[Vol. 18
The Continuing Turbulence Surrounding the Parens Patriae
Concept in American Juvenile Courts (Part 2)
Kechin Wang, Q.C.
VI. TRENDS
a. Right to Counsel and Waiver of Counsel ……………………………………..
b. Trial by Jury ……………………………………………………………………………………..
c. R ight to Treatm ent ……………………………………………………………………………
d. R ight to B ail ………………………………………………………………………………………
e. H earsay Evidence ………………………………………………………………………………
418
429
439
444
446
f. Should there be Two Separate Hearings – Adjudication and
D isposition ? ……………………………………………………..
.. …….. …….. …….. ……. .. …… 451
g. Should there be Different Kinds of Juvenile Courts? ……. . ….. .
. . 454
V II. CON CU SION …………………………………………………………………………………………..
458
.0 + +
a. Right to Counsel and Waiver of Counsel
There is a distinction between certain rights of persons to make
various choices and rights of persons to be protected from the
choices made by others. In the first category are voting rights,
right to freedom of worship, right to free expression. In the second
category are the right not to be imprisoned without due process,
right not to be molested, right to protection from invasion of
privacy. The second type of rights requires no rationality of the
person who can claim them and would include the right to counsel.
Since the right to counsel is founded on the incompetency or
inability of the man in the street to defend himself in court, it follows
there is an even greater right to counsel when applied to juveniles
in trouble with the law because of their greater incompetence and
No. 3]
PARENS PATRIAE CONCEPT
ignorance. A lawyer’s function in court is not only to present the
facts in a favourable light, but also to create rights through know-
ledge where before they remain undiscovered. 84
Even before Gault, the right to counsel of a juvenile was not
denied. In In re Pof
s 5 Curran, D. J., stated:
… the only possible reason for the Juvenile Court Act was to afford the
juvenile safeguards in addition to those he already possessed. The legis-
lative intent was to enlarge, not to diminish, these protections… Where
the child commits an act, which act if committed by an adult would
constitute a crime, then due process in the juvenile court requires that
the child be advised that he is entitled to the effective assistance of
counsel. 86
In Shioutakon v. District of Columbia,8 7 a 15-year-old was
charged with using an automobile without the owner’s consent.
On appeal before the Court of Appeals, D. C. Circuit, Bazelon,
Circuit Judge, stated:
Our concern for the fair administration of justice impels us to hold that,
in this and in similar cases in the future, the juvenile must be advised
that he has a right to engage counsel or have counsel named on his
behalf. And where that right exists, the court must be assured that any
waiver of it is intelligent and competent.8 8
He then continued:
We are in full accord with the objectives of the act to enable the court
to deal with children in an informal manner and to encourage disposition
on the basis of all relevant social data, looking toward treatment rather
than punishment. Requiring the court to inform an alleged delinquent
like appellant, against whom a petition has been filed, that he has a
right to counsel is not, we think, incompatible with these objectives.89
Perhaps the leading case for the opposing view is the Dotson
case decided before the California Supreme Court ‘in 1956.90 Here
the juvenile was convicted of murder, burglary and robbery in the
criminal court. He was then referred to the Superior Court for
criminal proceedings by the juvenile court where a hearing was
had without counsel, and the juvenile court found he was not “a
good subjet” for rehabilitation.
84 A. Kleinfeld, The Balance of Power among Infants, their Parents and
the State, (1970), 4 Family Law Quarterly 320.
85 135 F. Supp. 224 (U.S.D.C. District of Columbia, 1955).
86 Ibid., at pp. 225, 227.
87 236 F. 2d 666 (D.C.C.A., 1956).
88 Ibid., at p. 670.
SO ld. For support of this right and comprehensive review of cases see
Riederer, The Role of Counsel in the Juvenile Court, (1962), 2 Journal of Family
Law 16.
9OPeople v. Dotson, 299 P. 2d 875 (California Sup. Ct., 1956).
McGILL LAW JOURNAL
[Vol. 18
Shenu, J. stated:
But proceedings before the Juvenile Court, even in cases where a criminal
charge is pending in the Superior Court, are not criminal in nature.
They are in the nature of guardianship proceedings ijn which the state
as parens patriae seeks to relieve the minor of the stigma of a criminal
conviction and to give him corrective care, supervision and training…
While such minors are as much entitled to constitutional guarantees as
when subjected to criminal proceedings, … nevertheless, because of the
nature of the proceedings, the denial of those requirements which have
been recognized as elements of a fair trial does not necessarily deprive
one of the due process of law in Juvenile Court proceedings. The fact
that a minor is not represented by counsel need not be a denial of due
process in the Juvenile Court… It is only when by such lack of re-
presentation of the minor undue advantage is taken of him or he is
otherwise accorded unfair treatment resulting in a deprivation of his
rights that it can be said he has been denied due process of law. There
is nothing in the present case to suggest such deprivation or unfair
treatment.9 1
In 1959 the Standard Juvenile Court Act, promulgated by the
National Council on Crime and Delinquency, in cooperation with
the U.S. Children’s Bureau and the National Council of Juvenile
Court Judges, recommended the following statutory language to
assure legal representation for juveniles:
As soon as practicable after the filing of a petition, and prior to the
start of a hearing, the court shall inform the parents, guardian or cus-
todian, and the child when it is appropriate to do so that they have a
right to be represented by counsel at every stage of the proceeding.
If any of them requests it but is found by the court to be financially
unable to employ counsel, counsel shall be appointed by the court….0
Judge Eastman, founder of the U.S. National Council of Juvenile
Court Judges in 1937, said:
The judge should insist that persons appearing in the juvenile court are
entitled to advice of counsel. He should see to it that children and their
parents know their rights in this matter. He does not discharge his
responsibility merely by not denying the right to counsel. He must point
it out to those who are confused or too ignorant to know of itY3
In 1962, the American Advisory Council of Judges to the National
Council of Crime and Delinquency asserted not only that a child
has a right to counsel, but that there is such a positive benefit
to be gained by having an attorney represent a juvenile that a
judge should often assign counsel where the juvenile has none.”
91 Ibid., at p. 877, per Sheny, J.
9 2 Standard Juvenile Court Act, art. V, s. 19 (6th ed., 1959).
9 3 Eastman, The Juvenile Court Judge’s Job, (1959), 5 N.P.P.AJ. 414.
9 4 Procedure and Evidence in Juvenile Courts, N.C.C.D. (New York, 1962).
No. 31
PARENS PATRIAE CONCEPT
Prior to Gault, while counsel may have a right to appear
and represent both parent and juvenile under the due process
clause of the Fourteenth Amendment, no state juvenile court law con-
tained provisions requiring that any of the parties be advised of
the right to counsel. 95 The presence of an attorney in juvenile court
was a rarety.
Changes have since occurred. In St. Louis,9
the figures were:
1965 – 314 attorneys, 1966 – 529 attorneys, 1967 – 764 attorneys,
1968 – 586 attorneys, 1969 – 799 attorneys.
In Philadelphia, only about 5% of the children appearing in
juvenile court had been represented by counsel in the period im-
mediately preceding 1967. Eight months later, in October, 1967 close
to 40% were represented.97
In a recent survey9 consisting of over 500 questionnaires sent
to delinquent juveniles in state institutions of Pensylvania, one of
the questions asked was – why did the juvenile not get a lawyer?
The answers were:
i) probation officer advised against it …………………… 24%
ii) parents advised against it ……………………………………
17%
iii) juvenile did not think he needed one ………………….
31%
28%
iv) other reasons …………………………………………………………..
Another question asked was – who obtained the lawyer? The
answers were: parents 35%, friend, guardian 4%, probation officer
23%, juvenile court 38%.
O5 Reiderer, op. cit., n. 89; Ketcham, Legal Renaissance in the Juvenile Court,
60 Nw. U. L. Rev. 585. Two of the most advanced jurisdictions
(1965),
were New York and California. Under the New York law guardian system,
established by the Family Court Act (1962), on request of the minor or his
parents or guardian the court must appoint counsel if the minor is not
independently able to retain a lawyer.
The Act requires informing the minor or parent of the right to counsel
and permits the court on its own motion to make an appointment without
request. In California, if the minor or parent desired counsel and is indigent,
the court must make an appointment if the juvenile is charged with a
criminal act which if committed by an adult would be considered a felony,
and in all other cases the court may appoint counsel if requested. Where there
appears to be a conflict of interest between parent and child, the court
can make additional appointments. Comment, Criminal Offenders in the
Juvenile Court: More Brickbats and another Proposal, (1966), 114 U. Pa. L. Rev.
1171.
Court – Advocate or Social Worker?, (1970), 14 St-Louis U. Li. 561.
96McMillan & McMurtry, The Role of Defence Lawyer in the Juvenile
97 Coxe, Lawyers in Juvenile Court, (1967), 13 Crime and Delinquency 488.
98 Walker, The Lawyer – Child Relationship: A Statistical Analysis, (1971),
9 Duquesne L. Rev. 627.
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[Vol. 18
The survey found that 71% of the juveniles questioned con-
firmed that they were advised of their right to have a lawyer.
Sixty-two per cent of these with lawyers thought the lawyers should
have done more for them. Twenty-five per cent felt the lawyer
had done his bestf 9
Does the juvenile have a right to waive counsel?
In the Gault case, there is evidence that the parent may waive
this right in behalf of the child. 00 This does not seem reasonable
in every instance. Sometimes the parents manifest hostility in
varying degrees toward the child, or disapproval of his conduct,
express or implied. In delinquency proceedings alleging “incor-
rigibility” or “truancy” or “running away from home”, it is often
99 Nor should the juvenile’s right to counsel depend upon the parent’s
to engage one. Thus, in Phillips v. Cole, 298 F. Supp. 1049
willingness
(U.S.D.C., 1968), it is stated at p. 1052 per Keady, C.J., that:
A court has the inherent duty of satisfying itself by ascertaining from
any person, adult or infant, whether or not he has funds with which to
hire counsel … where indigency is found to exist, and after full advice,
if the accused does not waive an offer of court-appointed counsel, the
court has the further duty of appointing counsel to represent him before
proceeding with trial.
In In re Haas, 168 S.E. 2d 457 (1969), the North Corolina Court of Appeals
held that facts must be elicited to show financial ability to retain counsel
before a waiver of counsel can be accepted.
100 In re Gault, 387 U.S. 1 (1966), at pp. 41-42.
At the habeas corpus proceeding Mrs. Gault testified
that she knew
that she could have appeared with counsel at the juvenile hearing. This
knowledge is not a waiver of the right to counsel which she and her juvenile
son had, as we have defined it. They had a right expressly to be advised
that they might retain counsel and to be confronted with the need for specific
consideration of whether they did or did not choose to waive the right.
If they were unable to afford to employ counsel, they were entitled in view
of the seriousness of the charge and the potential commitment, to appoint
counsel, unless they chose waiver. Mrs. Gault’s knowledge that she could
employ counsel was not an ‘intentional relinquishment or abandonment’ of a
fully known right.
The above reference
to Mrs. Gault only of her knowledge of waiver
and not that of the son, taken in the context of waiver for both, appears
to imply that waiver by parent is a good waiver for both parent and child.
No. 3]
PARENS PATRIAE CONCEPT
the parent who brings the charge and is the complaining witness.””
At other times the parent is so worn out by the child’s behavior
that his attitude is “just get him out of here”. Can such a parent
be said to be acting in the best interest of the child?
Gault says that the right to counsel is not waived if there is
no knowledge of this right. It is therefore the responsibility of
the court to notify the juvenile of his right to counsel.
Is waiver valid if based on the juvenile’s desire to save his parents’
counsel fees? In a recent California decision,0 2
the California
Supreme Court reversed a judgment of the lower court, and held
that a juvenile’s waiver of counsel made to avoid or reduce parental
pressure or displeasure is neither intelligent nor voluntary. The
relevant California statute requires the appointment of counsel when-
ever the juvenile does not execute a waiver and payment thereof
by parents if they can afford to do so. Whether parents can waive
the juvenile’s right to counsel to save themselves counsel fees is
not an issue.0 3
It has also been questioned whether waiver of counsel can be
supported without the presence of counsel since the juvenile may
not fully appreciate the consequences in so doing. It may be ques-
tioned whether a juvenile can, by himself, knowingly and under-
standingly waive a constitutional right.’4
101 In a study prepared by Lepstein, Stapleton & Teitelbaum, op. cit., n. 56,
the amount of conflict between parent and child is approportioned as follows:
Gotham
(fictional name
or city just
under I million
population)
Metro
(fictional name
of city between
1 and 2 million
population)
Zenith
(fictional name
of city with 5
million
population)
76%
13%
11%
89%
–
11%
No apparent conflict
Implicit conflict
Explicit conflict
68%
15%
17%
0 2 1n re H., 468 P. 2d 204 (California Sup. Ct., 1970).
1
102But cf. Blaylock v. De Foor, 171 S.E. 2d 146 (1969), where the Georgia
Supreme Court held that failure of the juvenile court to provide counsel
was not a denial of due process when the parent was able to engage one.
In In re L.G.T., 216 S. 2d 54 (Fla. Dist. C.A.) it was held that parental failure
to provide counsel must not deprive the child of his constitutional rights.
104 In People v. Lara, 432 P. 2d 202 (1967), Mosk, J. stated in the Supreme
Court of California, at pp. 217-218:
It is settled that ‘the determination of whether there has been an intelli-
gent waiver of the right to counsel must depend, in each case, upon the
particular facts and circumstances surrounding that case,
including
‘the background, experience and conduct of the accused… This rule
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[Vol, 18
So much for the right to waiver. The next questions are –
when does the right to counsel arise and for how long does it
continue? Is the right limited to cases in which the juvenile may
be institutionalized and his freedom curtailed?
The holding in Gault is limited to the adjudication stage. Since
in adult cases before the criminal courts this right becomes ap-
plicable as soon as one is taken into custody and before question-
ing,10 5 it seems that this right should be extended to juveniles at
the earliest possible moment.
The first problem the lawyer should be facing is to consider
the validity of the juvenile’s -arrest or his being taken into custody.
Other matters which he should consider are in-custody interro-
gations, search and seizure procedures, identifications.0 0 The role
applies to minors as well as adults, and the age of the defendant is simply
a factor, although an important one, to be weighed with many others
in determining in any given case whether there has been a knowing and
intelligent waiver of counsel.
See also: McMillan & McMurtry, op. cit., n. 96. In Lepstein, Stapleton &
Teitelbaum, op. cit., n. 56, the authors questioned whether minors can
“knowingly and intelligently” waive the rights guaranteed by Gault.
In a study made in California, 86 out of 90 juveniles questioned freely
and voluntarily waived their constitutional rights, including the right to
counsel. Of the 86, only 5 achieved an understanding score. In other words
81 out of the 86 did not fully and consciously understand their rights. The
right to silence seems fairly well understood. But the right to have counsel
was understood by about 11 of the juveniles. The conclusion was that the
great majority should be advised and counselled carefully if they are to
understand their rights completely. Ferguson & Douglas, A Study of Juvenile
Waiver, (1970), 7 San Diego L. Rev. 39.
It is the recommendation of the President’s Crime Commission (President’s
Commission on Law Enforcement and Administration of Justice, Report:
The Challenge of Crime in a Free Society (1967))
that counsel should be
appointed as a matter of course without requiring any affirmative choice
by the juvenile or his parents. Following this recommendation, one of the
Family Courts in New York City has adopted the practice of saying to each
child “is it acceptable that Mr. X. act as your lawyer?” (Dyson & Dyson,
Family Courts in the United States, (1969), 9 Journal of Family Law 1.
105 See: Gideon v. Wainwright, 372 U.S. 335 (1963); Escobedo v. Illinois, 378
U.S. 478 (1964) and the celebrated case of Miranda v. Arizona, 384 U.S. 436
(1966).
106 The case of Leach v. State, 428 S.W. 2d 817 (Texas Ct. of Civil Appeal,
1968), points out the dangerous consequences to a child without counsel at
the pre-adjudication phase. Debra Leach, aged 12, was alleged to be a delin-
quent child on the basis that she “habitually deports herself so as to injure
No. 3″]
PARENS PATRIAE CONCEPT
of counsel should continue through the dispositional stage as well. 07
Gault involved an adjudication of delinquency based on a vio-
lation of law that would have been a crime if committed by an adult.
The decision had nothing to do with parent-neglect cases, truancy,
incorrigibility or other offences peculiar to juveniles, which may
collectively be called PINS (persons in need of supervision).
It has been argued, however, that the right to counsel should
not be limited to Gault cases.
The label of ‘delinquency’ attaches regardless of the offence and the
life-long stigma which all too often follows does not differentiate between
institutionalization and a different disposition. Therefore, it follows that
the necessity for counsel does not vary with the nature of the offence
or endanger the morals or health of herself or others” (pp. 818-819). She
was placed in detention for 2 months during which time she was questioned
on numerous occasions by a probation officer concerning two runaway in-
cidents, “her social needs and her general background” (p. 819). Whether
the purpose of these interrogations was to gather incriminating evidence to
write up a “social study” or to work out an informal adjustment of the
case is not specified. At the hearing, the probation officier testified that
after numerous conversations with the child she had formed the opinion
that the child was endangering health and morals by the runaways and what
took place during the runaways. The Texas Court of Civil Appeals reversed
on the grounds that inculpatory statements made prior to a waiver of the
privilege against self-incrimination are inadmissible.
Had this case not been appealed, the child would have been incarcerated
on self-incriminating statements given prior to trial and without the benefit
of counsel. See also: Ferster, Courtless & Snethen, Separating Official and
Unofficial Delinquents: Juvenile Court Intake, (1970), 55 Iowa L. Rev. 864;
McMillan & McMurtry, op. cit., n. 96.
107 Once the juvenile is found delinquent, the attorney’s obligation does not
end. The lawyer can also serve an important role at the dispositional stage.
He can disclose factors related to the matter of treatment and suggest possi-
ble alternatives. If the attorney is aware of any programs, agencies or other
sources of assistance to the juvenile, he can help to provide the child with
a treatment plan which best meets his needs. Furthermore, by adequately
defending his client, the attorney will gain the confidence which will make
him the one best suited for explaining the court’s decision to the child.
Comment, In re Gault and the persisting questions of procedural due process
and legal ethics in juvenile courts, (1968), 47 Neb. L. Rev. 558.
The defence lawyer should also perform at the dispositional stage to
question the probation officer’s reports, his conclusions and ‘ecommenda-
tions. See: Handler, The Juvenile Court and the Adversary System: Problems
of Function and Form, (1965), Wisc. L. Rev. 7.
McGILL LAW JOURNAL
[Vol. 18
and the right ought to extend to all cases which may result in an adjudi-
cation of delinquency.108
Assuming that the arguments for wider use of counsel is valid,
the next question is what are his functions?
The great fear is that lawyers, trained in adversary proceedings
and skilled in technical procedures characteristic of other tribunals
especially the criminal courts – will convert the juvenile court
–
into a legal arena for a battle of wits and technicalities that will
lose sight of the main purpose of these courts –
that of doing
what is best for the child. To be truly effective, the lawyer might
assume his usually accepted role of advocate at the intake and
adjudicatory stages, but not at the dispositional stage when he
should assist the court in deciding what is best for rehabilitation
of the juvenile.
The function of a lawyer then in juvenile courts is different
in kind and degree from that of the trial lawyer.109 Recognizing
these differences, the National Council of Juvenile Court Judges
convened a nation-wide conference in 1964 on “the role of the
108 (1968), 47 Neb. L. Rev. 558, at p. 568. Paulsen, op. cit., n. 79, at p. 569
had this to say:
Is a child entitled to counsel if the court does not deprive him of liberty
in the sense of committing him to an institution, but merely places him
on probation? Does he have the same right if the alleged delinquency is
conduct short of criminality, e.g., ‘associating with immoral persons’ or
‘incorrigibility’ and ‘acting beyond the control of his parents’?
Both questions, in the author’s view, require an affirmative answer …
In spite of the theory to the contrary, an adjudication of delinquency,
in itself, is harmful and should not be capriciously imposed.
109 There are divergent views. Levin, in The Role of the Lawyer in Juvenile
Proceedings, (1968), 39 Pa. B. A. Q., at p. 427 stated:
My role now is not to be a probation officer, a psychiatrist or a social
worker, for which professions I am certainly not qualified. My task is
to be a lawyer. My obligation is to obtain as nearly as possible for my
client, my concept of justice.
Some writers believe that counsel “ought to play the part of pure advo-
cate at all stages of the proceedings”. Dyson and Dyson, op. cit., n. 104,
at p. 58; Paulsen, Juvenile Courts and the Legacy of ’67, (1968), 43 Indiana
L. J. 527, at pp. 538-39. Others believe that the adversary role is applicable
only at the fact-finding or adjudicatory stage and at disposition he should
act as a member of the Court. Dyson and Dyson, ibid., at p. 60. A third
view is that the lawyer’s role should be modified throughout as the concept
of guardianship requires consideration of the child’s welfare as well as his
legal rights. “The role of the ‘wise parent’ has, in effect, been transferred
from the court itself to the law guardian.” Isaacs, The Role of the Lawyer
in Representing Minors in the New Family Court, (1963), 12 Buffalo L. Rev. 501,
at p. 507.
No. 3]
PARENS PATRIAE CONCEPT
lawyer in juvenile court”. By consensus, it was decided that the
lawyer in juvenile court had three distinct functions: 110
1) to advocate and defend his client’s proper legal rights,
2) to be his client’s legal guardian with special concern of his
welfare and best interest and,
3) as an officer of the court, to be concerned with the admin-
istration of justice.
It is submitted that the lawyer can and should contribute to
the rehabilitation scheme of the juvenile. To do this, he must
know the child and become his “confident”. He is a big brother,
counsellor and friend –
all in one. He must be sensitive to the
child’s needs. At the disposition hearing, he should cross-examine
social reports, psychiatric evaluation and psychological assessments
for inconsistencies, errors and omissions. Even after disposition,
if the child is sent to a training school or some other institution
outside his home, the lawyer should follow the progress of the
child and assess the result, if any, of any rehabilitation program.
He should be available at hearings for revocation of probation and
revocation of after-care status (equivalent to adult parole), m His
extended activities thus include enforcement of the child’s rights
after disposition. He will have the positive responsibility of seeing
that the court order is carried out.
” 0 Ketcham, op. cit., n. 95. In the summer of 1967, 32 juvenile probation
officers throughout Missouri took part in a one-week institute to study changes
in the juvenile courts as a result of the latest Supreme Court decisions.
A questionnaire was submitted to assess the role of the lawyer in juvenile
court. According to this assessment, the lawyer was expected not only to
assume the traditional legal role, but also to be involved in welfare func-
tions when necessary, e.g., presentation of alternative treatment programs
at the dispositional phase. It was the majority opinion that the presence
of a lawyer resulted in fairer treatment of the child, a more thorough job
by the probation officer, and a rise in status of the court. Brennan, The
Probation Officer’s Perception of
the Attorney’s Role in Juvenile Court,
(1970), 16 Crime & Delinquency 172.
111 See: Johnston, Function of Counsel in Juvenile Court, (1970), 7 Osgoode
Hall LJ. 199; Note, Rights and Rehabilitation in Juvenile Courts, (1967), 67
Colum. L. Rev. 281. Ferster, Courtless and Snethen, The Juvenile Justice Sys-
tem: In Search of the Role of Counsel, (1971), 39 Fordham L. Rev. 375.
In 1970, the Council of Judges of the National Council on Crime and
Delinquency considered counsel at disposition so important that it recom-
mended assignment of counsel on request, even if the juvenile waived the
right at adjudication. N.C.C.D. Council of Judges, Provision of Counsel in
Juvenile Courts 17 (1970).
McGILL LAW JOURNAL
[Vol. 18
The role of the lawyer has been well stated:
The lawyer must remember that he is not really defending his client
in the criminal or civil sense, but advising both the child and the court
of the best course of action consistent with society’s needs and the
rights of the client. More important, since the youth is so impression-
able.., the conduct of both the attorney and the court may forever
mark the child with either respect or hatred of the law, and thus
determine his future conduct as a member of society. Admittedly the
dual role of the attorney seems to be conflicting when viewed in light
of his adversary function in criminal proceedings. He has a duty to zeal-
ously advocate the parents’ wishes, while, at the same time, he is an
officer of a court whose function goes beyond the mere adjudication of
‘guilty’ or ‘innocent’. Although it is difficult to rationalize along tradi-
tional lines a view of the attorney’s role in conjunction with parens
patriae will resolve the conflict by seeing that the parents’ desires are
concurrent with the court’s in deciding what is best for the child.112
Judge Ketcham, President of the National Council of Juvenile
Court Judges, foresaw new social responsibilities for lawyers:
The original founders of the juvenile court movement intended a balance
between law and social work in the court. After more than four decades
of imbalance, the original design will soon be restored. This will provide
daily interchange and communication between lawyers and social workers
in search of the common goal of individualized justice for each juve-
nile. The result should be greater understanding of the tenets and merits
of each other’s profession and a new respect for one another… They
(juvenile courts) will become more accepted vehicles of co-ordinated
legal research looking toward effective social control through law.113
There has been no clear guidance from the courts or legislatures
as to what the role of counsel ought to be. One judicial opinion
which even mentions the issue is In re Bacon 114 where the juveniles
claimed they were deprived of effective counsel when their lawyer
allowed substantive parts of the offence to be elicited from their
testimony rather than from independent evidence. The California
Court of Appeals rejected this argument, stating that juvenile
proceedings are not criminal. As a second argument, the Court
also pointed out that counsel’s activities were proper under the
statute which provides that “except where there is a contested
issue of fact or law, the proceedings shall be conducted in an
informal non-adversary atmosphere with a view to obtaining the
maximum co-operation of the minor…” “‘
112 Walker, op. cit., n. 98, at p. 647.
113 Ketcham, op. cit., n. 95, at pp. 596 and 597.
114 240 Cal. App. 2d 34 (1966).
115 Ibid., at p. 45.
No. 3]
PARENS PATRIAE CONCEPT
In view of the growing importance of lawyers in juvenile courts
and the special responsibilities they face, it is evident that much
specialized training is required. This need, however, is far from
fulfilled.” 6
b. Trial by Jury
to jury trial although
Gault did not specifically state whether or not a juvenile
the majority opinion dis-
is entitled
couraged such a practice. 117 In Duncan v. Louisiana “18 and Bloom
v. Illinois 19 the U.S. Supreme Court held that for serious offences
trial by jury was fundamental to the American scheme of justice.
In the former case, Justice White stated:
Because we believe that trial by jury in criminal cases is fundamental
to the American scheme of justice, we hold that the Fourteenth Amend-
ment guarantees a right of jury trial in all criminal cases which – were
they to be tried in a federal court – would come within the Sixth
Amendment’s guarantee. 120
… Our conclusion is that in the American states, as in the federal
judicial system, a general grant of jury trial for serious offences is a
fundamental right, essential for preventing miscarriages of justice and
for assuring that fair trials are provided for all defendants. 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.121
In Bloom v. Illinois Justice Fortas stated:
I believe, as my brother White’s opinion for the Court in Duncan v.
Louisiana persuasively argues, that the right to jury trial in major
prosecutions, state as well as federal, is so fundamental to the protec-
tion of justice and liberty that ‘due process of law’ cannot be accorded
without it.122
116 In 1965, only 12 out of 136 accredited law schools in the United States
have a course devoted exclusively or primarily to juvenile courts. One third
of these schools had no coverage at all and the remainder include juvenile
court law in either the criminal law or domestic relations course. Ketcham,
op. cit., n. 95, at pp. 591-92. In a study of lawyers for juveniles in Chicago
made in 1968 it was found that these were merely “small-fee” lawyers and
general practitioners. Only 2.5% of all lawyers listed in 1966 as practising in
Cook County had filed appearances in juvenile court. Platt & Freedman,
The Limits of Advocacy: Occupational Hazards in Juvenile Court, (1968), 116
U. of Pa. L. Rev. 1156.
117387 U.S. 1 (1966), at p. 36.
118391 U.S. 145 (1968).
119391 U.S. 194 (1968).
120 391 U.S. 149 (1968).
121 Ibid., at pp. 157-158.
122 391 U.S. (1968),, at p. 212.
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Despite the general wording of both judgments, it is an un-
settled question as to whether or not juveniles are entitled to
jury trials at all, be the acts charged of a criminal nature or not.123
In New York, in the Matter of Ronny, 24 a case prior to Gault,
it was held that minors before the juvenile court have the same
constitutional rights as adults except for the right of trial by jury,
“which is balanced by our circumscribed power and the confi-
dentiality here maintained in an effort to keep the record of a
child unblemished”. 25
Commonwealth v. Johnson’ 26 a case before the Supreme Court
of Pennsylvania, was decided after Gault but prior to Duncan.
Hoffman, J. delivered the judgment of the court.
… the right to a jury trial has never been held by the Supreme Court
as an essential element of due process in State proceedings, nor does its
absence deny the juvenile the opportunity to ferret out the truth. If jury
trials are inserted into juvenile court proceedings, however, the juvenile
court judge will be sorely limited in carrying out the special tasks
which the legislature has assigned to him. The juvenile court judge,
while maintaining order, must, nonetheless, be free to utilize those
procedures which we have mentioned. He must be free to relieve the
hearing of its austerity. He must be active in seeking the co-operation
of child, parents and counsel in discovering the truth. He must be pre-
pared to inject or vary his personality as the situation requires.
123The great majority of state statutes do not make provision for juries
in juvenile courts. New Jersey law specifically provides for hearings in juve-
nile court without juries. (NJ. Rev. Stat. 2A 4-35, 1952). The law in
Pennsylvania is similar. (Penn. Stat. Ann. Title II, 247, 1965) California
also makes no provision for trial by jury. The District of Columbia is a
notable exception. “The court shall hear and determine all cases of children
without a jury unless a jury is demanded by the child, his parent, guardian
or the court”. (D.C. Code Ann. 16 at 2307, Supp. V 1966) The Texas Statute,
Texas Laws 1943 Chapter 204 13, 316-17, gives juveniles the right to trial
by jury. The function of the jury is to state whether or not a child is delin-
quent. Disposition is up to the judge alone. The court need not advise the
juvenile of this right. Where a jury trial is granted on request, it is indicated
that the right is seldom exercised. “In Denver (Colorado) where jury trial
is allowed, there has been two requests for it in 25 years, and both requests
were withdrawn before trial”. Note, Kittrie, Juvenile Delinquents: the Police,
State Courts, and Individualized Justice, (1966), 79 Harv. L. Rev. 775, at pp.
793-94. In Washington, D.C., where trial by jury is provided for juveniles
by statute, there were only 2 jury trials between 1964 and 1966. Comment,
Juveniles and their Right to a Jury Trial, (1970), 15 Vill. L. Rev. 972.
124 242 N.Y.S. 2d 844 (Family Court 1963).
125 Ibid., at p. 860.
126234 A. 2d 9 (Penn. Superior Ct., 1967).
No. 3]
PARENS PATRIAE CONCEPT
The National Crime Commission Report…
to which the Supreme
Court frequently referred in Gault, contains the following significant
statement: “Most states do not provide jury trial for juveniles.., 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
impairing the juvenile court’s distinctive values…
In summary, we are in full agreement witht the holding of the
Supreme Court that the constitutional safeguards of the Fourteenth Amend-
ment guaranteed to adults must similarly be accorded
juveniles. It
is inconceivable to us, however, that our highest court attempted, through
Gault, to undermine the basic philosophy, idealism and purposes of the
juvenile court… Rather, we find that the Supreme Court recognized
juvenile courts, while acting within the constitutional guarantees 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 delin-
quent childen.’ 27
Three courts have applied the right to a jury trial to delinquency
proceedings.
In Nieves v. United States,
several months before Duncan
was decided and after Commonwealth v. Johnson and in the Matter
of Ronny (both of which cases were referred to in the judgment)
the U.S. District Court, sitting with three Circuit Judges, held that
the Federal Juvenile Delinquency Act was unconstittutional to the
extent that it required a juvenile defendant to waive his right to
a jury trial in order to be proceeded against under the Act.
Tyler, District Judge, delivered the opinion of the Court as
follows:
The right to a jury trial is available in all non-petty federal criminal
prosecutions. Notwithstanding the fact that the Federal Juvenile De-
linquency Act seems to indicate that federal juvenile court proceedings
are not to be considered criminal, we read Gault to require the availability
of that right in any federal juvenile proceeding in which a youth is
faced with incarceration for the commission of an act alleged to be
violative of federal law. It
is clear to us that proceeding which may
lead to a juvenile’s loss of liberty by incarceration, for purposes of
the Sixth Amendment right to trial by jury, is in nature a criminal
prosecution, and the constitutionally guaranteed right of a trial by jury
127Id. Other cases support this view that jury trials are not essential in
juvenile courts since the proceedings were civil and not criminal. In re
Johnson, 255 A. 2d 419 (Maryland C.A., 1969); In re Ager, 249 N.E. 2d 808
(Ohio Sup. Ct., 1969); In re Turner, 453 P. 2d 910 (Oregon Sup. Ct., 1969).
128 280 F. Supp. 994 (N.Y. Dist. Ct., 1968).
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in all federal criminal prosecutions must, therefore, accompany such a
proceeding.
Referring to Gault, he continued:
The privilege can only be raised to protect an individual from being
forced to make disclosures which could be used against him in a criminal
prosecution… In finding the privilege applicable to youths faced with
juvenile court proceedings, the Court found those proceedings to be
criminal prosecutions.
When forced to decide whether juvenile court proceedings were
civil or criminal in order to determine the applicability of a federal
right which turns on the distinction, the Court did not hesitate in
choosing the latter. We are convinced that this classification applies
equally to the right of trial by jury in a juvenile court proceeding.120
A second case applying the right to a jury trial to juvenile
proceedings is Peyton v. Nord.30 There the Supreme Court of New
Mexico limited the scope of its analysis of the jury issue to the
state constitution. The court found that the petitioner, who allegedly
violated a criminal statute, had a right to a jury trial under
the New Mexico Constitution, regardless of “whether or not the
Fourteenth Amendment of the United States Constitution would
also require it”.’3″ Although the court did not rely on Gault, it
was held that:
If the reasoning of In re Gault… is applied in this case it would be
difficult, in our view, to escape the conclusion that the jury trial
guarantees of Article II, 14, New Mexico Constitution, as well as those
of the Sixth Amendment of the United States Constitution are likewise
applicable. 3 2
Finally, a Rhode Island family court has stated:
The court is… convinced that a juvenile is entitled to a trial by jury
under the provisions of the Sixth Amendment to the U.S. Constitution,
via the Fourteenth Amendment, and which in light of the Gault decision…
will undoubtedly, in this court’s opinion, be extended to the states.183
There is, however, a preponderance of support for the view that
juveniles should not have the right to a jury trial.
The National Council on Crime and Delinquency states that
juvenile hearings should be separate and heard without a jury. 84
129 Ibid., at p. 1004.
130437 P. 2d 716 (1968).
1’1 Ibid., at p. 722.
132 Ibid., at p. 723.
1331n re Rindell, 36 U.S.L.W. 2468 (Rhode Island Family Court 1968).
134The Standard Juvenile Court Act, art. V, 19 (6th ed.) provides: “Cases
of children… shall be dealt with by the court at hearings separate from
those for adults and without a jury. The hearings shall be conducted in an
informal manner and may be adjourned from time to time”.
No. 3]
PARENS PATRIAE CONCEPT
Formal procedure is incompatible with the informal conference atmos-
phere required by the court to gain the confidence of child and parents,
to elicit the pertinent facts of the parties, their emotional states, and
the causes of the difficulty –
all of which is of the utmost importance
to a wise disposition of the case. 35
It is implied here that a jury trial would increase the formality
of juvenile hearings and thus impede the dispositional phase of the
juvenile process. The Standard Juvenile Court Act however did
not provide for separate adjudicatory and dispositional hearings as
was the case in Gault. It is therefore possible that the statement is
referring only to the dispositional phase and does not conflict with
the Gault decision declaring that adjudicatory hearings must “…
measure up to the essentials of due process and fair treatment…
The problems of pre-adjudication treatment of juveniles, and of
post-adjudication disposition, are unique to the juvenile process;
hence what we hold in this opinion with regard to the procedural
requirements at the adjudicatory stage has no necessary application
to other steps of the juvenile process” 3 6
The Children’s Bureau of the Department of Health, Education
and Welfare, in its Standards for Juvenile and Family Courts, does
not recommend jury trials in delinquency proceedings. They contend
that such proceedings are not criminal and that juries are incom-
patible with the informal setting of the court hearing. 3 As these
recommendations were published before the Gault decision was
announced,’138 the reasoning for denying the right to a jury trial
may be questionable since Gault noted that certain delinquency
proceedings resemble criminal adjudications and that informality
will not take priority over the requirements of due process and
fair treatment. 39
The President’s Commission on Law Enforcement and Admin-
istration of Justice also recommended that juveniles not be granted
jury trials. 40 Because the Report was prepared prior to the Gault
135 Comment to Standard Juvenile Court Act, ibid., at p. 48.
3 6 In re Gault, 387 U.S. 1 (1966), at p. 31. See also Note, A Due Process
1
Dilemma – Juries for Juveniles, (1968-69), 45 N. Dakota L. Rev. 251, at pp.
261-263.
’37 U.S. Dept. of Health, Education & Welfare, Children’s Bureau, Standards
for Juvenile and Family Courts 73 (1966).
13s Ibid., Supplement (March 29, 1968), at p. 1.
139 “Procedure is to law what ‘scientific method’ is to science”. In re Gault,
387 U.S. 1 (1966), at p. 21.
140 The President’s Commission on Law Enforcement and Administration
of Justice Task Force Report: Juvenile Delinquency and Youth Crime 7-8
(1967). Also cited in Carpenter, A Due Process Dilemma – Juries for Juveniles,
(1968-69), 45 N. Dakota L. Rev. 251.
McGILL LAW JOURNAL
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decision, the Commission conceded that a portion of its report,
without naming what portion, might have to be revised.141 The
Commission also relied on certain statements of Dean Paulsen. 42
The Uniform Juvenile Court Act drafted by the National Con-
ference of Commissioners on Uniform State Laws and approved
by the American Bar Association on August 7, 1968 specifically denied
jury trials without giving reasons for this view. 143
Let us now examine the case law.
In In re Burrus,144 the Supreme Court of North Carolina held
that, notwithstanding Gault and Duncan, the juvenile can claim no
right to trial by jury.45
Absent a statute providing for a jury trial, it is almost universally held
that in juvenile court delinquency proceedings the alleged delinquent
has no right under the pertinent State or Federal Constitution
to
demand that the issue of his delinquency be determined by a jury…
These cases (after citing Gault and Duncan among others) enumerate
the basic requirements of due process that must be satisfied in juvenile
proceedings; however, the right to jury trial is not listed among them.
We have not found and counsel has not cited any case supporting
the right to jury trials in juvenile proceedings. We therefore adhere
to our former decisions and hold that a juvenile is not entitled to a
jury trial in a juvenile court proceeding on the issue of delinquency. 140
In 1969, the U.S. Supreme Court in DeBacker v. Brainard 147
was given an opportunity to make a clear ruling on this question.
14″,,The Supreme Court’s decision in In re Gault, which deals with many
of the issues considered in chapter 1, was handed down while the chapter
was in press, and it has not been revised to reflect that opinion…” Ibid.,
at xi, 1.
142A jury trial would inevitably bring a good deal more formality to the
juvenile court without giving a youngster a demonstrably better fact-finding
process than trial before a judge. Paulsen, op. cit., n. 79, at p. 549.
143Hearings under this Act shall be conducted by the court without a
jury, in an informal but orderly manner, and separate from other proceedings
not included in section 3. Juvenile Court Act 24(a) (1968).
144 169 S.E. 2d 879 (1969). See also People v. “Y.O. 2404”, 291 N.Y.S. 2d 510
(1968) presently on appeal before the U.S. Supreme Court.
146 See also Estes v. Hopp, 438 P. 2d 205
(1968). The Washington court
was presented with the contention that Gault had eliminated the distinction
between juvenile and criminal proceedings so that a juvenile was entitled
to a jury trial and bail pending appeal. The court was asked to declare
unconstitutional part of the Juvenile Code, Washington Rev. Code s. 13.04.030
(1939) providing that juveniles “shall be tried without a jury” when under
the jurisdiction of the juvenile courts. This argument was dismissed by the
court. See review of this case in (1969), 44 Washington L. Rev. 481.
146 169 S.E. 2d, at p. 886.
147 396 U.S. 28 (1969).
No. 31
PARENS PATRIAE CONCEPT
The majority of the judges did not do so on a technicality148
although at least two of the dissenting justices felt strongly about
a juvenile’s right to trial by jury.149
In In re Terry 150 the Supreme Court of Pennsylvania, after
considering Gault, Kent and Duncan, decided that the Constitution
of the United States does not give juveniles the right to insist on a
jury trial provided the due process rights in Gault are observed 11
together with three others, namely,15 2
1) the right to have a transcript of the hearing,
2) the right of appellate review and
3) the right to be declared delinquent only upon evidence de-
monstrating that the facts on which the delinquency is based
are true beyond a reasonable doubt.
Roberts, J., delivering the opinion of the court, felt that in the
light of all the constitutional safeguards above-mentioned,
the
juvenile is sufficiently protected. To add a further requirement,
148 ‘Because appellant’s
juvenile court hearing was held on March 28,
1968 – prior to the date of the decisions in Duncan and Bloom –
appellant
would have had no constitutional right to a trial by jury if he had been
tried as an adult in a criminal proceeding. It thus seems manifest that this
case is not an appropriate one for considering whether the Nebraska Statute
which provides that juvenile hearings be ‘without a jury’… is constitutionally
invalid in light of Duncan and Bloom’. Ibid., at p. 30.
149 Justice Black stated: ‘I can see no basis whatsoever in the language
of the Constitution for allowing persons like appellant the benefit of those
rights (granted in Gault) and yet denying them a jury trial, a right which
is surely one of the fundamental aspects of criminal justice in the English-
speaking world… Depriving defendants of jury trials prior to Duncan
violated the Constitution just as much as would similar deprivations after
that decision…’ Ibid., at pp. 33-5. Justice Douglas also dissented. ‘Given
the fundamental nature of the right to jury trial as expressed in Duncan and
Bloom, there is, as I see it, no constitutionally sufficient reason to deprive the
juvenile of this right. The balancing of the rehabilitative purpose of the juve-
nile proceeding with the due process requirement of a jury trial is a matter
for a future Constitutional Convention.’ Ibid., at p. 38. Justice Douglas speaks
of the “rehabilitative purpose” of the juvenile court. Since such purpose is
not the primary concern of the court at the adjudication stage, his support
of jury trials could be restricted to that stage without detracting from
the intent and purpose of his argument.
150 265 A. 2d 350 (1970). At the time of writing, this case is on appeal to
the U.S. Supreme Court.
151 These are: 1) right to adequate and timely notice of charges; 2) right
to counsel; 3) right to confrontation and cross-examination; 4) privilege
against self-incrimination.
152 265 A. 2d, at p. 354.
McGILL LAW JOURNAL
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that of trial by jury, might well destroy “the traditional character
of juvenile proceedings”.
… the right to trial by jury is the one which would most likely be
disruptive of the unique nature of the juvenile process. Utilization of
the other due process rights in the juvenile courts will not require the
judge to abandon traditional practices; the hearing can still be conducted
with some flexibility and with patience and understanding. A jury
trial, … would probably require substantial alteration of the traditional
practices … the juvenile court judge would of necessity have to concern
himself much more with the technicalities of proper procedure, and
would have a vastly reduced capacity to guide and mold the hearings.
It is our view that the procedural rights which we have held applicable
in the juvenile process will give the juveniles sufficient protection, and
there is no need to add an element, the right to a trial by jury, which
might well destroy the traditional character of juvenile proceedings.153
In a dissenting opinion, Cohen, J. argued against all four elements
referred to in the majority opinion distinguishing the juvenile
system and the criminal court. He felt that Duncan should apply
in both courts and that at the adjudicatory stage trial by jury
should not be refused to juveniles.1 4
In re D.,155 a judgment of the New York Court of Appeals
supported In re Terry. Scileppi, J., in a bare majority judgment
of four judges to three, stated:
156 Ibid., at p. 355.
15 Courts today appear to be of two minds with respect to the rights of
juveniles. The United States Supreme Court decisions in Gault and Winship
make clear that the essentials of due process and fair treatment must be
applied to the adjudicatory stage of delinquency proceedings, but in Winship
the Court was careful to point out that its holding would not destroy the
beneficial aspects of the juvenile process. Thus due process and parens
patriae have come into direct conflict… The trend of the United States
Supreme Court decisions, however, appears to be away from parens patriae
in the adjudicatory stage, and the right to trial by jury is an essential part
of the adjudicatory process. I do not see valid reasons why Duncan should
not apply to the juvenile court system. Ibid., at p. 358.
Under California Statute, juvenile offenders are grouped under three dif-
ferent sections. Section 600 covers dependent children, the destitute, objects
of cruelty or neglect. Section 601 cases are juveniles witth delinquent tend-
encies, those that show non-criminal anti-social behavior, e.g., persistently
or habitually refusing to obey their parents, beyond the control of their
parents, habitually, truant. Section 602 deals with children who violate laws
defined as crimes for adults. Because of procedural problems and practical
problems of overcrowding the court calendar, these sections may soon be
repealed or consolidated. See Comment, Juvenile Law –
a Potential for
California Change, (1971), 2 Pacific L. J. 737.
155 261 N.E. 2d 627 (1970).
No. 3]
PARENS PATRIAE CONCEPT
involving
… trial by jury, in cases
juvenile delinquents, is neither
constitutionally required nor desirable. To require a jury trial in such
proceedings ‘would inevitably bring a good deal more formality to the
juvenile court without giving the youngster a demonstrably better fact-
finding process than trial before a judge’ (President’s Commission on
Law Enforcement and the Administration of Justice: Task Force Report
on Juvenile Delinquency and Youth Crime, pp. 38-40 (1967)); … Moreover,
it would make delinquency adjudications unwieldy and disruptive since
the Family Court is not structured to handle jury trials. This view is
consonant with the majority of most State courts which have passed
upon the issue since Gault was decided…
Therefore, we see no compelling reason why we should burden the
court with a procedural requirement which would make such adjudi-
cations significantly time consuming, cumbersome, and result in a loss
of secrecy which has always been deemed most desirable, since a jury
trial would not necessarily afford the youngster a better fact-finding
process. 156
A commentator has recently sharply criticized this judgment. 15
7
The reasons for judgment “express an overriding desire by the
Court to maintain an efficient and effective system of juvenile court
administration, but they do not express any principles of law.
Indeed, this Court has, in the denial of a right to trial by jury,
stemmed the evolving due process concepts of Gault and Winship
for the sake of what appears to be administrative convenience”.
It was further suggested that at the fact-finding or adjudicative
phase, the court could have allowed trial by jury without destroying
the raison d’6tre of the juvenile court system. The traditionally
important question “what can we do for the child?” should be
left to the dispositional phase. “The heart of the actual fact-finding
hearing should be the question: ‘Did the child commit the act?’
Allowing a trial by jury at the option of the child will certainly
not hinder the settling of this question… Indeed, the formality
of a jury trial and its proceedings may help settle the question,
perhaps more justly”. 158
The President’s Commission has observed:
There is increasing evidence that the informal procedures, contrary to
the original expectation, may themselves constitute a further obstacle
to effective treatment of the delinquent to the extent that they engender
156 Ibid., at p. 630.
“57 Comment, Juvenile Offenders – Right to Jury Trial not Constitutionally
Required, (1971), 35 Albany L. Rev. 849.
158 Ibid., at pp. 854-855.
McGILL LAW JOURNAL
(Vol. 18
in the child a sense of injustice provoked by seemingly all-powerful
and challengeless exercice of authority by judges and probation officers.150
It has been argued that the purpose of an adjudicatory hearing
is to make an accurate determination of the facts and not to begin
rehabilitation of the minor based on the preconceived notion that
he has committed the alleged act. To accurately determine the
facts, well established rules and procedures should be followed.
“Trial by jury is not a matter of form –
like a judge’s robe or
gavel – but of substance, the product of long historical experience
and expressing a profound judgment by our legal system about the
means of adjudicating criminal behavior”.1Y
A jury trial at the adjudicatory stage of delinquency proceedings
would not affect the flexibility of the dispositional phase and would
not interfere with the judge’s relationship to the minor in making
a parens patriae type of disposition.
In In re Winship, Justice Harlan stated:
There is always in litigation a margin of error, representing error in
fact finding, which both parties must take into account.11
It has been argued that trial by jury provides for this margin of
error and increases the probability that one juror may not be
convinced “beyond a reasonable doubt”. It has therefore been asked
that if this likelihood of doubt is provided by the U.S. Constitution
for adults in the criminal courts, why should it be denied to youthful
offenders? 162
159 “In theory the court’s operations could justifiably be informal, its
findings and decisions made without observing ordinary procedural safe-
guards, because it would act only in the best interest of the child. In fact
it frequently does nothing more or less than deprive a child of liberty
without due process of law…” The President’s Commission on Law Enforce-
ment and Administration of Justice, The Challenge of Crime in a Free Society
81 (1967) cited in Carpenter, op. cit., n. 140, at p. 270.
160 Dorsen & Rezneck, In re Gault and the Future of Juvenile Law, (1967),
1 Family Law Quaterly 1, at p. 23.
161 397 U.S. at p. 358
(1969) quoting Mr. Justice Brennan in Speiser v.
Randall, 357 U.S. 513 (1958), at p. 525.
162 Cohen, J. dissenting in In re Terry, 265 A. 2d 350 (1970), at p. 357:
Informality and flexibility are not ends in themselves: the purpose of
the adjudicatory stage is to determine whether the defendant is a delin-
quent, and as some loss of informality and flexibility will not have a
great effect on whatever rehabilitation the juvenile system can accom-
plish, I do not see an alteration of the “traditional character of juvenile
proceedings” as so weighty a factor as to render the right to a jury
No. 3]
PARENS PATRIAE CONCEPT
c. Right to Treatment
The parens patriae philosophy of the juvenile court is well
summarized by the Michigan Statute which states that the law
for juveniles is to be liberally construed to advance “the child’s
welfare and the best interest of the States”. 163 Thus, implicit in
this thesis lies the responsibility of the State, through its court, to
see to it that the children are receiving proper treatment towards
rehabilitation.
The right to treatment was first dramatized in the United States
in 1960. Conceived as a right for the protection of mental patients,
the right to treatment was advanced by Dr. Morton Birnbaum,
who urged that judicial safeguards against iiproper institution-
alization should extend to the post-commitment stage. He argued
that the process is not limited to determination of mental illness
and compliance with admittance procedures, but extends to a
determination of whether the individual “actually does receive
adequate medical treatment so that he may regain his health, and
therefore his liberty, as soon as possible”.””
In 1967, the Pennsylvania General Assembly introduced “The
Right to Treatment Law of 1968”. It called for a Mental Treatment
Standards Committee charged with preparing minimum standards
of treatment applicable in the State’s mental institutions. A Patient
Treatment Review Board was to be set up “to receive, hear and
investigate petitions filed on behalf of patients who allege they are
not receiving maximum standards of treatment”. 165
trial less fundamental in the juvenile system than in the ordinary criminal
process.
See also Comment, Criminal Offenders in the Juvenile Court: more Brick-
bats and Another Proposal, (1966), 114 U. of Pa. L. Rev. 1171; Recent Deci-
sions – Right to Trial by Jury, (1971), 9 Duquesne L. Rev. 681; Boches,
Juvenile Justice in California: A Re-evaluation, (1967), 19 Hastings L.J. 47.
If jury trials are reasonable in juvenile courts, should not their composi-
tion be restricted to the same age group as the minor on trial following
the principle of “a jury of his peers”? In Fairbanks, Alaska, a 12-man jury
was selected for the trial of a juvenile, where its members were from 16
to 18 years old. After the trial, the Attorney-General directed that henceforth
the age of jurors shall be not less than 19. “We’ve decided that this case
shall remain unique, and do not intend to stipulate to trial by juveniles in
this manner again. The Toronto Star, November 26, 1971, p. 64.
103 Mich. Stat. Ann. 27 –
164Birnbaum, The Right to Treatment, (1960), 46 A.BAJ. 499.
165 According to Kittrie, Can the Right to Treatment Remedy the Ills of the
Juvenile Process?, (1968), 57 Georgetown L. 3. 848 ten states and the District
of Columbia have recognized a statutory right to treatment. Other jurisdic-
3178 (598.1) (1962).
McGILL LAW JOURNAL
[Vol. 18
There are a number of cases in which the facilities for reha-
bilitation of juveniles in detention institutions were examined.
In 1954 “1 the U.S. District Court, D.C. Circuit, was faced with
the challenge of a juvenile delinquent of his committal to an
institution for the rehabilitation of “youthful offenders” who were
regularly convicted of crime but thought to be amenable to reha-
bilitation. The Court examined these facilities and compared them,
not unfavourably, with those assigned to juveniles. It did not
believe, however, that a juvenile should be placed there. Laws,
Chief Judge, delivered the opinion of the Court:
It is true that in both juvenile court and criminal proceedings a person
may be deprived of his liberty. It
is likewise true in the modern
administration of penal institutions increasing emphasis has wisely been
placed upon the rehabilitation and training of prisoners as essential
elements in a program for crime prevention and correction. Therefore
some of the features of penal institutions resemble those of educational,
industrial and training schools for
juvenile delinquents. The basic
function and purpose of penal institutions, however, is punishment
as a deterrent to crime. However broad the different methods of
discipline, care and treatment that are appropriate for individual prisoners
according to age, character, mental condition and the like, there is a
tions have given tacit recognition of this right.
The right to treatment has been noted by the courts. In Miller v. Over-
holser, 206 F. 2d 415 (1953), at pp. 419420, the U.S. Court of Appeals, D.C.
Circuit, stated:
We think it has been settled since the decision of the Supreme Court
in In re Bonner, 151 U.S. 242 (1894), that the writ (of habeas corpus) is
available to test the validity not only of the fact of confinement but also
of the place of confinement… If the appellant’s allegations and evidence
in respect to the conditions of his confinement be true… he is illegally
confined where he is confined.
In Commonwealth v. Page, 159 N.E. 2d 82 (1959), the Massachusetts Supreme
Court examined the facilities for treatment of sexual offenders. The defendant
pleaded that while such a center was required by statute, it did not in fact
exist. The court ruled that the remedial aspect of such confinements must
have a foundation in fact. It was stated at p. 85:
… confinement in a prison which is undifferentiated from the incarcera-
tion of convicted criminals is not remedial so as to escape the constitu-
tional requirements of due process.
In Sas v. Maryland, 334 F. 2d 506 (1964), the Court of Appeals, 4th Circuit,
extended the judicial inquiry from the existence of a separate facility to the
availability of actual treatment. The appeal was remanded to the District
Court to determine whether the state institution for defective delinquents
“does in fact furnish treatment for treatable defective delinquents as dis-
tinguished from other lawbreakers which would support the Act under the
equal protection clause of the Fourteenth Amendment”. (At p. 509).
166 White v. Reid, 125 F. Supp. 647 (1954).
No. 3]
PARENS PATRIAE CONCEPT
fundamental legal and practical difference in purpose and technique.
Unless the institution is one whose primary concern is the individual’s
moral and physical well-being, unless its facilities are intended for and
adapted to guidance, care, education and training rather than punish-
ment, unless its supervision is that of a guardian, not that of a prison
guard or jailor, it seems clear a commitment to such institution is by
reason of conviction of crime and cannot withstand an assault for
violation of fundamental Constitutional safeguards…
In this jurisdiction, this Court and not the Juvenile Court is the
Court of competent jurisdiction designated for trial of a felony. A
Juvenile Court hearing in respect of a juvenile is not a criminal trial,
and a commitment is not a conviction and punishment for a felony.167
In Creek v. Stone 16 8 the juvenile brought a habeas corpus
petition alleging that while detained in the receiving home for
children there were no facilities for psychiatric care. Though the
issue became moot as he was later transferred to the National
Training School, the Court noted that:
…
in general, habeas corpus is available not only to an applicant who
claims he is entitled to be freed of all restraints, but also to an applicant
who protests his confinement
in a certain place, and under certain
conditions, for confinement.169
The Court continued:
But the purpose stated in 16 D.C. Code Section 2316(3) –
to give the
juvenile the care ‘as nearly as possible’ equivalent to that which should
have been given by his parents –
establishes not only an important
policy objective, but, in an appropriate case, a legal right to a custody
that is not inconsistent with the parens patriae premise of the law …
But where, as here, a claim is presented to that court by a juvenile
alleging a need for treatment which is not being furnished, the fact that
the custody is ‘interim’ as opposed to ‘final’ does not end the matter.
The Juvenile Court, when presented with a substantive complaint, should
make an appropriate inquiry to insure that the statutory criteria, as
applied to that particular juvenile, are being met.170
In re Elmore 171 was a decision in the same court a few days
later. It was stated that:
In Creek we carefully consider the Juvenile Court Act, noting a clear
legislative purpose to establish a professionally equipped, specialized
court to deal with the myriad of situations coming before it. We pointed
out that the Juvenile Court is armed with broad statutory powers to
the end that the community’s resources may be marshaled to provide
individualized care and treatment… Recognizing that full and imaginative
use of these powers enables the Juvenile Court to fashion a dispositional
167 Ibid., at p. 650.
168379 F. 2d 106 (1967).
169 Ibid., at p. 109.
170 Ibid., at p. 111.
171382 F. 2d 125 (1967).
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decree tailored to meet the peculiar needs of a particular child, we
deemed that court obligated to conduct an ‘appropriate inquiry’ when
presented with a ‘substantial complaint’ concerning commitment.
In this case, we have on the one hand an explicit finding by the
Juvenile Court that petitioner needs ‘psychological and/or psychiatric
care to meet his particular needs’ while, on the other, a claim that
petitioner is receiving no treatment whatever. We think this presents,
within the meaning of Creek, a
for
appropriate inquiry’ 72
It
is unfortunate that there has been growing dissatisfaction
with the existing treatment facilities in the American juvenile system.
However, a commentator 7 3 concedes that “the ability of the be-
havioral sciences, now or in the future, to attain the goal of re-
habilitation is a moot question if society is unwilling or unable to
commit the economic resources that the project requires”.
‘substantial complaint’ calling
In 1958, a Juvenile Court Judge made the following observations
with respect to staff:
For the unhappy judge who can expect virtually no help in determining
the basic pattern of the child’s behavior because of his court’s lack of a
trained staff, for the unfortunate jurist who knows
that his state
training school represents naked detention and nothing better, even
perhaps something worse, there can be but one governing principle:
to resolve every uncertainty in favor of the child and his home;
to
commit solely on the basis of unmistakable need for community protection.
Lacking on the one hand the facts essential to accurate diagnosis
and denied on the other a good training program for delinquents, the
judge dares not assume that any beneficial results can accrue from
his action save the protection of the community which enforced segre-
gation guarantees. This does not minimize the importance which should
be attached to this primary court responsibility, but makes certain
that the inherent reasons underlying the decision to commit are under-
stood by all, including the judge.
How long such a judge and the community he serves must deny
themselves the hope of truly helping children would depend on how
long it takes to demonstrate to the citizens concerned that there is no
magic, per se, in the Juvenile Court Act. Indeed, in some respects, it is
far more dangerous
than no act at all, inducing as it easily may a
sense of complacency concerning a program which, in fact, has never
emerged from the statute books.’7 4
Ruben,17 writing in 1970, reports a case in California where a
judge closed a juvenile institution because he was disgusted with
172 Ibid., at pp.126-127.
173 Kittrie, op. cit., n. 165.
174 Dill (Juvenile Court Judge), When Should a Child be Committed?, (1958),
4 National Probation & Parole A.J., pp. 5-6.
175 Sol Ruben in Crime & Delinquency (3rd ed., 1970), at p. 40. Also quoted
by Cooley, Court Control over Treatment of Juvenile Offenders, (1971), 9
Duquesne L. Rev., at p. 629.
No. 3]
PARENS PATRIAE CONCEPT
the absence of sound treatment. The children had been neglected
and abused in the institution. Most were simply sent home by the
judge, others placed in foster homes. The police predicted a crime
wave. It never came. Six months later, out of the 140 children
taken out of the institution, only 10 were in trouble again.
It has been pointed out that the right to treatment could find
a basis in the U.S. Constitution’s Eighth Amendment prohibition
of cruel and unusual punishment . 7 6 As was noted by Chief Judge
Bazelon in Rouse v. Cameron, “indefinite confinement without treat-
ment of one who has been found not criminally responsible may be
so inhumane as to be ‘cruel and unusual’ “17
It has been further suggested that such a right, if firmly
established, must be contained within certain criteria which should
be carefully formulated through legislative, judicial and executive
interaction. Sufficiency of treatment might be measured by a number
of criteria to be determined by existing community resources, by
examining the most advanced programs elsewhere, or by deciding
what the natural parent would have selected for his child if he were
financially able to do so. The treatment criteria should not be
the function of the judiciary alone, but must be worked out from
the bottom up and would include the considered judgments and
research of psychologists, psychiatrists and experts in the social
sciences.
Nor should the courts remain the exclusive enforcement ma-
chinery of the right to treatment. While juvenile court judges might
assume some responsibility for the effectiveness of the treatment
by making judicial visits and inspections of treatment facilities,
preferably unannounced and at irregular intervals, at which times
they might conduct informal conversations with the juveniles without
the presence of supervisors, 18 boards of visitors might be established
to supervise treatment programs, ombudsmen might be appointed
to hear complaints. 79
176 U.S. Constitutional Amendment VIII.
177 373 F. 2d 451 (1966). Judge Ketcham, President of the American Juvenile
Court Judges Association, has described the right to treatment as the price
tag without which the powers of parens patriae may not be exercised.
Ketcham, op. cit., n. 33, at p. 100.
178 He also reports that the District of Columbia Courts inquire into absence
of facilities for needed psychiatric care in the local juvenile detention quarters.
them promises no
New York releases
rehabilitation.
juveniles where institutionalizing
17 9 Kittrie, op. cit., n. 123.
McGILL LAW JOURNAL
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d. Right to Bail
The Constitution of the United States does not expressly grant
the right to bail. The Eighth Amendment provides that “excessive
bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted”.8 0 Federal law has long main-
tained that in all but capital cases (where bail is discretionary)
a person accused of crime has an absolute right to be admitted
to bail.-s’ Prior to the enactment of juvenile court statutes, this
same right existed for minors accused of crime.
Juvenile court statutes have treated the subject of bail with
everything from affirmative approval through silence and neglect
of any provisions for bail to express disapproval. 18 2 But where
express provisions exist, it is usually provided that the parents of
the minor be immediately informed after apprehension and the
minor released to their custody if at all feasible.’ 3
Section 10 of the Louisiana Act 169 (1944) provides:
Whenever any officer takes a child into custody, he shall, unless it is
impractical or has been otherwise ordered by the court, accept the
written promise of the parent, tutor or person having custody of the
child to bring the child to the court at the time affixed. Thereupon such
child may be released to a parent, tutor or other person having care of
the child. The court may require a bond from such person for the
appearance of the child; and upon failure of such person to produce
said child when directed to do so, the court may, in addition to declaring
the bond forfeited, punish said person as in case of contempt.’ 4
The provisions for release are not mandatory. The use of the
word “may” gives the judge some discretion in deciding whether
to return the child to his home or keep him in care of the court
pending the hearing.
In State v. Franklin,8 5 a juvenile, 16 years old was charged in
the juvenile court for the parish of Orleans for stabbing a 15-year-old
180 U.S. Constitutional Amendment VIII.
181 Stack v. Boyle, 342 U.S. 1 (1951). The same right is guaranteed in all
but 7 states. See: Wald & Freed, Bail in the United States, (Z.N. 8, 1964).
1829 states expressly endorse the bail provisions found in criminal courts,
3 states imply there is right to bail, 3 states expressly state that bail
provisions do not apply, 8 states imply the same, the remaining 27 states
and the District of Columbia have no provisions dealing with the question.
See: Legislation: The Right to Bail and the Pre-Trial Detention of Juveniles
Accused of “crime”, (1965), 18 Vand. L. Rev. 2096.
183 In Massachusetts, bail is available in juvenile cases. Mass. Gen. Laws
Ann. Ch. 119 67 (1958).
8 4 See: Jackson, The Right to Bail & Suspensive Appeal in the Louisiana
‘
Juvenile Courts, (1966), 20 Tul. L. Rev. 363.
185173 So. 137 (1937).
No. 3]
PARENS PATRIAE CONCEPT
boy with a knife. He was arrested and placed in the municipal
colored boys home pending trial. The boy’s lawyer sought bail
pending proceedings and was refused. On appeal, writs were granted
by the Louisiana Supreme Court which declared that “the Act would
be unconstitutional if interpreted as denying juveniles the right
to bail pending trial”. The court reasoned that the juvenile courts
were established to show more consideration to the juvenile and
not to deprive him of any of his constitutional rights. It was stated
that a finding of delinquency will usually mean the necessity of a
change of custody of the child, but prior to such finding, he is
entitled to his constitutional right to bail.
Other states which have created juvenile courts have not
followed any uniform rule with respect to bail. Alabama 1 6 has
essentially the same provisions as Louisiana. The Delaware Juvenile
Court Act provides:
Any child proceeded against, as in said sections provided, shall have the
right, given to any person, to give bond or other security for its
appearance at trial. 8 7
Most commentators are of the opinion that bail should not be
a matter of right in a juvenile case.18 Irregardless of whether the
proceedings are civil or criminal, a child in trouble may be in need
of care immediately and that care may not be forthcoming by a
simple release to its parents. If the parents are the source of the
difficulty, discharge to them will not be wise in every case. The
decision not to grant bail, however, should be subject to review. 89
It has been suggested that if the judge must determine whether
the juvenile is to be detained or released then he should be given
the tools to help him in arriving at a just and fair decision in
serving the best interests of the child. One of these tools is a
screening center supplied with trained and adequate personnel who
will gather information about the juvenile, his parents, his back-
ground, his individual needs for treatment and supervision. Supplied
186 Title 13 Alabama Code 1940.
187 Delaware Rev. Code s. 4336 (1935).
1SSA telling argument against conditioning a child’s release upon bail is
the fact that the basic policy of the juvenile court “which is to provide
detention only for those in need of detention” would be exchanged “for a
policy which would provide detention only for those in need of money”.
Katz, A Reappraisal of Juvenile Delinquency Proceedings in New York,
(1969), 34 Albany L. Rev. 122.
189 Paulsen, op. cit., n. 79. In a letter to the Harvard Law Review January 4,
1966, Judge Howard G. Brown wrote that while a review of the detention
decision before a judge is available, it is seldom requested.
McGILL LAW JOURNAL
[Vol. 18
with this expert data, the judge can then make a calculated and
wise decision. The second tool is the availability of detention centers,
well supplied with equipment and trained personnel to make the
child comfortable and feel at home. Since he is usually still at
school, continuation of his studies while in detention must be
assured.9 0
e. Hearsay Evidence
Opinion is divided as to whether or not hearsay evidence should
be allowed in juvenile courts. In People v. Lewis,’9’ it was held that:
The customary rules of evidence shown by long experience as essential
to getting at the truth with reasonable certainty in civil trials must
be adhered to … Hearsay, opinion, gossip, bias, prejudice, trends of
hostile neighborhood feelings, the hopes and fears of social workers,
are all sources of error and have no more place in children’s courts
than in this court.192
In In re Sippy,193 the Municipal Court of Appeals for the District
of Columbia reversed a judgment of the juvenile court finding the
child to be habitually beyond the control of the parent and com-
mitting the child to a school for an indefinite period. The only
evidence was two reports, the first made by a lawyer reporting a
conversation he had with the child’s physician, and the second a
report of a social worker containing statements allegedly made to
the worker by the same doctor.
Clayton, Chief Judge, stated that while the juvenile court may
conduct the hearing in an informal manner, “in a case like this
where liberty is involved, we think a respondent is entitled to
insist that the facts be presented by witnesses who are under the
solemnity of an oath”.9 4
Hearsay evidence alone is not sufficient to charge a juvenile.
“Certain it is that without the incompetent hearsay evidence above-
190See Legislation: The Right to Bail and the Pre-Trial Detention of
Juveniles Accused of “crime”, (1965), 18 Vand. L. Rev. 2096; Comment, In re
Gault & the Persisting Questions of Procedural Due Process & Legal Ethics
in Juvenile Courts, (1968), 47 Neb. L. Rev. 558; Katz, op. cit., n. 188; Recent
Developments: Criminal Procedure –
Juvenile Delinquents: No Right in
Delinquency Proceedings to Trial by Jury or Bail on Appeal – Estes v. Hopp,
438 P. 2d 205, (1969), 4 Washington L. Rev. 481.
191 183 N.E. 353 (1932).
192 Ibid., at p. 355, per Crouch, J.
19397 A. 2d 455 (1953).
’94 Ibid., at p. 458 per Cayton, CJ.
No. 3]
PARENS PATRIAE CONCEPT
recited, there was not enough left to support the charge and
nothing to justify the order…” 195
In In re Mont,19 6 Rhodes, J. stated:
It is argued on behalf of appellant that he was adjudicated delinquent
and committed on hearsay testimony in violation of the fundamental
rules of evidence. Appellant freely admitted facts showing his violation
of law and his delinquency, and the court’s finding of delinquency is
therefore supported by competent evidence of record. It was not necessary
to rely upon hearsay testimony to support the basic finding of delin-
quency, and it does not appear that hearsay testimony or ex parte
reports were used by the court in making its determination and
the basic finding of delinquency was supported by
adjudication. As
testimony would not
competent evidence, the admission of hearsay
constitute reversible error.197
In Ballard v. State 198 the Texas Court of Civil Appeals reversed
a county court decision (sitting as a juvenile court) sending a
juvenile to the state’s school for boys for causing damage to a sewer
pipe belonging to the city. The judgment erred in admitting hearsay
evidence “of a material nature”.
The accused in such cases should be faced by the witnesses who give
evidence against him and should be permitted to hear such evidence
and have an opportunity to cross-examine the witnesses. The evidence
given in such cases should also be confined to the charges alleged in
the petition filed in the case. We are of the opinion, therefore, that
the trial court erred in considering statements of a material nature made
to him out of the presence and hearing of appellants. It was likewise
error for the trial court to hear and consider hearsay evidence of a
material nature and to hear and consider evidence about extraneous
matters and misconduct of the child with which it was not charged
in the petition presented in the case…
The Act gives the trial court many discretionary powers, but its
powers are not unlimited and they should be cautiously exercised. 99
Whitlatch, J. said in 1967: 200
It is the writer’s practice in juvenile proceedings to state that everything
in the reports given by policemen and social workers which is not
competent will be considered as would the opening statement of counsel,
that is, not as evidence but rather as being what the witness expects
the competent evidence to show, and that it is later supported by
competent, sworn testimony. Unquestionably, hearsay has no place in
195 Ibid., at p. 459.
190 103 A. 2d 460 (1954).
17 Ibid., at p. 463.
198192 S.W. 2d 329 (1946).
199Ibid., at p. 332.
200Whitlatch, The Juvenile Court –
Reserve L. Rev. 1239.
a Court of Law, (1967), 18 Western
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any juvenile court proceeding and there is no reason to believe that
traditional
juvenile court judges do not share the legal profession’s
attitude toward hearsay.201
In In re Mantell,20 2 the Supreme Court of Nebraska held that
hearsay evidence cannot alone decide the guilt of a juvenile. Mr.
Krell (the social worker) then proceeded to make a detailed
statement with regard to the defendant not under oath all of which
was clearly and admittedly hearsay. Others were allowed to make
statements not under oath and which likewise were hearsay.
intended
that trials should be held without
It was stated that:
information was
No witness was sworn and nothing except hearsay
adduced at the hearing… The effect of the adjudication in this case
was to deprive the defendant of his liberty … Can it be said that it
the
(the Legislature)
benefit of testimony of witnesses given under the sanction of oath or
affirmation?… We think not.203
Some courts have allowed hearsay evidence. In re Holmes204
a juvenile was charged with operating a vehicle without a permit
and taking part in a church robbery. On the latter charge, the
juvenile court judge permitted a detective to testify that Holmes
had taken part according to the signed confession of another. The
court did not find it necessary to see the confession or question
the confessor.
On appeal to the Supreme Court of Pennsylvania, Horace Stem,
C. I., stated:
Appellant complains that the court received certain hearsay testimony
in regard to the charge that he was implicated in the armed robbery
of the church.., from the very nature of the hearings in the Juvenile
Court it cannot be required that strict rules of evidence should be
applied as they properly would be in the trial of cases in the criminal
court. Although, of course, a finding of delinquency must be based on
sufficient competent evidence, the hearing in the Juvenile Court may,
in order to accomplish the purposes for which juvenile court legislation
is designed, avoid many of the legalistic features of the rules of evidence
customarily applicable to other judicial hearings.205
201 Ibid., at p. 1248.
202 62 N.W. 2d 308 (1954), per Yeager, J.
203Ibid., at p. 311. In this case the question raised was whether or not
the child’s casework report can be used in adjudication. The dangers to a
child are that he has no means of cross-examination. People may be more
willing to whisper damaging statements to a caseworker than to testify
in court.
204 109 A. 2d 523 (1954).
205 Ibid., at p. 526.
No. 3]
PARENS PATRIAE CONCEPT
Hearsay evidence, though not conclusive, “if it is admitted with-
out objection and is relevant and material to the issue, is to be given
its natural probative effect and may be received as direct evi-
dence”. 06
This judgment is not a strong case supporting hearsay evidence
in court since the Juvenile Court judge did not decide that the
juvenile had in fact participated in the robbery. “Moreover, there
is nothing in the record to indicate that the judge who presided
in the Juvenile Court acted in the final disposition of appellant’s
case on the basis of any conclusion that appellant had in fact
participated in the armed robbery of the church” 0 7
Where hearsay evidence has been admitted, and there is sufficient
other evidence to support the same conclusion, the presumption
seems to be that the court disregarded the hearsay evidence. The
unfortunate flaw here is that the court might have actually con-
sidered the hearsay evidence in reaching a conclusion. Where there
is a lack of findings of fact or conclusions of law, it becomes
especially difficult to ascertain whether the Juvenile Court judge
had in fact disregarded hearsay evidence.
In Campbell v. Siegler,20
1 the Supreme Court of New Jersey
ruled that while the Juvenile Court may have erred in admitting
certain hearsay evidence, the testimony was in no way prejudicial
to the prosecution so the appeal failed on that ground.
In In re Brown,00 the Texas Court of Civil Appeals ruled that
while hearsay evidence was introduced in the lower court, “there
is sufficient evidence to support the court’s judgment without the
aid of such inadmissible testimony. Unless the contrary is shown,
it will be presumed that the court disregarded the same in rendering
its judgment”.210
While there were no findings of fact or conclusions of law filed
by the court, from the remarks of the judge the appeal court ruled
that: … the court, in effect, said that he did not consider any
hearsay evidence in reaching his decision”.2 11
In State v. Christensen,212 the Supreme Court of Utah likewise
20Id.
207Id.
208 162 A. 154 (1932).
209201 S.W. 2d 844 (1947).
21o Ibid., at p. 847 per Lester, C.J.
211 Id.
212227 P. 2d 760 (1951).
McGILL LAW JOURNAL
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did not reverse the lower court on the grounds of hearsay evidence
when there was other evidence available.213
In In re Gonzales,21 4 the Court of Civil Appeals of Texas held
that “evidence of probative value” is admissible in juvenile court,
thus allowing a great deal of latitude in admitting uncorroborated
evidence.2 1 5
The position of the Superior Court of Pennsylvania with respect
to hearsay evidence in Juvenile Court proceedings has been further
clarified in the recent case of In re Farms.21 The question for the
court to decide was –
is it erroneous to preclude ‘an inquiry into
statements made by a principal witness to the police when such
statements may be contradictory of that witness’ testimony?
The court ruled that in adult court an error would have been
committed by excluding the prior statement and that therefore
it was erroneous to do so in Juvenile Court. In this particular instance
such admission was helpful to the juvenile as it showed the in-
consistency of the witness who testified against him.
The court first affirmed that Gault and Winship only decided
that certain but not all essentials of due process were required.
“The Court was clear, however, that due process did not require
abandonment of ‘the informality, flexibility (and) speed’ of the
juvenile procedure if the juvenile’s interest in a fair adjudication
was not overcome thereby”.217
Hoffman, J., stated:
In juvenile cases, where the judge sits alone as the trier of fact and
where it is his duty to become as knowledgeable and inquisitive as
reasonably possible, it is better for him to admit hearsay ‘for what
213 The letter from Superintendent Anderson was verified but the letter
from Dr. Ramsey contained no verification. While technically
the court
erred in admitting in evidence the letter from Dr. Ramsey because it did
not comply with the above statute with regard to verification. … the letter
reported nothing that was not contained in the letter from Superintendent
Anderson which was clearly admissible. Ibid., at p. 762, per Wolfe, J.
214328 S.W. 2d 475 (1959).
215 Appellant’s sixth point accuses the court of error in adjudging appellant
a delinquent juvenile on uncorroborated evidence or testimony of Juan
Guevara, whom appellant describes as an accomplice. This point must be
overruled, because it has been clearly set forth many times that the evidence
to establish the
necessary to so adjudicate need not be that sufficient
delinquency beyond a reasonable doubt, as in a criminal case, but must
be on some evidence of probative value; in other words, in accordance
with the Rules of Civil Procedure. Ibid., at p. 478, per Fraser, J.
216268 A. 2d 170 (1970).
217 Ibid., at p. 175.
No. 3]
PARENS PATRIAE CONCEPT
it’s worth’. He can make the determination whether responsible people
would rely upon it in serious affairs when he makes his findings. He,
by his experience in dealing with thousands of juveniles, being exposed
to their statements, both forthright and delusive, will not be swayed,
as a jury would, by hearsay which is not to be relied upon…
Of course, we would not allow an adjudication of delinquency based
on hearsay. Such a result would be in violation of a juvenile’s right
of confrontation. In re Gault… But, when a matter as important as
the prior statement of a witness is brought to the court’s attention,
it should be permitted to consider it, whether or not it technically is
an exception to the hearsay rule.218
In some state jurisdictions, attempts have been made to clarify
the status of hearsay evidence by dividing the hearing into two
parts –
the adjudication where a finding is made as to guilt or
innocence and the dispositional where a judge is to decide what
to do with the child if found guilty. In New York, California and
Illinois such a division is made. 19 Under the California statute,
however, there is no explicit provision removing hearsay evidence
from the adjudicatory hearing.
f. Should there be Two Separate Hearings – Adjudication
and Disposition?
It has been pointed out that whether or not there should be a
separation, the purpose of the juvenile court, that of rehabilitation,
should be constantly in evidence. Thus even though the youth has
admitted guilt or the evidence unmistakeably points to his in-
volvement, the court may feel that a finding of delinquency will
impede his return to proper behavior patterns in society. In such
circumstances, the juvenile court judge may dismiss the case out-
right or postpone final judgment to provide for a period of informal
supervision.
2 l8 Id. See Recent Decisions: Criminal Law –
9 Duquesne L. Rev. 573-696
Juvenile Court Proceedings,
Evidence, (1971)
(1971). This writer does not
agree with the conclusion reached in the above note that In re Farms makes
a distinction between what is and what is not admissible hearsay evidence
in juvenile courts and that admissibility depends on whether such evidence
is or is not helpful to the juvenile’s case. The court merely states that
hearsay evidence is admissible “for what it’s worth”, relying on the good
judgment of the juvenile court judge.
219New York Family Court Act, 344-345 (1963); California Welfare and
Institutions Code, 701-02 (1966); Illinois Juvenile Court Act of 1965. Under
the California Statute, however, there is no explicit provision removing
hearsay evidence from the adjudicatory hearing.
McGILL LAW JOURNAL
[Vol. 18
In a study 220 prepared for the Columbia Law Review after
interviews with juvenile court judges, probation officers, attorneys,
and after observing juvenile hearings in some 18 cities, it was found
that “exposure to the court, and to a judge who can choose between
dealing sternly or being gentle with the alleged offender, has been
accepted as a useful rehabilitative tool”.2 2 1 According to the report,
it was common practice in some jurisdictions for the intake depart-
ment to send minors to the court, recommending that they be re-
primanded and dismissed, merely for the purpose of assuring
beneficial exposure to the tribunal.
The notion of the court appearance as a rehabilitative device is reinforced
by two instances observed. In one case, a youth was brought before the
court though he was only a runaway, a matter which in that juris-
diction was usually handled by the intake staff; his parents had
suggested, and the probation officer had agreed, that a court appearance
might reform the child. In another locale, the intake staff was instructed
to bring all shoplifting cases before the court, no matter how trivial.
Experience
in that category became
negligible after a court appearance 222
It has been argued that the separation into two hearings has
there indicated that recidivism
certain advantages:
1. The lawyer can take a strong adversary position at the adjudicatory
stage.
2. At the dispositional hearing, he can leave the adversary tactics and
act for the best interest of the child.
3. The separate hearings will give the lawyer a better opportunity to
examine the social reports and prepare an alternate disposition, if
any.2 23
Bearing in mind the primary purpose of the juvenile court to
correct and rehabilitate the child, it is suggested that the lawyer
should always act in the best interest of the child, whether in
220 Comment Rights & Rehabilitation in the Juvenile Courts, (1967), 67
Colum. L. Rev. 281.
221 Ibid., at p. 283.
222 Ibid., at p. 284.
223 See Comment, The Attorney and the Dispositional Process, (1968), 12
St. Louis U. L. J. 644; McMillan & McMurtry, op. cit., n. 96; Parker, op. cit.,
n. 50. The President’s Commission on Law Enforcement and Administration
of Justice also recommends a separate dispositional hearing. “Juvenile court
hearings should be divided into an adjudicatory hearing and a dispositional
one, and the evidence admissible at the adjudicatory hearing should be so
limited that findings are not dependent upon or unduly influenced by hearsay,
gossip, rumor and other unreliable
the
President’s Commission on Law Enforcement and Administration of Justice:
The Challenge of Crime in a Free Society, at p. 87 (1967).
types of evidence”. Report of
No. 3]
PARENS PATRIAE CONCEPT
the adjudicatory or dispositional stage. The juvenile court should
not be an adversary court. If the child has committed an offence
or shows unlawful or harmful tendencies, the lawyer should assist
the child and the court to help correct them. By using technicalities
of the rules of practice to get the child “off the hook” may not,
in the long run, be helpful to the child. It will simply increase his
disdain for the law and may encourage him to further wrongdoing.
Besides any advantages a divided hearing may have for the
lawyer, it has been argued that there are advantages for the judge
as well.
the dispositional phase without violating
It is in the exercise of this dispositive function that the expertise of
the juvenile judge is most useful. His main concern during the sentencing
process should be rehabilitation of the juvenile rather than punishment
and protection of the public. During this stage it becomes essential that
the judge familiarize himself with the juvenile’s entire record including
social and psychological reports which would be inadmissible in the
fact-finding hearing… In order to assure the proper use of the youth’s
social report during
the
juvenile’s right to confrontation guaranteed to him during the adjudi-
cative stage, a divided hearing that totally separates the two functions
should be provided.224
Judge McFadden of the California Supreme Court and formerly
presiding judge, Los Angeles Juvenile Court, suggests that the dis-
position phase should be separate to allow the time required for
lawyer, judge and parents to discuss in detail the social and other
reports of the juvenile so that a considered rehabilitation plan
can be worked out. Judge McFadden also believes that the role
of the probation officer is very important at the dispositional hearing.
His report should be clear, concise and contain specific recom-
mendations. He must be prepared to defend them in a convincing
and thorough manner 2 5
The importance of the dispositional phase is also stressed by
Judge Lindsay Arthur, Juvenile Division Judge for the District of
Minnesota:
The whole, wonderful challenge of the Juvenile Court is to discover
a child’s needs, and to provide for them. And for this each Judge needs
all of his own best energy and analytical thinking and imagination and
concentration –
and compassion. And he needs to have and to use the
best social diagnosis and casework and group work that professional
social workers can give. And he needs the help of lawyers to test the
224 Comment, Juveniles and their Right to a Jury Trial, (1970), 15 Vill.
L. Rev. 972, at p. 991.
& Delinquency, 131.
25 MacFaden, Changing Concepts of Juvenile Justice, (April, 1971), 17 Crime
McGILL LAW JOURNAL
[Vol. 18
diagnoses and the proposals for treatment, and he needs them to bring
out the family’s ideas of what happened, and why, and what needs to
be done.226
Because of these special requirements, Judge Arthur believes
there is a need for Juvenile Court Judges to be specially trained.227
Judge Arthur suggests that to fulfill this need:
The National Council should take as its first objective the development
of the dispositional process. It should train Judges and, possibly, social
workers and others affiliated with the Judges. It should investigate
resources and facilities and propound methods to assist Judges in
obtaining the best of them. It should provide current lists of facilities
throughout the country which Judges might use.228
g. Should there be Different Kinds of Juvenile Courts?
Some commentators have suggested that child offenders should
not be grouped together and tried in the same court with similar
rules, procedures and dispositions. It
is not true to say that there
is no such thing as a bad boy. Hopefully the court, by treating
him as one, will not find it necessary to treat him as a bad
adult later.229
226Arthur, Disposition –
The Forgotten Focus, (Fall, 1970), 23 Juvenile
Court Judges Journal, at p. 71.
229 Parker, Instant Maturation for the Post-Gault “Hood” (1970), 4 Family
Law Quarterly 113, at p. 129. See also: Handier, The Juvenile Court and
the Adversary System: Problems of Function and Form, (1965), Wisconsin
227The great crying need is for training Juvenile Court Judges in the
dispositional process. Gaultism we learn at law school and in the legal
literature, and it doesn’t really matter all that much since most of its
application is as easy as a check-off list and little of its application impinges
on the prime function of the Court. But dispositions aren’t easy, nor can
they be done with a check-off list. They require an understanding of each
child’s needs and strengths and of available resources to meet those needs
and use those strengths. They require an understanding of how to com-
municate with a child during the hearing, and with his parents. They require
an appropriate setting for the hearing, which may be different, for different
cases. They require social investigations and usable reports and communi-
cation with social workers, and with schools, and the police, and the public …
THERE IS NEED, great need, for training in dispositions … Ibid., at p. 72.
In 1958 a far-reaching proposal for the dispositional stage in a
juvenile proceeding was made. A separate court would be set up consisting
of the chief judge and two special judges. One of the lay judges would be
an expert in clinical psychology and the other an expert in sociology,
psychology or social work. Nunberg, Problems in the Structure of the Juvenile
Court, (1958), 48, J. Crim. L.C. & P.S. It would seem, however, that the same
result might be achieved by requiring individualized reports and the presence
of experts in court to answer questions or explain their recommendations.
8Id.
2 2
No. 3]
PARENS PATRIAE CONCEPT
The role of the Juvenile Court is rehabilitation, but the procedures
and methods for treatment ought not to be same for all minors
charged as delinquents. The thesis is that true crime committed
by true criminals should be treated by the courts as just that,
regardless of defendant’s age. Conversely, if the action is not truly
criminal, such as truancy, loitering, stubbornness, beyond control of
parents, or if the offender is not truly responsible for his actions, for
such reasons as age, mental retardation, emotional disturbance,
then the criminal court process should not be actuated. Parents,
school authorities, psychiatrists, clergymen, counselling services –
all are more adapted to dealing with incipient delinquency than
a court burdened with a full complement of legal procedures.
The criticism of the present system is that the juvenile court
judge is called on to be an arbiter and social worker at the same
time. Strict segregation of mentally disturbed cases from the truly
criminally motivated juvenile cases should be considered. The
Juvenile Court judge should not be forced to be an amateur
psychiatrist. 2 30
Jurisdiction of the Juvenile Court should include children who
have committed acts which, if committed by an adult, would be
crimes. These are Gault cases and all due process procedures of a
criminal court should be observed. 31
L. Rev. 7; Ketcham, op. cit., n. 95; Noyes, Has Gault Changed the Juvenile
Court Concept?, (1970), 16 Crime and Delinquency 158; Paulsen, op. cit.,
n. 79; Sheridan, Juveniles Who Commit Non-criminal Acts: Why Treat in a
Correctional System?, (1967), 31 Fed. Probation 26.
230 (1970), 4 Family Law Quarterly 113, at p. 121.
23 1 In 1927, a commentator observed: It seems that despite the attempt
of the statutes to socialize the trial of an infant for an act of delinquency
which if committed by an adult would be a crime, and the attempt to make
such a trial civil by calling it civil, the trial, as a practical matter, still
retains the flavor of a criminal proceeding insofar as the child must be
formally brought into court, charged with a specific offence, and placed
under restraint pending the hearing, which restrait may be continued upon
conviction… It seems then, as a practical matter, that the juvenile court
is really quasi-criminal, and as such, the Bill of Rights is a factor to be
considered in the attempt to make the work of the juvenile court more
effective by giving it greater administrative power. Note, Rights of Juveniles
to Constitutional Guarantees in Delinquency Proceedings, (1927), 27 Columb.
L. Rev., at pp. 970-72. In 1968, another commentator wrote: When a child
is charged with a violation of law, when the goal of the fact-finding process
is to determine whether or not he committed the act, and when the result
may be confinement, how can it be denied that the process is criminal in
nature? Thomas R. Spencer, Jr., Beyond Gault and Whittington – The Best
of Both Worlds?, (1968), 22 U. of Miami L. Rev. 906, at p. 936. In the New
McGILL LAW JOURNAL
[Vol. 18
Its jurisdiction should also extend to dependent-neglect cases
where emotionally or physically deprived children are brought to
the attention of the Juvenile Court. It has been argued that since
the purpose of such a hearing is to determine whether the state
should assume guardianship of the child, with the possibility of
removal from the parents’ custody, adjudication involves rights of
parent and child and questions the very existence of the family as
an institution. As one author has stated:
The functioning of the family, the basic unit of our society, is under
direct scrutiny when a court seeks to determine if a child is being
neglected. For this reason, when the State uses its judicial machinery
to disrupt the family relationship by separating a child from his parents,
all the safeguards of procedural due process should be observed.232
It is argued that since the Fourteenth Amendment of the
American Constitution forbids a State to deprive any person of
life or liberty without due process of law, any action by the State
interfering with the family relationship is interference with Four-
teenth Amendment rights and requires the protection of due process.
York Court of Appeal, People v. Fitzgerald, 155 N.E. 584 (1927), a distinction
was made between cases of neglected, incorrigible or ungovernable children
and those where they are charged with specific offences which would be
criminal if committed by an adult. Crane, J. said, at pp. 586-87: … there are
many occasions for disposing of children under the so-called neglect and
delinquency provisions which do not involve any crime or acts of a criminal
nature… In such cases the formal proceeding of proof according to a trial
cannot always be followed. For instance, a neglected child is one under
16 years of age without proper guardianship, or who has been abandoned,
or deserted by both parents, or who is in such a condition of want or
suffering as to injure his health. Such a child can be sent by the judge to a
private home or public institution to be cared for. So, too, an incorrigible
and ungovernable child, one habitually disobedient and beyond the control
of his parents can be properly disciplined, or one who is habitually a
truant from school, or who, without the consent of his parents deserts
his home may be brought before the judge and submitted to proper control.
None of these charges against the child involve a crime or are of a criminal
nature, and the proceedings must be and always have been more or less
informal. While proper records must be kept… yet we cannot expect from
the very nature of such cases that the strict rules of evidence shall be
applied as they would and should be in cases dependent entirely upon a
charge involving an act of a criminal nature …
Where, therefore, a child is arrested and charged with being a delinquent
child because he has committed an offense which would be a crime in an
adult, that offense must be proved, and proved by competent evidence …
… The evidence taken in this case was not competent or sufficient to
convict an adult; therefore it was insufficient to convict this boy.
232 Faber, Comment, Dependent-Neglect Proceedings: A Case for Procedural
Due Process, (1971), 9 Duquesne L. Rev. 651, at p. 652.
No. 3]
PARENS PATRIAE CONCEPT
The right of parents to custody of their children is of long standing.
To invade these rights is a serious undertaking and deserves full
constitutional protections. Although
the determination of the
Juvenile Court is for the “welfare and best interest of the child”, the
result would be a loss of the child’s liberty “without procedural due
process” unless he is removed from his home and family only after
full inquiry before the court acting in a quasi-criminal capacity.2 33
For all remaining types of juvenile activity other than Gault
cases, such as “unruly” children, truants from school, incorrigibles,
runaways, waywards, children found in a disreputable place or in
the company of vagrant or immoral persons and in general children
whose behavior has not been so serious as to present a threat to
themselves or to society, but who manifest conduct indicative of
the need for assistance, it has been suggested that such children
should be referred to a Youth Services Bureau in the community
rather than to the Juvenile Court.2 4
This concept reverses
the referral approach. Police, school,
parents or private complainants should direct such activity or
behavior of juveniles not to the Juvenile Court but to this Youth
Services Bureau where qualified professionals begin the task of
evaluation and treatment. Neither child nor parent would be under
an obligation to accept the services offered. If no mutually accepted
plan can be arrived at within a reasonable period, e.g. from 30
to 60 days, the case can then be proceeded with in the Juvenile Court.
Judge Ralph Zehler, Jr., a Judge of the eighth Regional Juvenile
and Domestic Relations Court for Virginia, supports the division
of Juvenile Court cases. “It appears that many of the problems
courts are encountering in implementing Gault are due to the fact
that all too frequently courts and state laws fail to make a dis-
tinction between the juvenile delinquent and the so-called incor-
rigible child”.
He agrees that Gault cases should strictly follow due process
procedures.
I submit there is clearly good reason for different safeguards in those
cases where children are accused of criminal violations and in those
233 Ibid., at pp. 662-63.
234 Shering, Note: A Proposal for the More Effective Treatment of the
“unruly” Child in Ohio: The Youth Services Bureau, (1970), 39 U. Cin. L. Rev.
275.
23UZehler, Post Gault: One Judge’s View of the Juvenile Court, (Winter,
1971), 21 Juvenile Court Judges Journal, at p. 113.
McGILL LAW JOURNAL
[Vol. 18
cases where youngsters won’t go to school regularly, or are otherwise
beyond the control of their parents. Courts should jealously guard all
constitutional rights and strictly adhere to the rules of evidence and
procedure in the first category. Proof beyond a reasonable doubt must
be brought to light by the prosecuting attorney. Defence counsel must
be involved, and this has quite properly become an adversary proceding.2 30
Judge Zehler suggestes that two kinds of juvenile court be
established, a court for criminal violations and an equity court. 3
For the equity court, disposition should not include confinement
to state schools or similar institutions.
The juvenile who is brought before the proposed equity court should
not be liable to commitment or confinement in any of the institutions
available for delinquents …
In the equity court, disposition should be limited to local treatment
facilities such as mental health, foster care, detention homes, probation
etc. 238
VII. Conclusion
There can be no doubt that the Juvenile Court has a special
duty to perform. It is also true that it has not fulfilled the high
expectations of its founders and those who supported its creation.
But an examination of its performance through the case law and
court records show that most of its failures are due not to the
Juvenile Court and its procedures, but are the result of untrained
236 Id.
2 3 7 1n those cases where a child is charged with a criminal violation
(acts which would be criminal if committed by an adult) and quite possibly
in those cases where a specific act constitutes an offence applicable only
to children, such as curfew violation, etc., the court will sit and be known
as a junior criminal court. Through the adjudicatory hearing, all rules of
criminal evidence and procedure will be strictly followed. “Trials” for criminal
violations will be separate and apart from the other functions of the court.
Following an adjudication and finding of “true” or “not innocent”, based
on proof beyond a reasonable doubt, the case will be set for disposition,
whereupon the court will re-assume the traditional role of the juvenile court.
Rules of fair treatment will supplant the strict rules of due process. All
the protections and shields afforded juveniles under the present system will
be preserved… The other side of the court would be known as an equity
court with limited jurisdiction, where all matters other than “criminal”
would be disposed of. Rules of evidence, procedures and quantum of proof
would be governed by civil rules of equity, liberally administered so as to
allow for a full and fair presentation of all matters bearing on the case.
Ibid., at pp. 115-6.
Ibid., at p 116.
No. 3]
PARENS PATRIAE CONCEPT
and understaffed personnel as well as inadequacies in those insti-
tutions provided by the State for the rehabilitation process. 239
Due process procedures should be tightened up, constitutional
safeguards, especially in cases where crimes are committed, should
be granted to the youthful offender. But the main concern of
these Courts is rehabilitation and the mechanical methods of
procedure in a criminal court should not be allowed to stultify
the progressive development of the Juvenile Court, acting as parens
patriae, towards achieving what is best for the child based on a
thorough and understanding knowledge of his individual needs and
to phase out
239 Reform schools have come under heavy criticism. “Warehousing kids
in concrete and steel” is the way some youth officials have described such
schools. Beginning January 1, 1972, the Massachusetts Department of Youth
Services started
its three state-operated reform schools,
housing about three hundred juveniles. Almost all of the 1,200 juveniles
committed to the Department for short term treatment are to be sent to
twenty community-based residential
treatment centers, each housing up
to a dozen young people. It is expected that by June of this year all juvenile
offenders who would have been sent to reform school will be placed
in home-like facilities, perharps back in their own neighborhoods. Only
the few convicted of serious or violent crimes will continue to be kept under
tight security, but will receive specialized counselling and, if necessary,
psychiatric care.
The State of California has also turned away from large state institutions
for rehabilitation purposes. The number of juveniles in state reform schools
have been reduced from 8,000 five years ago to 4,500 in January 1972. Another
2,000 are in county-operated schools, ranches and camps. Youth officials
have been successful in convincing the authorities that “a young offender’s
best chance for rehabilitation is often through expert counselling in a home-
like environment back in the kind of neighborhood that he came from”.
Dr. Jerome Miller, Massachusetts Commissioner of Yoluth Services says:
“There is simply no longer any need for institutions that incarcerate yougsters
behind locked doors. It is clear that the more a juvenile offender is treated
in institutions, the sicker he gets. They just don’t help”.
See: Kelly, A State Decides to Stop ‘Warehousing Kids’, The National
Observer, January 1, 1972.
The reform school system has been further criticized by Lester Velie,
The Child Trappers, Reader’s Digest (Feb., 1972), at p. 96. Quoting the
National Council on Crime and Delinquency, “The quickest route to a
criminal career is via the juvenile court”. According to the NCCD, the
odds that a juvenile graduate from a training school or reformatory will
go straight is less than 50-50. According to an official at the reform school
at Sheridan, Illinois, who used to inspect state prisons: “Over the years,
I saw hundreds of inmates at Pontiac (an adult prison) whom I had first
met as Sheridan boys”.
McGILL LAW JOURNAL
[Vol. 18
deficiencies. As Chief Justice Earl Warren stated in his address to
the National Council of Juvenile Court Judges:
After all, what we are striving for is not merely ‘equal’ justice for
juveniles. They deserve much more than being afforded only the privileges
to their elders. A niggardly and
and protections
indiscriminate granting of concepts of justice applied to adults will
stunt the growth of the Juvenile Court and handicap the progress of
future generations 2 40
that are applied
240 In a similar vein, the Hon. Lindsay G. Arthur, District Judge, State
of Minnesota, Juvenile Division, and Vice-President of the National Council
of Juvenile Judges, wrote: Should children be as equal as people? Certainly
not. They should not have equal liberty: they should have less. Neither should
they have equal protection –
they should have more. How much less and
how much more will depend on the maturity of the particular child at
the particular time. Arthur, Should Children Be As Equal As People?, (1968-
69), 45 N. Dakota L. Rev. 204.
No. 3]
THURSDAY, FEBRUARY 24, 1972 at 7:30 p.m.
THE McGILL 3rd YEAR FINAL MOOT COURT
COMPETITION
CASE CONCERNING CERTAIN ASPECTS OF PRIVATE
INTERNATIONAL LAW AND THE CIVIL LAW OF SALE
JUDGES OF THE MOOT COURT:
The Honourable Mr. Justice GEORGE H. MONTGOMERY,
Montreal, Court of Appeal
BERNARD DESCHtNES, c.r., Member of the Quebec Bar
DAVID CAYNE, Assistant Professor, Faculty of Law,
McGill University, Member of the Quebec Bar
FINALISTS
ANDRf GODBOUT
JEAN L’HEUREUX
vs.
STUART CORBETT
THOMAs DAVIS
THE DECISION WAS AWARDED TO MESSRS. GODBOUT
AND L’HEUREUX FOR BEST ORAL PRESENTATION
AND FACTUM
SPECIAL THANKS TO MR. GEORGE DESSAULES AND
MISS ELIZABETH TRUEMAN FOR THE PREPARATION
OF THE PROBLEM AND MR. MAX HABERKORN FOR HIS
HELP THROUGHOUT THE TERM
SIDNEY H. ABED,
Chairman,
Moot Court Board.
McGILL LAW JOURNAL
[Vol. 18
THE WHEELS OF JUSTICE
Ordonnance de la Commission
des relations de travail –
Bref de prohibition
sans ordre de surseoir –
Ordre subs6quent de surseoir –
Bref d’assignation non signifi6 –
Mis en demeure de signifi6 –
Ddfaut –
Jugement ordonnant 1’6mission du bref
et ordre de surseoir –
Demande d’annulation du jugement –
Nullit6.
(The above ‘found poem’ copies verbatim the headnote to L’Association
internationale des commis du ddtail local 486 R.C.LA. v. The J. Pascal
Hardware Co. Ltd., (1970) C.A. 163. Only the title has been added.)
F. R. Scott *
Former Dean of Law, currently of the Faculty of Law, McGill, and
a noted Canadian poet.
