deals with threaten-

ing conduct is nonetheless protection of the community. The juve-

nile court, like other courts, is therefore obliged to employ all the

means at hand, not excluding incapacitation, for achieving that pro-

tection. What should distinguish the juvenile from the criminal

courts is greater emphasis on rehabilitation, not exclusive preoccupa-

tion with it.“ Task Force Report, p. 9.

18 McKEIVER v. PENNSYLVANIA

6. The juvenile concept held high promise. We are

reluctant to say that, despite disappointments of grave

dimensions, it still does not hold promise, and we are

particularly reluctant to say, as do the Pennsylvania peti-

tioners here, that the system cannot accomplish its re-

habilitative goals. So much depends on the availability

of resources, on the interest and commitment of the

public, on willingness to learn, and on understanding as

to cause end effect and cure. In this field, as in so many

others, one perhaps learns best by doing. We are re-

luctant to disallow the States further to experiment and

to seek in new and different ways the elusive answers

to the problems of the young, and we feel that we would

be impeding that experimentation by imposing the jury

trial. The States, indeed, must go forward. If, in its

wisdom, any State feels the jury trial is desirable in all

cases, or in certain kinds, there appears to be no impedi-

ment to its installing a system embracing that feature.

That, however, is the State’s privilege and not its

obligation.

7. Of course there have been abuses. The Task Force

Report has noted them. We refrain from saying at this

point that those abuses are of constitutional dimension.

They relate to the lack of resources and of dedication

rather than to inherent unfairness.

8. There is, of course, nothing to prevent a juvenile

court judge, in a particular case where he feels the need,

or when the need is demonstrated, from using an advisory

jury.

9. “The fact that a practice is followed by a large

number 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 people as to be ranked

as fundamental.’ Snyder v. Massachusetts, 291 U. 8.

—

McKEIVER v. PENNSYLVANIA 19

97, 105 (1934).“ Leland v. Oregon, 343 U. S. 790, 798

(1952). It therefore is of more than passing interest

that at least 20 States and the District of Columbia by

statute deny the juvenile a right to a jury trial in cases

such as these." The same result is achieved in other

States by judicial decision.* In 10 States statutes pro-

vide for a jury trial under certain circumstances.’

t Ala. Code Tit. 13, §369 (1958); Alaska Stat. § 47.10.070 (1970

Supp.); Ariz. Rev. Stat. Ann. § 8-229 (1956); Ark. Stat. Ann. § 45-

206 (1964 Repl.); Del. Code Amn. Tit. 10, § 1175 (1968 Supp.) ;

Fla. Stat. Ann. § 39.09 (2) (1961); Ga. Code Ann. § 24-2420 (1970

Supp.); Hawaii Rev. Stat. § 571-41 (1968); Idaho Code § 16-1813

(1969 Supp.); Ind. Stat. Ann. §9-3215 (1957 Supp.); Iowa Code

Ann. § 232.27 (1969); Ky. Rev. Stat. § 208.060 (1962) ; La. Rev.

Stat. § 13:1579 (1968); Minn. Stat. Ann. § 260.155 sub. 1. (1971);

Miss. Code Ann. § 7185-08 (1942); Vernon's Ann. Mo. Stat. § 211.171

(6) (1962) (equity practice controls); Neb. Rev. Stat. § 43-206.03

(2) (1968 Reissue); Nev. Rev. Stat. § 62.190 (3) (1963); N. J. Stat.

Ann. 2A:4-35 (1952); McKinney’s Consol. Laws N. V., Family

Court Act §§ 164 and 165 and Civ. Prac. Law and Rules § 4101;

N. C. Gen. Stats. f 7A-285 (1969); N. D. Cent. Code § 27-16-18

(1960); Page’s Ohio Rev. Code Ann. § 2151.35 (1968); Ore. Rev.

Stat. § 419.498 (1) (1968); Purdon’s Pa. Stat. Ann., Tit. 11, § 247

(1965); Code of Laws 8. C. § 15.1095.19 (1970 Supp.); Utah Code

Ann. § 55-10-94 (1969 Supp.); Vt. Stat. Ann., Tit. 33, § 651 (a)

(1970 Supp.); Rev. Code Wash. Ann. § 13.04.0380; D. C. Code

§ 16-2316 (a) (Supp. 1971).

8 In re Daedler, 194 Cal. 320, 228 P. 467 (1924); Cinque v. Boyd,

99 Conn. 70, 121 A. 678 (1923); In re Fletcher, 251 Md. 520, 248 A.

2d 364 (1968); Commonwealth v. Page, 339 Mass. 313, 316, 159

N. E. 2d 82, 85 (1959); Jn re Perham, 104 N. H. 276, 184 A. 2d 449

(1962).

o Colo. Rev. Stat. Ann. § 37-8-2 (1963) ; Kans. Stat. Ann. § 38-808

(1969 Supp.); Mich. Stat. Ann. § 27.3178 (598.17) (1962); Mont.

Rev. Codes Ann. § 10-604.1 (1969 Supp.) ; Okla. Stat. Ann. Tit. 10,

§ 1110 (1970 Supp.) ; S. D. Comp. Laws § 26-8-31 (1967); Vernon’s

Tex. Civ. Stat. Art. 2338-1, § 13 (b) (1970 Supp.); W. Va. Code

Ann. § 49-5-6- (1966); Wis. Stat. Ann. § 48.25 (2) (1967); Wyo.

Stat. Ann. § 14-108 (c) (1965).

—

20 McKEIVER v. PENNSYLVANIA

10. Since Gault and since Duncan the great majority

of States, in addition to Pennsylvania and North Carolina,

that have faced the issue have concluded that the con.

siderations that led to the result in those two cases do

not compel trial by jury in the juvenile court. Jn re

Fucini, 44 Ill. 2d 305, 255 N. E. 2d 380 (1970); Bible v.

State, 254 N. E. 2d 319 (Ind. 1970); Dryden v. Com-

monwealth, 435 8. W. 2d 457 (Ky. 1968); In re Johnson,

254 Md. 517, 255 A. 2d 419 (1969); Hopkins v. Youth

Court, 227 S. 2d 282 (Miss. 1969); In re J. W., 106 N. J.

Super. 129, 254 A. 2d 334 (1969); Jn re D., 27 N. v. 2d

90, 261 N. E. 2d 627 (1970); Jn re Agler, 19 Ohio St.

2d 70, 249 N. E. 2d 808 (1969); In re Turner, 253

P. 2d 910 (1969). See In re Estes, 73

263, 438 P. 2d 205 (1968); In re Geiger, 184

11. Stopping short of proposing the jury trial for

juvenile proceedings are the Uniform Juvenile Court

Act, §24(a), approved in July 1968 by the National

Conference of Commissioners on Uniform State Laws;

the Standard Juvenile Court Act, Article V, § 19, pro-

posed by the National Council on Crime and Delinquency

(see W. Sheridan, Standards for Juvenile and Family

Courts 73 (1968)); and the Legislative Guide for Draft-

ing Family and Juvenile Court Acts 829 (a) (1969)

(issued by the Children’s Bureau, Social and Rehabili-

tation Service, United States Department of H. E. W.).

12. If the jury trial were to be injected into the juvenile

court system as a matter of right, it would bring with it

into that system the traditional delay, the formality and

the clamor of the adversary system and, possibly, the

public trial. It is of interest that these very factors

were stressed by the District Committee of the Senate

McKEIVER v. PENNSYLVANIA 21

when, through Senator Tydings, it recommended, and

Congress then approved, as a provision in the District

of Columbia Crime Bill, the abolition of the jury trial

in the juvenile court. S. Rep. No. 91-620, 91st Cong.,

Ist Sess., 1969, pp. 13-14.

13. Finally, the arguments advanced by the juveniles

here are, of course, the identical arugments that underlie

the demand for the jury trial for criminal proceedings.

The arguments necessarily equate the juvenile proceed-

ing—or at least the adjudicative phase of it—with the

criminal trial. Whether they should be so equated is

our issue. Concern about the inapplicability of exclu-

sionary and other rules of evidence, about the juvenile

court judge’s possible awareness of the juvenile’s prior

record and of the contents of the social file; about re-

peated appearances of the same familiar witnesses in the

persons of juvenile and probation officers and social

workers—all to the effect that this will create the likeli-

hood of pre-judgment—chooses to ignore, it seems to us,

every aspect of fairness, of concern, of sympathy, and

of paternal attention that the juvenile court system

contemplates.

If the formalities of the criminal adjudicative process

are to be superimposed upon the juvenile court system,

there is little need for its separate existence. Perhaps

that ultimate disillusionment will come one day, but for

the moment we are disinclined to give impetus to it.

Affirmed.

SUPREME COURT OF THE UNITED STATES

Nos. 322 AND 128.—Ocroser Term, 1970

Joseph McKeiver and 2

Edward Terry, On Appeal From the Su-

Appellants, preme Court of Pennsyl-

322 v. vania, Eastern District.

State of Pennsylvania.

On Writ of Certiorari to the

In re W Burrus et al., Sen Court of North

128 etitioners. — —

[June 21, 1971]

Mr. Justice WHITE, concurring.

Although the function of the jury is to find facts, that

body is not necessarily or even probably better at the job

than the conscientious judge. Nevertheless, the conse-

quences of criminal guilt are so severe that the Constitu-

tion mandates a jury to prevent abuses of official power

by insuring, where demanded, community participation

in imposing serious deprivations of liberty and to pro-

vide a hedge against corrupt, biased, or political justice.

We have not, however, considered the juvenile case a

criminal proceeding within the meaning of the Sixth

Amendment and hence automatically subject to all of the

restrictions normally applicable in criminal cases. The

question here is one of due process of law and I join the

Court’s opinion holding that the States are not required

by that clause to afford jury trials in juvenile courts

where juveniles are charged with acts.

The criminal law proceeds on the theory that defend-

ants have a will and are responsible for their actions.

A finding of guilt establishes that they have chosen to

engage in conduct so reprehensible and injurious to others

—

2 McKEIVER v. PENNSYLVANIA

that they must be punished to deter them and others

from crime. Guilty defendants are considered blame-

worthy; they are branded and treated as such, however

much the State also pursues rehabilitative ends in the

criminal justice system.

For the most part, the juvenile justice system rests on

more deterministic assumptions. Reprehensible acts by

juveniles are not deemed the consequence of mature and

malevolent choice but of environmental pressures (or

lack of them) or of other forces beyond their control,

Hence the state legislative judgment not to stigmatize

the juvenile delinquent by branding him a criminal; his

conduct is not deemed so blameworthy that punishment

is required to deter him or others. Coercive measures,

where employed, are considered neither retribution nor

punishment. Supervision or confinement is aimed at

rehabilitation, not at convincing the juvenile of his error

simply by imposing pains and penalties. Nor is the

purpose to make the juvenile delinquent an object lesson

for others, whatever his own merits or demerits muy be.

A typical disposition in the juvenile court where delin-

quency is established may authorize confinement until

age 21, but it will last no longer and within that period

will last only so long as his behavior demonstrates that

he remains an unacceptable risk if returned to his family.

Nor is the authorization for custody until 21 any meas-

ure of the seriousness of the particular act which the

juvenile has performed.

Against this background and in light of the distinctive

purpose of requiring juries in criminal cases, I am satis-

fied with the Court’s holding. To the extent that the

jury is a buffer to the corrupt or overzealous prosecutor

in the criminal law system, the distinctive intake policies

and procedures of the juvenile court system to a great

extent obviate this important function of the jury. As

for the necessity to guard against judicial bias, a system

McKEIVER v. PENNSYLVANIA 3

eschewing blameworthiness and punishment for evil

choice is itself an operative force against prejudice and

short-tempered justice. Nor where juveniles are in-

volved is there the same opportunity for corruption to

the juvenile’s detriment or the same temptation to use

the courts for political ends.

Not only are those risks that mandate juries in crim-

inal cases of lesser magnitude in juvenile court adjudi-

cations, but the consequences of adjudication are less

severe than those flowing from verdicts of criminal guilt.

This is plainly so in theory, and in practice there remains

a substantial gulf between criminal guilt and delinquency,

whatever the failings of the juvenile court in practice

may be. Moreover, to the extent that current unhappi-

ness with juvenile court performance rests on dissatisfac-

tion with the vague and overbroad grounds for delin-

quency adjudications, with faulty judicial choice as to

disposition after adjudication or with the record of re-

habilitative custody, whether institutional or probation-

ary, these shortcomings are in no way mitigated by

providing a jury at the adjudicative stage.

For me there remain differences of substance between

criminal and juvenile courts. They are quite enough for

me to hold that a-jury is not required in the latter. Of

course, there are strong arguments that juries are de-

sirable when dealing with the young, and States are free

to use juries if they choose. They are also free, if they

extend criminal court safeguards to juvenile court adjudi-

cations, frankly to embrace condemnation, punishment,

and deterence as permissible and desirable attributes of

the juvenile justice system. But the Due Process Clause

neither compels nor invites them to do so.

— AT RE

SUPREME COURT OF THE UNITED STATES

Nos. 322 AND 128.—Ocroser Term, 1970

Joseph McKeiver and

Edward Terry, On Appeal From the Su-

Appellants, preme Court of Pennsyl-

322 v. vania, Eastern District.

State of Pennsylvania.

On Writ of Certiorari to the

Supreme Court of North

Carolina.

In re Barbara Burrus et al.,

128 Petitioners.

[June 21, 1971]

Mr. Justice BRENNAN, concurring in No. 322 and dis-

senting in No. 128.

I agree with the plurality opinion’s conclusion that the

proceedings below in these cases were not “criminal prose-

cutions” within the meaning of the Sixth Amendment.

For me, therefore, the question in these cases is whether

jury trial is among the “essentials of due process and fair

treatment,” In re Gault, 387 U. S. 1, 30 (1967), required

during the adjudication of a charge of delinquency based

upon acts which would constitute a crime if engaged in

by an adult. See Jn re Winship, 397 U. S. 358, 359, and

n. 1 (1970). This does not, however, mean that the in-

terests protected by the Sixth Amendment’s guarantee of

jury trial in all “criminal prosecutions” are of no im-

portance in the context of these cases. The Sixth Amend-

ment, where applicable, commands that these interests be

protected by a particular procedure, that is, trial by jury.

The Due Process Clause commands not a particular pro-

cedure, but only a result: in my Brother BLackmMuN’s

words, “fundamental fairness . .. in factfinding.” In

the context of these and similar juvenile delinquency pro-

—

2 McKEIVER v. PENNSYLVANIA

ceedings, what this means is that the States are not bound

to provide jury trials on demand so long as some other

aspect of the process adequately protects the interests

that Sixth Amendment jury trials are intended to serve.

In my view, therefore, the due process question cannot

he decided upon the basis of general characteristics of

juvenile proceedings, but only in terms of the adequacy

of a particular state procedure to “protect the [juvenile]

from oppression by the Government,” Singer v. United

States, 380 U. S. 24, 31 (1965), and to protect him against

“the compliant, biased, or eccentric judge.” Duncan y,

Louisiana, 391 U. 8. 145, 156 (1968).

Examined in this light, I find no defect in the Pennsyl-

vania cases before us. The availability of trial by jury

allows an accused to protect himself against possible

oppression by what is in essence an appeal to the com-

munity conscience, as embodied in the jury that hears

his case. To some extent, however, a similar protection

may be obtained when an accused may in essence appeal

to the community at large, by focusing public attention

upon the facts of his trial, exposing improper judicial

behavior to public view, and obtaining if necessary execu-

tive redress through the medium of public indignation.

Of course the Constitution, in the context of adult crim-

inal trials, has rejected the notion that public trial is

an adequate substitute for trial by jury in serious cases.

But in the context of juvenile delinquency proceedings, I

cannot say that it is beyond the compe: 2nce of a State

1A criminal process which was fair and equitable but used no

juries is easy to imagine. It would make use of alternative guaran-

tees and protections which would serve the purposes that the jury

serves in the English and American systems.” Duncan v. Louisiana,

391 U. 8. 145, 150 n. 14 (1968). This conclusion is, of course,

inescapable in light of our decisions that petty criminal offenses may

be tried without a jury notwithstanding the defendant’s request.

E. ., District of Columbia v. Clawans, 300 U. S. 617 (1937).

McKEIVER v. PENNSYLVANIA 3

to conclude that juveniles who fear that delinquency pro-

ceedings will mask judicial oppression may obtain ade-

quate protection by focusing community attention upon

the trial of their cases. For however much the juvenile

system may have failed in practice, its very existence as

an ostensibly beneficient and noncriminal process for the

care and guidance of young persons demonstrates the

existence of the community’s sympathy and concern for

the young. Juveniles able to bring the community’s

attention to bear upon their trials may therefore draw

upon a reservoir of public concern unavailable to the

adult criminal defendant. In the Pennsylvania cases be-

fore us, there appears to be no statutory ban upon admis-

sion of the public to juvenile trials.“ Appellants them-

selves, without contradiction, assert that “the press is

generally admitted” to juvenile delinquency proceedings

in Philadelphia.* Most important, the record in these

cases is bare of any indication that any person whom

appellants sought to have admitted to the courtroom was

excluded. In these circumstances, I agree that the judg-

ment in No. 322 must be affirmed.

The North Carolina cases, however, present a different

situation. North Carolina law either permits or requires

exclusion of the general public from juvenile trials. In

2 The generally applicable statute, Pa. Stat. Ann. § 11-245 (1965),

merely provides that juvenile proceedings shall be “separate” from

regular court business. Pa. Stat. Ann. § 11-269-402 (1970), requir-

ing exclusion of the general public from juvenile hearings, applies

only to Allegheny County. Both of the instant cases were tried in

Philadelphia County.

„The judges of the Philadelphia Juvenile Court exercise varying

degrees of control over admission to the courtroom, but the press

is generally admitted ....” Brief for Appellants, at 9 n. 9.

N. C. Gen. Stat. § 110-24 (19—), as in force at the time of these

trials, appears on its face to permit but not require such exclusion,

as does the identical language of the present statute, N. C. Gen. Stat.

§ 7A-285 (19—). The North Carolina Supreme Court in the present

e *

4 McKEIVER v. PENNSYLVANIA

the cases before us, the trial judge “ordered the general

public excluded from the hearing room and stated that

only officers of the court, the juveniles, their parents or

guardians, their attorney and witnesses would be present

for the hearing.” In re Burrus, 4 N. C. App. 523, —,

167 S. E. 2d 254, —— (1969), notwithstanding petitioners’

repeated demand for a public hearing. The cases them-

selves, which arise out of a series of demonstrations by

black adults and juveniles who believed that the Hyde

County, North Carolina, school system unlawfully dis-

criminated against black schoolchildren, present a para-

digm of the circumstances in which there may be a sub-

stantial “temptation to use the courts for political ends.”

Opinion of Mr. Justice Wuire, ante, at [3]. And

finally, neither the opinions supporting the judgment

nor the respondent in No. 128 has pointed to any feature

of North Carolina’s juvenile proceedings that could sub-

stitute for public or jury trial in protecting the petitioners

against misuse of the judicial process. Cf. Duncan v.

Louisiana, 391 U. S. 145, 188, 193 (1968) (HAN, J.,

dissenting) (availability of resort to “the political proc-

ess” is an alternative permitting States to dispense with

jury trials). Accordingly, I would reverse the judgment

in No. 128.

cases has read these statutes as a legislative determination “that a

public hearing is [not] in the best interest of the youthful offender.”

In re Burrus, — N. C. —, —, 169 8. E. 2d 879, — (1969).

—

SUPREME COURT OF THE UNITED STATES

Nos. 322 AND 128.—Ocroser Term, 1970

Joseph McKeiver and

Edward Terry, On Appeal From the Su-

Appellants, preme Court of Pennsyl-

322 v. vania, Eastern District.

State of Pennsylvania

On Writ of Certiorari to the

Supreme Court of North

Carolina.

[June 21, 1971]

In re Barbara Burrus et al.,

128 Petitioners.

Mr. Justice Harwan, concurring in the judgments.

If I felt myself constrained to follow Duncan v. Lou-

isiana, 391 U. S. 145 (1968), which extended the Sixth

Amendment right of jury trial to the States, I would

have great difficulty, upon the premise seemingly accepted

in my Brother BLackMun’s opinion, in holding that the

jury trial right does not extend to state juvenile proceed-

ings. That premise is that juvenile delinquency pro-

ceedings have in practice actually become in many, if

not all, respects criminal trials. But see my concurring

and dissenting opinion in Jn re Gault, 387 U. S. 1, 65

(1967). If that premise be correct, then I do not see

why, given Duncan, juveniles as well as adults would

not be constitutionally entitled to jury trials, so long as

juvenile delinquency systems are not restructured to fit

their original purpose. When that time comes I would

have no difficulty in agreeing with my Brother Biack-

mun, and indeed with my Brother Wurrz, the author of

Duncan, that juvenile delinquency proceedings are be-

yond the pale of Duncan.

2 McKEIVER v. PENNSYLVANIA

I concur in the judgments in these cases however, on

the ground that criminal jury trials are not constitution-

ally required of the States, either as a matter of Sixth

Amendment law or due process. See my dissenting opin-

ion in Duncan and my concurring opinion in Williams v.

Florida, 399 U. S. 78, 118-119 (1970).

SUPREME UOURT OF THE UNITED STATES

Nos. 322 AND 128.—Ocroser TERM, 1970

Joseph McKeiver and

Edward Terry, On Appeal From the Su-

Appellants, | preme Court of Pennsyl-

322 v. vania, Eastern Distriet.

State of Pennsylvania.

On Writ of Certiorari to the

In re Barbara Burrus et al., Supreme Court of North

128 Petitioners. Carolina.

[June 21, 1971]

Mr. Justice Dovaias, with whom Mr. Justice

Black and Mr. Justice MARSHALL concur, dissenting.

These cases from Pennsylvania and North Carolina

present the issue of the right to a jury trial for offenders

charged in juvenile court and facing a possible incarcer-

ation until they reach their majority. I believe the

guarantees of the Bill of Rights, made applicable to the

States by the Fourteenth Amendment, require a jury

trial.

In the Pennsylvania cases one of the appellants was

charged with robbery (18 Pa. Stat. Ann. § 4704), larceny

(18 Pa. Stat. Ann. § 4807), and receiving stolen goods

(18 Pa. Stat. Ann. § 4817) as acts of juvenile delinquency.

II Pa. Stat. Ann. § 246. He was found a delinquent and

placed on probation. The other appellant was charged

with assault and battery on a police officer (18 Pa. Stat.

Ann. § 4708) and conspiracy (18 Pa. Stat. Ann. § 4302)

as acts of juvenile delinquency. On a finding of delin-

quency he was committed to a youth center. Despite

the fact that the two appellants, aged 15 and 16, would

face potential incarceration until their majority, 11 Pa.

Stat. Ann. § 250, they were denied a jury trial.

2 McKEIVER v. PENNSYLVaNIA

In the North Carolina cases petitioners are students,

from 11 to 15 years of age, who were charged under one

of three criminal statutes: (1) “disorderly conduct” in a

public building, G. S. 14-132; (2) “wilful” interruption

or disturbance of a public or private school, G. S. 14-273;

or (3) obstructing the flow of traffic on a highway or

street, G. S. 20-174.1.

Conviction for each of these crimes would subject a

person, whether juvenile or adult, to imprisonment in a

state institution. In the case of these students the pos-

sible term was six to 10 years; it would be computed for

the period until an individual reached the age of 21.

Each asked for a jury trial which was denied. The trial

judge stated that the hearings were juvenile hearings, not

criminal trials. But the issue in each case was whether

they had violated a state criminal law. The trial judge

found in each case that the juvenile had committed “an

act for which an adult may be punished by law” and held

in each case that the acts of the juvenile violated one of

the criminal statutes cited above. The trial judge there-

upon ordered each juvenile to be committed to the state

institution for the care of delinquents and then placed

each on probation for terms from 12 to 24 months.

We held in Jn re Gault, 387 U. S. 1, 13, that “neither

the Fourteenth Amendment nor the Bill of Rights is for

adults alone.” As we noted in that case, the Juvenile

Court movement was designed to avoid procedures to

ascertain whether the child was “guilty” or “innocent”

but to bring to bear on these problems a “clinical” ap-

proach. Id., at 15, 16. It is of course not our task to de-

termine as a matter of policy whether a “clinical” or

“punitive” approach to these problems should be taken

by the States. But where a State uses its juvenile court

proceedings to prosecute a juvenile for a criminal act

and to order “confinement” until the child reaches 21

years of age or where the child at the threshold of the

—

McKEIVER v. PENNSYLVANIA 3

proceedings faces that prospect, then he is entitled

to the same procedural protection as an adult. As

Mr. Justice Black said in In re Gault, supra, at 61

(concurring) :

“Where a person, infant or adult, can be seize by

the State, charged, and convicted for violating a

state criminal law, and then ordered by the State

to be confined for six years, I think the Constitution

requires that he be tried in accordance with the

guarantees of all the provisions of the Bill of Rights

made applicable to the States by the Fourteenth

Amendment. Undoubtedly this would be true of

an adult defendant, and it would be a plain denial

of equal protection of the laws—an invidious dis-

crimination—to hold that others subject to heavier

punishments could, because they are children, be

denied these same constitutional safeguards.”

Just as courts have sometimes confused delinquency

with crime, so have law enforcement officials treated

juveniles not as delinquents but as criminals. As noted

in the President’s Crime Commission Report:

“In 1965, over 100,000 juveniles were confined in

adult institutions. Presumably most of them were

there because no separate juvenile detention facilities

existed. Nonetheless it is clearly undesirable that

juveniles be confined with adults.”

President’s Commission on Law Enforcement, Challenge

of Crime 179 (1967). Even when not incarcerated with

adults the situation may be no better. One Pennsylvania

correctional institution for juveniles is a brick building

with barred windows, locked steel doors, a cyclone fence

topped with berbed wire and guard towers. A former

juvenile judge described it as a maximum security prison

for adjudged delinquents.” In re Bethea, 215 Pa. Super.

75, 76, 257 A. 2d 368, 369.

A AOE LL —„—»-—

4 McKEIVER v. PENNSYLVANIA

In the present cases imprisonment or confinement up

to 10 years was possible for one child and each faced at

least a possible five-year incarceration. No adult could

be denied a jury trial in those circumstances. Dun-

can v. Louisiana, 391 U. S. 145, 162. The Fourteenth

Amendment which makes trial by jury provided in the

Sixth Amendment applicable to States speaks of denial

of rights to “any person,” not denial of rights to “any

adult person”; and we have held indeed that where a

juvenile is charged with an act that would constitute a

crime if committed by an adult, he is entitled to trial

by jury with proof beyond a reasonable doubt. Jn re

Winship, 397 U. S. 358.

In De Backer v. Brainard, 396 U. S. 28, 33 Mr. Justice

Brack and I dissented from a refusal to grant a juvenile,

who was charged with forgery, a jury trial merely because

the case was tried before Duncan v. Louisiana, 391 U. 8.

145 was decided. Mn. Justice Back, after noting that

a juvenile being charged with a criminal act was entitled

to certain constitutional safeguards, viz. notice of the

issues, benefit of counsel, protection against compulsory

self-incrimination, and confrontation of the witnesses

against him, added:

“I can see no basis whatsoever in the language of

the Constitution for allowing persons like appellant

the benefit of those rights and yet denying them a

jury trial, a right which is surely one of the funda-

mental aspects of criminal justice in the English-

speaking world.” 396 U. S., at 34.

I added that by reason of the Sixth and Fourteenth

Amendments the juvenile is entitled to a jury trial:

.. as a matter of right where the delinquency

charged is an offense that, if the person were an

adult, would be a crime triable by jury. Such is

—

McKEIVER v. PENNSYLVANIA 5

this case, for behind the facade of delinquency is the

crime of forgery.” Id., at 35.

Practical aspects of these problems are urged against

allowing a jury trial in these cases.“ They have been

answered by Judge De Ciantis of the Family Court of

Providence, Rhode Island, in a case entitled In the Matter

of McCloud, decided January 15, 1971. A juvenile was

charged with the rape of a 17-year-old female and Judge

De Ciantis granted a motion for a jury trial in an opinion,

a part of which I have attached as an appendix to this

dissent. He there concludes that “the real traumatic”

*The Public Defender Service for the District of Columbia and

the Neighborhood Legal Services Program of Washington, D. C., have

filed a brief amicus in which the results of a survey of jury trials in

delinquency cases in the 10 States requiring jury trials plus the Dis-

trict of Columbia are set forth. The cities selected were mostly large

metropolitan areas. Thirty juvenile courts processing about 75,000

juvenile cases a year were canvassed:

“ . . we discovered that during the past five and a half years, in

22 out of 26 courts surveved, cumulative requests for jury trials

totaled 15 or less. In the remaining five courts in our sample, sta-

tistics were unavailable. During the same period, in 26 out of 29

courts the cumulative number of jury trials actually held numbered

15 or less, with statistics unavailable for two courts in our sample.

For example, in Tulsa, Oklahoma, counsel is present in 100% of

delinquency cases, but only one jury trial has been requested and

held during the past five and one-half years. In the Juvenile Court

of Fort Worth, Texas, counsel is also present in 100% of the cases,

and only two jury trials have been requested since 1967. The Juve-

nile Court in Detroit, Michigan, reports that counsel is appointed in

70-80% of its delinquency cases, but thus far in 1970, it has had

only four requests fcr a jury. Between 1965 and 1969 requests for

juries were reported as ‘very few.’

“In only four juvenile courts in our sample has there clearly been

a total during the past five and one-half years of more than 15 jury

trial requests and/or more than 15 such trials held.”

The four courts showing more than 15 requests for jury trials were

Denver, Houston, Milwaukee, and Washington, D. C.

—

3 McKEIVER v. PENNSYLVANIA

experience of incarceration without due process is “the

feeling of being deprived of basic rights.” He adds:

“The child who feels that he has been dealt with

fairly and not merely expediently or as speedily as

possible will be a better prospect for rehabilitation.

Many of the children who come before the court

come from broken homes, from the ghettos; they

often suffer from low self-esteem; and their be-

havior is frequently a symptom of their own feelings

of inadequacy. Traumatic experiences of denial of

basic rights only accentuate the past deprivation and

contribute to the problem. Thus, a general societal

attitude of acceptance of the juvenile as a person

entitled to the same protection as an adult may be

the true beginning of the rehabilitative process.”

Judge De Ciantis goes on to say that “Trial by jury

will provide the child with a safeguard against being

prejudged” by a judge who may well be prejudiced by

reports already submitted to him by the police or case-

workers in the case. Indeed the child, the same as the

adult, is in the category of those described in the Magna

Carta:

No freeman may be . . . imprisoned . . except

by the lawful judgment of his peers, or by the law

of the land.”

These cases should be remanded for trial by jury on

the criminal charges filed against these youngsters.

—

APPENDIX TO DISSENT IN NO. 128

(Dovatas, J.)

De Ciantis, J.: The defendant, who will hereinafter be

referred to as a juvenile, on the sixth day of September,

1969, was charged with Rape upon a female child, seven-

teen years old, in violation of Title 11, Chapter 37, Sec-

tion 1, of the General Laws of 1956.

TRAUMA

The fact is that the procedures which are now followed

in juvenile cases are far more traumatic than the potential

experience of a jury trial. Who can say that a boy who

is arrested and handcuffed, placed in a lineup, transported

in vehicles designed to convey dangerous criminals,

placed in the same kind of a cell as an adult, deprived of

his freedom by lodging him in an institution where he

is subject to be transferred to the state’s prison and in

the “hole” has not undergone a traumatic experience?

The experience of a trial with or without a jury is

meant to be impressive and meaningful. The fact that

a juvenile realizes that his case will be decided by twelve

objective citizens would allow the court to retain its

meaningfulness without causing any more trauma than

a trial before a judge who perhaps has heard other cases

involving the same juvenile in the past and may be in-

fluenced by those prior contacts. To agree that a jury

trial would expose a juvenile to a traumatic experience is

to lose sight of the real traumatic experience of incarcer-

ation without due process. The real traumatic experience

is the feeling of being deprived of basic rights. In the

matter of Reis, this Court indicated the inadequacies

of the procedure under which our court operates. A

judge who receives facts of a case from the police and

1 Reis, 7 CrL 2151 (1970).

1

8 McKEIVER v. PENNSYLVANIA

approves the filing of a petition based upon those facts

may be placed in the untenable position of hearing a

charge which he has approved. His duty is to adjudicate

on the evidence introduced at the hearing and not be

involved in any pre-adjudicatory investigation.

It is contrary to the fundamental principles of due

process for the court to be compelled, as it is in this state,

to act as a one-man grand jury, then sit in judgment on

its own determination arising out of the facts and pro-

ceedings which he conducted. This responsibility be-

longs with a jury.

BACKLOG

An argument has been made that to allow jury trials

would cause a great backlog of cases and, ultimately,

would impair the functioning of the juvenile court. The

fact however is that there is no meaningful evidence that

granting the right to jury trials will impair the function

of the court. Some states permit jury trials in all juvenile

court cases; few juries have been demanded, and there

is no suggestion from these courts that jury trials have

impeded the system of juvenile justice.

In Colorado, where jury trials have been permitted by

statute, Judge Theodore Rubin of the Denver Juvenile

Court has indicated that jury trials are an important

safeguard and that they have not impaired the functioning

of the Denver Juvenile Conrts. For example, during the

first seven months of 1970, the two divisions of the Denver

Juvenile Court have had fewer than two dozen jury trials,

in both delinquency and dependency-neglect cases. In

Michigan, where juveniles are also entitled to a jury

trial, Judge Lincoln of the Detroit Juvenile Court indi-

cates that his court has had less than five jury trials in

the year 1969 to 1970.

The recent Supreme Court decision of Williams v.

Florida, 90 S. Ct. 1893 (June 22, 1970), which held that

the constitutional right to trial by jury in criminal cases

McKEIVER v. PENNSYLVANIA 9

does not require a twelve-member jury, could be imple-

mented to facilitate the transition to jury trials. A jury

of less than twelve members would be less cumbersome,

less “formal,” and less expensive than the regular twelve-

member jury, and yet would provide the accused with

objective fact-finders.

In fact the very argument of expediency, suggesting

“supermarket” or “assembly-line” justice is one of the

most forceful arguments in favor of granting jury trials.

By granting the juvenile the right to a jury trial, we

would, in fact, be protecting the accused from the judge

who is under pressure to move the cases, the judge

with too many cases and not enough time. It will pro-

vide a safeguard against the judge who may be prejudiced

against a minority group or who may be prejudiced

against the juvenile broughs before him because of some

past occurrence which was heard by the same judge.

There have been criticisms that juvenile court judges,

because of their hearing caseload, do not carefully weigh

the evidence in the adjudicatory phase of the proceedings.

It is during this phase that the judge must determine

whether in fact the evidence has been established beyond

a reasonable doubt that the accused committed the acts

alleged in the petition. Regardless of the merit of these

criticisms they have impaired the belief of the juveniles,

of the bar and of the public as to the opportunity for

justice in the juvenile court. Granting the juvenile the

right to demand that the facts be determined by a jury

will strengthen the faith of all concerned parties in the

juvenile system

It is important to note, at this time, a definite side

benefit of granting jury trials, i e., an aid to rehabilitation.

The child who feels that he has been dealt with fairly

and not merely expediently or as speedily as possible will

be a better prospect for rehabilitation. Many of the

children who come before the court come from broken

— —

10 McKEIVER v. PENNSYLVANIA

homes, from the ghettos; they often suffer from low self.

esteem; and their behavior is frequently a symptom of

their own feelings of inadequacy. Traumatic experiences

of denial of basic rights only accentuate the past depriva-

tion and contribute to the problem. Thus, a general

societal attitude of acceptance of the juvenlie as a person

entitled to the same protection as an adult may be the

true beginning of the rehabilitative process.

PUBLIC TRIAL

Public trial in the judgment of this Court does not af-

fect the juvenile court philosophy.

In re Oliver Mr. Justice Buack reviews the history

of the public trial. Its origins are obscure, but it seems

to have evolved along with the jury trial guarantee in

English common law and was then adopted as a provision

of the Federal Constitution as well as by most state con-

stitutions. Among the benefits of a public trial are the

following:

1. “Public trials come to the attention of key wit-

nesses unknown to the parties. These witnesses

may then voluntarily come forward and give im-

portant testimony.”

2. “The spectators learn about their government

and acquire confidence in their judicial remedies.”

3. “The knowledge that every criminal trial is sub-

ject to contemporaneous review in the form of public

opinion is an effective restraint on possible abuse of

judicial power.” (P. 270.)

Justice Buack has nothing to say on the question of

whether a public trial acts as a deterrent to crime, but it

is clear that he believes publicity to improve the quality

of criminal justice, both theoretically and practically.

233 U. 8. 257.

McKEIVER v. PENNSYLVANIA 11

As for the juvenile trial issue, he writes:

“Whatever may be the classification of juvenile

court proceedings, they are often conducted without

admitting all the public. But it has never been the

practice to wholly exclude parents, relatives, and

friends, or to refuse juveniles the benefit of counsel.”

(P. 266.)

In fact, the juvenile proceedings as presently conducted

are far from secret. Witnesses for the prosecution and

for the defense, social workers, court reporters, students,

police trainees, probation counselors, and sheriffs are pres-

ent in the courtroom. Police, the Armed Forces, the

Federal Bureau of Investigation obtain information and

have access to the police files. There seems no more

reason to believe that a jury trial would destroy con-

fidentiality than would witnesses summoned to testify.

The Court also notes the report of the PRESIDENT’S

COMMISSION OF LAW ENFORCEMENT AND AD-

MINISTRATION OF JUSTICE, THE CHALLENGE

OF CRIME IN A FREE SOCIETY 75 (1967), wherein

it is stated:

“A juvenile’s adjudication record is required by the

law of most jurisdictions to be private and confi-

dential; in practice the confidentiality of those re-

ports is often violated.” Furthermore, “[s]tatutory

restrictions almost invariably apply only to court

records, and even as to those the evidence is that

many courts routinely furnish information to the

FBI and the military, and on request to government

agencies and even to private employers.”

JUDGE’S EXPERTISE

The Court is also aware of the argument that the

juvenile court was created to develop judges who were

experts in sifting out the real problems behind a juvenile’s

natn OIE MEE LOTTE

12 McKEIVER v. PENNSYLVANIA

breaking the law; therefore, to place the child's fate in

the hands of a jury would defeat that purpose. This

will, however, continue to leave the final decision of dis-

position solely with the judge. The role of the jury

will be only to ascertain whether the facts, which give

the court jurisdiction, have been established beyond 3

reasonable doubt. The jury will not be concerned with

social and psychological factors. These factors, along

with prior record, family and educational background,

will be considered by the judge during the dispositional

phase.

Taking into consideration the social background and

other facts, the judge, during the dispositional phase, will

determine what disposition is in the best interests of the

child and society. It is at this stage that a judge's ex-

pertise is most important, and the granting of a jury trial

will not prevent the judge from carrying out the basic

philosophy of the juvenile court.

Trial by jury will provide the child with a safeguard

against being prejudged. The jury clearly will have no

business in learning of the social report or any of the

other extraneous matter unless properly introduced under

the rules of evidence. Due process demands that the

trier of facts should not be acquainted with any of the

facts of the case or have knowledge of any of the cir-

cumstances, whether through officials in his own depart-

ment or records in his possession. If the accused believes

that the judge has read an account of the facts submitted

by the police or any other report prior to the adjudicatory

hearing and that this may prove prejudicial, he can de-

mand a jury and insure against such knowledge on the

part of the trier of the facts.

WAIVER OF JURY TRIAL

Counsel also questions whether a child can waive his

right to a jury trial or, in fact, whether a parent or counsel

may waive.

McKEIVER v. PENNSYLVANIA 13

When the waiver comes up for hearing, the Court

could, at its discretion, either grant or refuse the juvenile’s

waiver of a jury trial, and/or appoint a guardian or legal

counsel to advise the child.

My experience has shown that the greatest percentage

of juveniles who appear before the court in felony cases

have lived appalling lives due to parental neglect and

brutality, lack of normal living conditions, and poverty.

This has produced in them a maturity which is normally

acquired much later in life. They are generally well

aware of their rights in a court of law. However, in

those cases where a child clearly needs guidance, the

court-appointed guarandian or attorney could explain to

him the implications of a waiver. The jvvenile’s rights

and interests would thus be protected every bit as strin-

gently as they are today before he is allowed to plead

guilty or not guilty to a complaint. A guilty plea is,

after all, a waiver of the right to trial altogether.

Counsel is placed with the responsibility of explaining

to the juvenile the significance of guilty and nolo con-

tendere pleas, of instructing the juvenile on the preroga-

tive to take the witness stand, and is expected to advise

his client in the same manner as he would an adult to

stand trial. And now counsel suggests to the Court that

counsel is not capable of explaining and waiving the

right to a jury trial. The Court fails to see the distine-

tion between this waiver and the absolute waiver, to wit,

a guilty plea. Counsel should act in the best interest

of his client, even if this may be in conflict with the par-

ents. On a number of occasions this Court has appointed

counsel for a juvenile whose parents could not afford to

retain private counsel, and where the parents’ interests

were in conflict with those of the child. This procedure

will be continued and the Court will continue to rely

on the good judgment of the bar.

The Court could easily require that a waiver of a jury

trial be made in person by the juvenile in writing, in

14 McKEIVER v. PENNSYLVANIA

open court, with the consent and approval of the Court

and the attorney representing both the juvenile and the

state. The judge could ascertain as to whether the ju-

venile can intelligently waive his right and, if necessary,

appoint counsel to advise the youth as to the implica-

tions connected with the waiver. This could be accom-

plished without any difficulty through means presently

available to the Court.

JURY OF PEERS

One of the most interesting questions raised is that

concerning the right of a juvenile to a trial by his peers,

Counsel has suggested that a jury of a juvenile’s peers

would be composed of other juveniles, that is, a “teenage

jury.“ Webster's Dictionary, Second Edition, 1966, de-

fines a peer as an equal, one of the same rank, quality,

value. The word “peers” means nothing more than citi-

zens, In re Grilli, 179 N. V. S. 795, 797. The phrase

“judgment of his peers” means at common law, a trial by

a jury of twelve men, State v. Simon, Kan. 752. “Judg-

ment of his peers” is a term expressly borrowed from the

Magna Charta, and it means a trial by jury, Ex parte

Wagner, 58 Okl. Cr. 161. The Declaration of Inde-

pendence also speaks of the equality of all men. Are we

now to say that a juvenile is a second-class citizen, not

equal to an adult? The Constitution has never been con-

strued to say women must be tried by their peers, to wit,

by all-female juries, or Negroes by all-Negro juries.

The only restriction on the makeup of the jury is that

there can be no systematic exclusion of those who meet

local and federal requirements, in particular, voting

qualifications.

The Court notes that presently in some states 18-year-

olds can vote. Presumably, if they can vote, they may

also serve on juries. Our own legislature has given first

McKEIVER v. PENNSYLVANIA 15

to an amendment to the Constitution to permit

18-year-olds to vote. Thus, it is quite possible that we

will have teenage jurors sitting in judgment of their so-

lled “peers.”

CRIMINAL PROCEEDING

The argument that the adjudication of delinquency is

not the equivalent of criminal process is spurious. This

Court has discussed the futility of making distinctions on

the basis of labels in prior decisions. Because the legis-

lature dictates that a child who commits a felony shall

be called a delinquent does not change the nature of the

crime. Murder is murder; robbery is robbery—they are

both criminal offenses, not civil, regardless and inde-

pendent of the age of the doer. . . .

It is noteworthy that in our statute there is not an

express statutory provision indicating that the proceed-

ings are civil. Trial by jury in Rhode Island is guaran-

teed to all persons, whether in criminal cases or in civil

cases. That right existed prior to the adoption of the

Constitution; and certainly whether one is involved in

a civil or criminal proceeding of the Family Court in

which his “liberty” is to be “taken” “imprisoned” “out-

lawed” and “banished” he is entitled to a trial by jury.

(Henry v. Cherry & Webb, 30 R. I. 13, at 30).

This Court believes that although the juvenile court

was initially created as a social experiment, it has not

ceased to be part of the judicial system. In view of the

potential loss of liberty at stake in the proceeding, this

Court is compelled to accord due process to all the liti-

gants who come before it; and, therefore, all of the pro-

visions of the Bill of Rights, including trial by jury, must

prevail.

The Court concludes that the framers of our Consti-

tution never intended to place the power in any one man

or official, and take away the “protection of the law from

16 McKEIVER v. PENNSYLVANIA

the rights of an individual.” It meant “to secure the

blessings of liberty to themselves and posterity.” The

Constitution was written with the philosophy based upon

a composite of all of the most liberal ideas which came

down through the centuries. The Magna Charta, the

Petition of Rights, the Bill of Rights and the Rules of

Common Law; and the keystone is the preservation of

individual liberty. All these ideas were carefully inserted

in our Constitution.

The juvenile is constitutionally entitled to a jury trial.