IN RE WINSHIP

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Argument of Rena K. Uviller

Chief Justice Warren E. Burger: Number 778 in the matter of Samuel Winship.

Mrs. Uviller.

Ms Rena K. Uviller: Mr. Chief Justice and may it please the Court.

This case presents the first clear opportunity for the Court to determine one of the implications of a landmark case In re Gault.

It affords on a good record, an opportunity which this Court sought, but was unable to seize most recently in the case of Debacker versus Brainard, an opportunity to determine whether a juvenile, maybe found guilty of a law violation and confined for a number of years unless been proved beyond a reasonable doubt that is on proof less than that customarily considered, the highest measure of proof in criminal proceedings.

In this case, the 12-year old appellate was found guilty of an act of larceny in violation of the New York Penal Law and while he could have been confined for a maximum of five years, had he been an adult, he faced a maximum confinement of six years because he was tried in a juvenile proceeding in the New York Family Court.

The determination that he was guilty of this act of larceny was based expressly upon the provision of the New York statute which provides for such finding by mere preponderance of the evidence.

The issue arose briefly in the following context.

The juvenile was tried in a fact-finding hearing in the Family Court and at that hearing, the complainant, a saleslady testified that one night she was at work and while the store was open for business, she and her coworkers did not believe any other people were in the premises, that they were no costumers present.

However, she became alerted at some point that a lavatory door in the back of the premises was locked and a moment or two later, the door opened and a young boy scooted out of the store and out into the street.

The lady testified that she really had at the most 10 seconds to observe him in profile as he darted by and she saw him from a distance of about 20 feet.

She then proceeded into --

Chief Justice Warren E. Burger: But if you see someone that you have known before, isn't one second sometimes enough?

Ms Rena K. Uviller: Yes, Your Honor but in this case really it emerged that she knew this boy previously, not at that time but she was confronted by him in a one-to-one confrontation the next night in the police station.

There is nothing in this record to indicate --

Chief Justice Warren E. Burger: What difference does it make which time she drew those conclusions?

Ms Rena K. Uviller: Well, it's unclear from this record and I would suggest that the family court judge, in finding a boy guilty, conceded that there was a reasonable doubt in this case about I don't -- it's unclear as to whether he was -- what the doubt was about that the lady had an opportunity to see him or when she made the determination that this was someone that she had known previously.

Chief Justice Warren E. Burger: What did she say about having known him previously?

Ms Rena K. Uviller: She said -- after she saw the boy scoot out she called the police office and she was then called to the police station the next night where she saw the boy and she testified in court that she knew this boy very well.

And she said that she had seen him on many previous occasions when he had come to her store and that she had thrown him out as a matter of fact.

The boy of course and his mother and his uncle all testified that he was not at all -- that he was home and could not possibly have been out of his house that entire evening and testified to an alibi.

He of course also denied that he ever knew this lady before, but I would suggest that it would be inappropriate here for us to again consider what entered into the fact finder's mind when he was making this determination.

He did assess the credibility of various witnesses and had before him the fact that the lady did see him in an inherently suggestive situation the next night and determine that he did have a reasonable doubt about this boy's guilt.

This was quite developed in a record and the judge most candidly noted that he was applying a different standard of proof then would have applied in adult situation and that therefore the finding was not ascertain.

And I would submit that at this point, what we are here to consider is the appropriateness of the measure of proof that the fact finder applied as opposed to what went into his determination that the child was guilty by the standard the he applied.

Justice Potter Stewart: Certainly, in other words, you suggest it's not up to us here to say, well, we reviewed the evidence and we think he could have found the beyond a reasonable doubt that this young fellow stole the purse.

You say it's none of our --

Ms Rena K. Uviller: That's right, Mr. Justice Stewart.

I would --

Justice John M. Harlan: You recall of any case in this Court similar with what the court has said at least without standard in federal case constitutes then?

Ms Rena K. Uviller: Mr. Justice Harlan there is no express holding to that effect, but I would suggest that the reason of that is so is that this so widespread standard, it has such fundamental antecedents that holding to that effect has never been necessary.

Justice Potter Stewart: Is that the standard in each of the 50 states here?

Ms Rena K. Uviller: Yes it is, Your Honor.

I would like to say at the outset that to seek a denomination of the proceeding here involved, either civil or criminal, would be futile and would really only obscure the question that we have to deal with because it is our basic contention that whatever we call these proceedings, juvenile proceedings, to find a child guilty of law violation and to incarcerate him for a substantial period of time unless, unless then the most certain standard of proof known to our law is a violation of due process and it is a violation of due process, I would submit, however that concept maybe defined.

Whether it is as in Mr. Justice Black's, view the law of the land where an adult is accused of a crime and confined or whether it is considered the fundamental fairness of the proceedings and although much has been said by this Court and other courts about the fairness of this standard where liberty is at stake for law violation, I would just like to reiterate a couple of considerations and that is the standard after all expresses an attempt to reduce the chance of risk when an innocent person is going to be convicted.

It is a flag as it were to the fact finder that you must be very, very certain that this is the person that did the act and in fact as this Court noted in Coffin against the United States many times, many years ago, it is really in fact a corollary to the presumption of innocence and I would doubt that anyone would suggest that that most fundamental presumption should not attach to somebody who is accused merely because of his age and of course a reasonable --

Chief Justice Warren E. Burger: Well, is that the only reason for it, merely because of his age or is it because whether misguided or well-advised, a system of juvenile courts was set up to take people under a given age out of the criminal process and away from the stream of criminal proceedings and to protect them, isn't that the background?

Ms Rena K. Uviller: Mr. Chief Justice, yes precisely and we make no challenge to the policy of a legislature, which seems to be uniformed throughout the country, to establish separate courts apart from the criminal process to try and deal with young offenders.

We don't challenge the assumptions on which that legislative policy is based.

Chief Justice Warren E. Burger: In New York, is there a judgment of guilt in a criminal act in this kind of a proceeding?

Ms Rena K. Uviller: He was found guilty of a law violation.

My only contention is that within these specialized courts, designed as you suggest to save youngsters before they become perhaps “non-rehabilitatable,” if there's such a word, to offer them special kinds of services, but we only ask that within these special courts the limitations of the Constitution apply, so that fundamental fairness is recognized and observed.

Chief Justice Warren E. Burger: That's really a demand for the best of both worlds, isn't it?

Ms Rena K. Uviller: Yes and I think a child, a young offender, is indeed entitled to that and I would like to just for a moment deal with one of the contentions that the city has raised about this confinement procedure.

The City of New York has suggested well, there are other kinds of confinement that are based upon a preponderance of the evidence and suggest this is -- does not differ from those kinds of confinement.

And the city cites such things as the confinement of mentally ill people and alcoholics and narcotics addicts and I would say that it really strains the analogy to compare this kind of a case with that kind of case.

In those cases, you're dealing essentially with the distillation of medical testimony relating to a physical or mental condition.

Expert opinions, subject to very honest differences of opinion, what is an alcoholic or how sick is this person, but here we're talking about, did Johnny Jones do X on Y night?

Justice Potter Stewart: Well, let's assume you may be right with respect to commitment of the incompetence or narcotics addicts or alcoholics and so on, but coming closer to home right here in New York, as I understand the city's argument that children maybe confined and maybe confined in substantially or exactly the same place that this young man was confined after finding that there are persons in need of supervision and I would gather that doesn't need all sorts of expert testimony.

That's not a -- and would you concede that in order to support a finding that a young person is in need of supervision that preponderance of the evidence is all that's required?

Ms Rena K. Uviller: Well, Mr. Justice Stewart, I would say that of course there is some distinction because in one case we're talking about a law violation and in another case not but --

Justice Potter Stewart: But doesn't the young person -- isn't that -- if possible he's going to end up in the same institution?

Ms Rena K. Uviller: Very likely that he will.

I would say, however, that the way the statute reads in New York, there is some question and it's rather broadly defined.

However, as a matter of practical, as a practical matter, in New York, the courts have required that when someone is charged with being a person in need of supervision that he's incorrigible, that one may not merely accuse him of being incorrigible that one must charge specific acts of misconduct.

One must show that Johnny Jones was out away from home for two weeks from such and such date to another date, that he has been drinking intoxicating beverages, that he's associating with bad company namely, Sam Smith etcetera, etcetera, and that must be proved.

Justice Potter Stewart: But none -- and none of these things so far that you've mentioned and I suppose truancy would be another --

Ms Rena K. Uviller: Yes.

Justice Potter Stewart: -- would be a criminal offense if committed by an adult.

Ms Rena K. Uviller: No, I -- it would not but I would suggest that the only implication of the case today is that perhaps the PINS case has says they're called should also be proved beyond a reasonable doubt and I --

Justice Potter Stewart: Of a person in need of supervision.

Ms Rena K. Uviller: Yes and the reason I suggest that is that again although it has no corollary in the criminal law, it is an allegation of misconduct and would seem intolerable for two boys to be in precisely of the same institutions; one, on a higher standard of proof, one on the lower standard of proof, both having been found guilty of misconduct.

And I would also think perhaps --

Justice Potter Stewart: So, so -- at least arguendo you concede the city is right to that extent in its -- in its what are we coming to argument?

Ms Rena K. Uviller: Well, in only to that extent.

The city has suggested in its brief, well, if this Court finds today that a finding of wrong doing must meet high standards of reliability, that means the whole panoply of criminal procedures will apply, that means it will be jury trials and every other protection.

I maintain that it's absolutely not so.

This is an entirely separable issue.

It is perfectly possible for this Court to find that it is required as a matter of fundamental fairness that the fact finder to be very certain of the child's guilt and not accord or determine any one of these other protections.

It may well be that this Court will at some time determine that these other things are necessary, but certainly not as a result to this case.

Justice Potter Stewart: But just as so I understand it you -- I understood that you would say that logic which compelled the result that if a standard of proof of guilt beyond a reasonable doubt is required here in Constitution and the same standard would be required in the New York system to prove that a young person was a person in need of supervision.

Ms Rena K. Uviller: Precisely, yes sir.

Justice John M. Harlan: Do you have to go no further in this case to prevail and say that where the charge against the delinquent is a criminal charge, a charge, an act which is committed by an adult, it would be a crime that if no circumstances you'd be proofed beyond a reasonable doubt or whatever label you put on it is required.

You don't have to go any further than that, do you?

Ms Rena K. Uviller: I would say --

Justice John M. Harlan: You might want to but you don't have to.

Ms Rena K. Uviller: You don't have to, right.

Chief Justice Warren E. Burger: You want -- do you want all these children put right into the criminal court system tried under criminal, full-scale criminal standards?

Ms Rena K. Uviller: No, Your Honor.

I think if I may say, I think that the intention of the reformers when the juvenile system began in this country at the turn of the century was to try to bring to bear upon the young offender whatever notions of psychology, sociology, rehabilitating and early training that was possible and deemed it advisable to do these in separate courts with different procedures and I'm not quarreling with that.

I think that that is perfectly appropriate but I think maybe at this point, it's important to note that that hope of the reformers will not be affected by finding that, that fact finder be very sure that the child has demonstrated in need for those rehabilitative services and perhaps describing the New York system would best explain how this works and why the finding -- the holding that we urge today will not detract from what you concede up as the efforts of the juvenile system to rehabilitate youngsters.

Chief Justice Warren E. Burger: Well, but aren't you moving -- aren't you moving every point in your case toward a criminal proceeding?

Ms Rena K. Uviller: No, Mr. Chief Justice.

I would say that this finding, this -- what we are urging today is really even more fundamental than the rights accorded to children in Gault.

I would say that to ask the fact finder to be very sure that the child has committed the act which indicates he needs rehabilitation, that he'd be very certain of that, will change the court in it's everyday functioning much less than for example according a child the privilege against self-incrimination.

That goes much closer to changing the posture of the Court perhaps not in New York but elsewhere than a simple requirement that before you give the child these services, and there is some debate as to how effective they are, you must be very sure that he really needs them, that he has committed that robbery that shows that he needs help.

In New York, for example, if I may explain for a moment the hearing is bifurcated one.

It's a two-stage proceeding.

A child is brought to the fact finding hearing.

There, he's given a petition which has the charge in it and the judge hears the fact, he may only consider competent, relevant, and material evidence.

No social history is permitted of the judge at that time by New York statute.

They can have big case on his family's problems and the boy's psychiatric history but the judge may not see it.

He must make an independent determination whether the boy committed this act or not.

Once that finding of guilt is made, the child then must attend what is known as a dispositional hearing.

Justice Potter Stewart: It's not however a finding of guilt as such, is it?

Ms Rena K. Uviller: It would be a euphemism to call it anything else than that.

Justice Potter Stewart: Well, what if in New York -- to explain in the New York system, what does New York call it?

Ms Rena K. Uviller: It's called a fact finding.

Chief Justice Warren E. Burger: Well isn't that -- isn't that the predicate of the whole system?

Didn't these reformers who set up the system which the courts are now dismantling piece by piece originally say that no lawyers could be there, the judge wouldn't have a robe, there wouldn't be a bench, it couldn't be any newspaper reporters there and no one could mention his name, weren't all these steps done to protect the child from the traumatic experience of the criminal court setting?

Ms Rena K. Uviller: Well, Mr. Chief Justice they were but I think Gault quite documented the fact that the hopes that the child would unequivocally stand to benefit from these procedures.

It has not been realized and I don't think here it would appropriate to go into a reevaluation of how successful the system has been in New York.

Chief Justice Warren E. Burger: But the Court has started to do it?

Ms Rena K. Uviller: Well, I would like to say in that respect that the Court of Appeals in New York stressed the benefits to the juvenile of these --

Chief Justice Warren E. Burger: I'm speaking of this Court.

This Court started to make that evaluation of the “unwisdom” of the system.

Ms Rena K. Uviller: It has made that evaluation and therefore I –-

Chief Justice Warren E. Burger: It's a very sound legislative evaluation probably?

Ms Rena K. Uviller: A sound legislative evaluation that that the –-

Chief Justice Warren E. Burger: That the system isn't working very well, but is it -- is it -- is it up to us to be amending and is up to the people who made it to be amending?

Ms Rena K. Uviller: Well, I think we're not asking this Court to amend it.

We're only saying that within the legislative structure, the elements of fair play prevail.

Simply that I --

Justice Thurgood Marshall: But is it your position that the only thing you're complaining about is the standard of proof?

Ms Rena K. Uviller: Yes.

Justice Thurgood Marshall: You don't complain about the judge, how he acts, where the trial is, what the proceeding is, what the rules, all you want is that -- is that your position?

Ms Rena K. Uviller: That's precisely right, Mr. Justice Marshall.

Justice Thurgood Marshall: You don't want to give up any of the other benefits?

Ms Rena K. Uviller: That's right.

I want, we want as it has been suggested, the best of both worlds.

Justice Thurgood Marshall: And if your rule were the rule when this case with tried this fellow would have been turned loose?

Ms Rena K. Uviller: That's right.

Justice Thurgood Marshall: Under the judge's own statement?

Ms Rena K. Uviller: That's right.

I think a word should be said.

Justice John M. Harlan: Who was the trial judge?

Ms Rena K. Uviller: Pardon me.

Justice John M. Harlan: Who was the trial judge?

Ms Rena K. Uviller: It was a judge of the family court, Judge Madonick who's --

Justice John M. Harlan: Well, a lot of them in Court of Appeals, Judge Fuld, Heaney and somebody else.

Ms Rena K. Uviller: Judge Fuld, Judge Heaney and Judge Burke, I believe.

I would like to just make one note about the alleged benefits that the Court of Appeals stressed in its opinion.

The Court of Appeals in discussing the advantages of the trial of this so-called secrecy and non-stigma of the proceedings, neglected of course to underscore the harsh reality that when a child is found guilty in this Court, he is subjected to substantial confinement and the facilities which even in New York are subject to a great deal of criticism.

Now, the city in its brief has a compounded this omission by the Court of Appeals by again stressing the benefits of the New York system without -- and suggest of the problems with the institutions have never been shown to be relevant to New York and the Attorney General in his amicus brief doubly compounds this by actually suggesting that this is summer camp and that children just can't wait to go to the training school.

I would say here that we would insist that the standard of proof be high even if these were model institutions, but I cannot let the suggestion of the Attorney General go un-contradicted at this point.

A recent study by the New York Community Service Society, one of the oldest, private service organizations in New York, has issued a report indicating that the facilities in New York are very poor indeed, that rehabilitation and counseling range from token to nonexistent, that there are inadequate provisions not only for vocational training but for even ordinary schooling.

That there are --

Chief Justice Warren E. Burger: Aren't these -- aren't these propositions that should be addressed to the legislature and not to this Court?

Ms Rena K. Uviller: I only -- I only raised them here Your Honor because it has been suggested by my adversary that all theses criticisms that would make it question of fundamental fairness to have a high standards of proof are not relevant in New York because New York's institutions are so marvelous and I would just suggest this is totally contrary to the fact and that there is out -- in short, there's ample a basis for the conclusion of the Community Service Society that the children in these institutions validly view their stay there as doing time.

Justice Potter Stewart: Well, but isn't –- am I not correct that PINS people end up there too?

Ms Rena K. Uviller: Yes they do.

Justice Potter Stewart: Persons in need of supervision?

Ms Rena K. Uviller: Yes they do indeed.

I would say roughly half or not quite half of the children in the, I believe, in these institutions are there as persons in need of supervision.

Justice Potter Stewart: And they're in need of supervisions and as to whom has been no finding probably at least certainly hasn't necessarily been any finding that they have performed any act that if committed by an adult would be a criminal offense.

Ms Rena K. Uviller: That's right.

Justice Byron R. White: And no judgment that they are delinquent?

Ms Rena K. Uviller: And no judgment they're delinquent.

Justice Potter Stewart: But just that they are persons in need of supervision?

Ms Rena K. Uviller: Yes.

Justice Potter Stewart: What happens to neglected children or defective children or dependent children in New York?

Ms Rena K. Uviller: Neglected children are sent to completely separate institutions and while I'm sure there is again always room for improvement in these facilities, these are not locked shelters.

And a -- finding that a child has committed a violation of law also subjects him to a temporary detention.

There is -- there are statistics to the effect that some 35% of the children who are found guilty of law violations spend some time in the temporary detention facility and of those some 40% I believe are there beyond 30 days.

Now, it takes just one visit to that detention facility in New York to convince one that we're not talking about an open, free shelter for little children.

It is a facility where you cannot walk 30 feet but that the custodian doesn't have to unlock the doors to let you go through the corridors and children are locked into their rooms at night.

Now, there are various branches.

There are some facilities that are somewhat more open for the younger children, but the essential facility in Bronx County is the kind that I described

Justice John M. Harlan: You've been making the same argument surely, wouldn't you and disagreed on both sides of the physical facilities of these institutions as pertinent?

Ms Rena K. Uviller: I would, I would Mr. Justice Harlan.

I would say that we want without arguing about although I have been arguing about the inadequacy of the facilities but even assuming they were a model --

Justice Potter Stewart: Well, except I think your argument necessarily depends, does it not, on persuading the Court that this is punishment?

Ms Rena K. Uviller: Well, it helps it --

Justice Potter Stewart: Well, it's necessary in the argument, isn't it?

Ms Rena K. Uviller: Yes [Attempt to Laughter].

Justice Potter Stewart: It is punishment.

Justice Hugo L. Black: I understood that the only question you brought up, the only question you raised, the only question the Court decided was whether or not an infant could be found guilty of an offense on proof of a mere preponderance of evidence or whether he has a proof of beyond a reasonable doubt?

Ms Rena K. Uviller: Yes.

Yes, Mr. Justice Black.

I'm only trying to somewhat --

Justice Hugo L. Black: I say though, isn't that the only question before us?

Ms Rena K. Uviller: Yes.

Yes it is.

Justice Hugo L. Black: And whether the Constitution requires to be beyond a reasonable doubt?

Ms Rena K. Uviller: That's right.

Chief Justice Warren E. Burger: Do you know of any constitutional prohibition against this Court deciding that the preponderance of evidence should be rule in all full scale criminal cases in all the states and in the federal courts?

What in the Constitution would prohibit that?

Ms Rena K. Uviller: Nothing would prohibit it.

I would think we're determining what is concept of a fair trial.

Chief Justice Warren E. Burger: I'm not in favor of it, if you understand it, I'm just asking whether we have the power to do it.

Ms Rena K. Uviller: Yes you do, I would say.

Justice Byron R. White: You're relying with the due process law?

Ms Rena K. Uviller: Yes I am.

Justice Byron R. White: Then that's certainly the idea of a fair trial, fundamental fairness?

Ms Rena K. Uviller: Yes.

Justice Byron R. White: What happens in your family court when there is a fact finding and then the question of whether he's delinquent comes out, doesn't it?

Ms Rena K. Uviller: Well, there's a fact finding and then he goes to disposition at this --

Justice Byron R. White: But there is no finding of delinq -- conclusion of delinquency at the fact finding?

Ms Rena K. Uviller: I would say that even if there is, even if it is assumed after dispositional hearing that he does not require the supervision of the Court and he's dismissed therefore, there is still a finding of guilt against him and that finding of guilt carries with it the same stigma --

Justice Byron R. White: But how is that expressed?

The under the law he's either a delinquent or he's innocent?

Ms Rena K. Uviller: Well, it is expressed that he has been found guilty of a certain criminal act or an act, which would be a crime.

However, we do not adjudicate him a delinquent because he has not demonstrated that he needs confinement or supervision.

However, the effect --

Justice Byron R. White: And then what happens in that case, probation or what?

Ms Rena K. Uviller: No, he might not -- it's like a suspended judgment.

I would suggest it's very much like a -- like a suspended sentence.

The child is determined to have committed act but it is dismissed, so-called because he does not require probation say.

However, in future years, when these records become pertinent in his life, as in the military, all schools have a record of these proceedings, they will check and they will know --

Justice Byron R. White: And you would say that even if their fact finding is followed by no conclusion about delinquency, no commitment that fact finding must be beyond a reasonable doubt?

Ms Rena K. Uviller: Yes, I would say so and I would say Your Honor, it is a very, analogous to the Specht v. Patterson kind of cases where the Court is required to hold a separate hearing to determine whether the individual will have a certain special kind of sentence imposed upon him, but this does not reduce the state's burden to provide the -- to prove the underlying law violation by a proof beyond a reasonable doubt.

And the suggestion by the city that this two-stage proceeding somehow relieves the state of proving the underlying act by the highest standard of proof is really essentially an unsound one.

In sum, we're merely suggesting that let the state services whether they're good or bad be reserved for children against to whom it's been demonstrated really require them by having prove the acts, requires such rehabilitation.

I'll reserve the rest of my time, thank you.

Chief Justice Warren E. Burger: Mr. Buchsbaum.

Argument of Stanley Buchsbaum

Mr. Stanley Buchsbaum: Chief Justice, may it please the Court.

At the outset, I want to take a moment on the finding by the court below.

I think that it may be a little misleading to suggest that the judge in the family court said that if the standard of proof was proved beyond a reasonable doubt, he would have reached a different result.

And early in my brief, I discussed this in quote from the appendix as to what happened at that point and if this becomes an element in the case which I rather doubt, I think the Court should look at what happened.

Because the judge made his finding in accordance with the law and then counsel for the trial started what ended up as philosophic discussion about the various standards of proof and the judge then made some remarks which in the appellant's brief have all been telescoped even though they're page apart and gives the feeling that he is talking about this specific case, when apparently he is talking about determinations in general.

Now, let me turn to the central issue.

The question is whether the Constitution requires that in the proceeding of this kind, there must be proof beyond a reasonable doubt and that the preponderance of the evidence standard is inadequate.

Now, there is no specific constitutional provision.

So the question comes down to whether due process requires it.

And as I see it that either must go along one of two paths; either that in a criminal case, you must have such proof and this is a criminal case or two the nature of what happens after this proceeding, the loss of liberty, the incarceration, the possibility of that is of such a nature that due process requires that standard of proof.

Aside from those two paths, I cannot see how this can be decided as a constitutional question.

Now, much of the discussion we've had in this field and I've seen it in some opinions in the Law Review articles discuss this without referring to the Constitution on the assumption that due process is what I think is wise and if I think this is wise, the Constitution requires it and obviously, this court does not approach the problem that way.

Now, let's see whether this is a criminal proceeding and here I suggest that Mr. Justice Fortas in the Gault opinion was writing far ranging.

He was writing about the entire juvenile system and he was dealing with a case which at least to me seemed quite horrendous.

And what he did was from all the writings, studies, very often students at the law school probably had never seen a juvenile court, what they wrote, he was picking out all the things that went wrong.

If something went wrong in Oregon which didn't go wrong in any other state that was listed.

Now, it seems to me that we're dealing with the question of whether the Court is the equivalent of a criminal court, we must deal in this case with the New York Court.

Justice John M. Harlan: Let me ask you a question, supposing now, you say there's no due process question here, supposing New York passed a law saying our juvenile calendar load is very, very heavy and we will amend our laws so that these children who may be in trouble need supervision and need something.

They can be found juvenile delinquents upon the judge finding that there's probable cause to believe they are.

Would you think that was it?

Do you think that'll raise a question under the Due Process Clause?

Mr. Stanley Buchsbaum: I would want to think it would.

Justice John M. Harlan: You think it would?

Mr. Stanley Buchsbaum: If it's just -- what I understand probable cause is a probability not a finding of decision --

Chief Justice Warren E. Burger: It was in the sense of getting a search warrant.

Justice John M. Harlan: The judge has a smell for it and he thinks the chances are pretty good that this youngster is a juvenile delinquent and that would be enough under the hypothetical statute I'm talking about.

Mr. Stanley Buchsbaum: I would think that almost anything which depends upon someone saying, I think, this maybe so when therefore finality results from it.

What we're dealing with a subject altogether different from a juvenile delinquency would raise a due process question.

Justice John M. Harlan: Do you think it would?

Mr. Stanley Buchsbaum: I think in a purely civil case.

Justice John M. Harlan: There's nothing in the Constitution that says it does except the Due Process Clause?

Mr. Stanley Buchsbaum: No but I think due process does require that there must be some element of logic in reaching a conclusion and that there's something lacking in logic if you say something must happen as a finality in a case in any type of case simply because someone thinks it might have happened.

No conclusion as to this happened or this didn't happen, I think that would raise a due process question.

Chief Justice Warren E. Burger: Well, I suppose it would follow a fortiori that if New York had a rule that when some juvenile was charged without more of the Court would incarcerate him, so that what you're saying is that this is a spectrum and under the Due Process Clause it's question of degree if it's a due process question at all?

Mr. Stanley Buchsbaum: Yes.

I think that's true, but I think if you're going to hold out from all your cases those which to which you must apply the standard of proof beyond a reasonable doubt, but I only see two basis for selecting the juvenile delinquency proceeding.

It's falling into that category.

One, either that it's so akin to the criminal case that requires it or two, that's a proceeding which may lead to loss of liberty and therefore requires it.

Justice Thurgood Marshall: What do you call a charge if a 12-year-old broke into a house and stole a television set, is that anything other than a crime?

Mr. Stanley Buchsbaum: That depends upon whether you're going to say that any attempt to make reform, you just look through it and we had at Rhode Island a judge who reached the conclusion that the appellant seeks and in his opinion, he said the murder is murder, burglary is burglary and we must recognize it, but that's exactly what the juvenile court system was aimed to prevent.

It was a --

Justice Thurgood Marshall: Well, what was he charged with in the juvenile court, what act?

Mr. Stanley Buchsbaum: There is no question that under the New York law, to start a juvenile delinquency proceeding, you must charge someone with an act which have committed by an adult would constitute a crime.

Now, I'm going to suggest that this constitutional question cannot depend upon that because suppose New York passes a law next year, lumps persons in need of supervision and the present juvenile proceeding on under a title deviant conduct, deviant conduct and says that you can bring this proceeding and show that the child's conduct deviates from what is regarded as a desirable norm and then proceed.

I don't think that change would make something constitutional which --

Justice Thurgood Marshall: I don't think there would be any problem with it?

Mr. Stanley Buchsbaum: Either even though the deviating conduct would be --

Justice Thurgood Marshall: I don't see any difference in what you label it.

He is charged with break-in and entry and taking something that belongs to somebody else for the purpose of depriving that person of the use thereof and to me that sound very much a crime.

Mr. Stanley Buchsbaum: Well, but the --

Justice Thurgood Marshall: And I just want to say that one point is in this case.

Mr. Stanley Buchsbaum: I concede that, that there's no question about that.

Justice Thurgood Marshall: That's the only point.

Mr. Stanley Buchsbaum: I don't think there was an issue about it.

Justice Thurgood Marshall: But you don't need reasonable doubt to find out that he in fact was the one who did it.

You don't need reasonable doubt for that, the reason about standard, solely because he was 12 years old.

Mr. Stanley Buchsbaum: Not solely because he is 12 years old, but because being 12 years old, this is not regarded as a crime and he is not being treated as a criminal.

Justice Hugo L. Black: What you are saying as I understand it is that New York has a right if it wants to pass a law that says that a person of 12 years of age shall not be charged with or tried, or convicted for any crime.

Mr. Stanley Buchsbaum: That's right and in this proceeding, the things that occur in this proceeding are not to be distorted as the equivalent of his having been charged with a crime or having been found guilty of a crime and that's why it's labeled a fact finding determination and then you have a dispositional hearing which is not a suspended sentence.

No matter what the child did, no matter how if it serious a crime that would have been done, considered if committed by an adult, a clear cut evidence the child did it, if they find that this child does not need confinement or supervision to avoid this happening again or avoid similar conduct happening again, he is not found to be a juvenile delinquent and the case would have been dismissed.

Justice Hugo L. Black: How do you say that New York has passed such a law as I've mentioned that no child of 12, shall be charged with or convicted of a crime?

Mr. Stanley Buchsbaum: That's right, Your Honor and there's no such thing as waiving to the criminal court in New York.

No such thing at all as long as the charge --

Justice Hugo L. Black: Do you say that law has been construed as meaning a child of 12 shall not be convicted or charged for the crime?

Mr. Stanley Buchsbaum: That's right, Your Honor.

Justice Thurgood Marshall: But he can be put in a prison for six years?

Mr. Stanley Buchsbaum: He can be confined in appropriate institution for a limited period which after being reviewed maybe extended to a longer period where if the child is 12 could possibly be extended.

There is time to succeed --

Justice Potter Stewart: And precisely the same thing can happen to a child found to be in need of supervision?

Mr. Stanley Buchsbaum: Exactly.

Justice Byron R. White: Or insane.

Mr. Stanley Buchsbaum: Or insane, you also can be confined in the --

Justice Byron R. White: Or having small pox for something like that.

Mr. Stanley Buchsbaum: But also just to point out the types of distinctions, the civil commitment at least in New York and I think in many other states does not require proof beyond a reasonable doubt.

Now, New York limits civil commitments generally, but other the states do not limit the period of times as much in New York.

Chief Justice Warren E. Burger: Is the child required to respond to questions in the New York proceeding?

Mr. Stanley Buchsbaum: The answer is no.

Everything that was found to be wrong in the Gault case, New York by statute had cured long before the Gault case.

I will not attempt to --

Justice John M. Harlan: Well, the Gault case doesn't say anything about the Fifth Amendment?

Mr. Stanley Buchsbaum: It said that the child need not to -- could remain silent.

Justice John M. Harlan: What?

Mr. Stanley Buchsbaum: It said that the child may remain silent.

That was the one aspect in which the Gault case did touch upon this as though it was an issue of due process which would -- as to all other aspects as spoken by due process and civil or criminal cases required certain things.

In this respect, it said that this was analogous to a criminal case.

Although it went on immediately after it showed that that remark was unnecessary because in Arizona the child still could have been waived to a criminal court and tried on a criminal basis.

Well, what I suggest and I'm not going to attempt to cover all of the various aspects in which this juvenile court in New York differs from a criminal court, but there are these differences.

There is not this finding of guilt as we're told and while the places of confinement may be not be ideal and much can be done to prove it.

We do find in New York, there is a constant restudy on this field, there is a constant attempt to improve far too slow, far too slow and often inadequate, but there are constant changes and while I hesitate to speak of the manner of confinement without knowing precisely and it wasn't evident from the record, the brief of the Attorney General, submitted, does point out and I'm not saying that anyone is willing to go to these places, that the training schools operate under a college unit system which generally is made up of semi-independent groups, many of which a limited to 20 young people that there are in an open setting without the restraint of locks or bars, that house parents live on the premises and act as guides and mentors as well as supervisors, that home visits are made by the boys and girls on a regular basis and vocational academic features are provided.

Now, perhaps this is the idea that they aim at and perhaps they don't always comply but this is what they're trying to do.

Justice Potter Stewart: As suggested by the Chief Justice and Mrs. Uviller directed herself to this, this really doesn't have much to do with the issue before us.

Now, except insofar as it that may go to whether or not what happened here was the equivalent of a finding of guilt and the imposition of punishment.

Mr. Stanley Buchsbaum: Yes

Justice Potter Stewart: That's the -- and if it is -- if it is tantamount to that, and if the constitution requires that in a criminal case where the issue is the determination or guilt and the imposition of punishment, the due process or some other provision of the Constitution requires proof beyond a reasonable doubt and Mrs. Uviller is correct and if -- but whether or not these are well or badly run institutions or how many house mothers they have and how big the cottages are and so on.

Except insofar as it goes, maybe its your submission that this is not the equivalent of guilt and punishment, those issues are really for the New York state legislature, not for the courts.

Mr. Stanley Buchsbaum: Exactly.

Now, Mr. Justice Marshall has suggested that the mere fact that this starts off because of an act which would constitute a crime, everything flows to it.

I think that's a suggestion and it must be treated as a crime and all these trimmings that you're putting on and all you've got is a criminal court trying a criminal case to put somebody of way as you do in the criminal court and therefore at least in approach, in answer to that approach, I think it's important to consider every element from the intake procedure where even though a petition is drawn up which says that the child committed an act which would be a crime by an adult and a substantial portion of the case is they review this and never even reaches a fact finding stage and they decide even though the evidence is there, this doesn't call for juvenile delinquency proceeding in this child.

Through the dispositional hearing, where after the evidence may be proved on a basis which go far beyond proof beyond a reasonable doubt, an absolute certainty, nevertheless, there is no finding of juvenile delinquency because the child doesn't need confinement or supervision.

Justice John M. Harlan: Well, then that problem doesn't arise in this case wasn't it as I was saying?

Mr. Stanley Buchsbaum: Yes but I'm suggesting that all these elements should be considered in deciding whether this is really a criminal proceeding.

Now, if the --

Justice Thurgood Marshall: Aren't you really arguing that because of the protection putting around the juvenile in these special court proceedings in the all that is balanced off as in the excuse for not using reasonable doubt as the standard, is that what you are arguing?

Mr. Stanley Buchsbaum: I can only respond this way.

That when this started off, Judge Julian Mack, Rascoe Pound and others, who are the strong proponents of the children's court, certainly did not think that they had found a way of evading constitutional requirements with respect to criminal law and I respectfully submit --

Justice Thurgood Marshall: I'm just asking about your position.

I'm not interested in being Pound or any other people.

I'm asking is that what you're arguing.

Mr. Stanley Buchsbaum: Well, I hardly thought so until Your Honor suggested me.

Justice Thurgood Marshall: The only -- as I understand the petitioner's only point is the denial of the standard of reasonable doubt, that's the only point.

They want to keep all of the other parts, all the good parts.

Mr. Stanley Buchsbaum: And what I -- what I thought I was trying to do was to try to analyze whether there is a constitutional requirement that in this type of proceeding, there must be proof beyond a reasonable doubt.

I didn't think I was trying to distort the nature of the proceeding and I thought I was trying to analyze as to whether a juvenile delinquency court, the juvenile proceeding as designed by its original proponents as revised over the years with attempts to have due process requirements is subject to a further constitutional requirement that you must prove the wrong doing beyond a reasonable doubt or the improper conduct beyond a reasonable --

Justice Hugo L. Black: May I ask you one or two questions to clarify my mind which you argue.

Suppose this child have not been a child but he's been 25 years old and charged with a crime, do you think the Constitution requires the proof to convict -- the Constitution, I'm not talking about anything but the Constitution, requires the proof to be shown beyond a reasonable doubt of his guilt?

Mr. Stanley Buchsbaum: Put this, Your Honor.

Put it – he is charged with a crime --

Justice Hugo L. Black: Charged with the crime, the measure of proof, do you think that the Constitution requires that his proof of guilt be shown beyond a reasonable doubt or that it could be satisfied by showing his guilty by preponderance of the evidence?

Mr. Stanley Buchsbaum: I have found no case that decides that issue.

I would be inclined to think that this Court probably if faced with that issue would reach the conclusion that must be proved beyond a reasonable doubt.

I think, it would say that since --

Justice Hugo L. Black: Well, they'd have to do that on the basis of a criterion that I don't agree to of course which is question of fairness that we have a right to decide what's fair and if we decide it's not fair say it's unconstitutional.

Justice William O. Douglas: Not necessarily because if you took the reasoning of Judge Fuld in New York in his dissent in this case, you would say that the -- or could argue at least that the requirement of a finding beyond a reasonable doubt was necessary to maintain the integrity of the Fifth Amendment unless a juvenile is not a person within the meaning of the Fifth Amendment.

That was his argument, wasn't it?

Mr. Stanley Buchsbaum: Perhaps I misread it.

I didn't quite read it that way.

I thought he was saying that this is a requirement of the, that it become so habitual in this country, that it was necessary but perhaps I misread it.

Justice William O. Douglas: Well he ties it to the Fifth Amendment and I don't know if that's the argument, but this amendment uses the word in any criminal case, shall be compelled in any criminal case and the Sixth Amendment uses a phrase, “and all criminal prosecutions.”

So the question really is whether assuming that reasonable doubt standard is applicable as well as this is a criminal case or what is a criminal prosecution?

Mr. Stanley Buchsbaum: I'm afraid I'm a little dull on that because there's no claim here that the child is required to give any evidence against himself.

Now what --

Justice William O. Douglas: I'm not saying that that he was.

I'm just saying that in terms of the -- of what you call the proceeding, a criminal proceeding, Constitution has called criminal case or criminal prosecution, whether or not those standards would come in to this kind of a proceeding.

That's our --

Mr. Stanley Buchsbaum: That is the essence of the question there and that's why I keep speaking about whether this is truly a criminal proceeding and why I suggest that you can't decide that it's a criminal proceeding just because the trigger that's starts it off is an act which if done by an adult would be a crime.

Chief Justice Warren E. Burger: Isn't the corollary to that statement, if done by an adult would be crime, but if not done by an adult, it is not a crime.

Mr. Stanley Buchsbaum: But certainly that's the intent of the New York law.

Chief Justice Warren E. Burger: I should think it would be the only logical corollary available.

Mr. Stanley Buchsbaum: Well, I think in justice to the other side, if that were a deliberate intent to mislead or even if would not deliberate, if in fact what you really had was a criminal case than just labeling it is not being criminal case would not get by, but it's not merely the label, it's not merely calling in a civil proceeding that makes it any less a criminal case.

The question is, looking at the thing as a whole from beginning to end in every feature of it, is this a criminal proceeding and I submit that while you may find a juvenile court set up in some states, where you'd reach the conclusion, this is nothing but a criminal proceeding that you cannot so find in New York.

Now, it's also been suggested, certainly in my arguments that if you reach this conclusion you must end up with the jury trial in the juvenile courts and if you reach it on the basis of this being a criminal proceeding.

And my suggestion that if you base it on loss of the liberty that this may have an impact on the insanity proceedings and the narcotic addicts proceedings and the civil contempt proceeding and not the issues before this Court but I submit that in this case, the Court will decide which path will be taken down the certain hill and it's hard for me to conceive ever going back up that hill.

Chief Justice Warren E. Burger: What is New York's standard for civil commitment proceedings because of mental disorder?

Mr. Stanley Buchsbaum: As I understand it's preponderance of evidence as in the other proceeding, any other civil --

Chief Justice Warren E. Burger: And you're suggesting there is no difference in these two.

It's just the situations, but if you can put a man in a mental institution for perhaps five or ten years by a preponderance you can put juvenile in a non-criminal proceeding?

Mr. Stanley Buchsbaum: Now -- well, also I might mention at this point that there's been a good deal of emphasis on well, this child might have been confined for six years and if he were an adult it would only be five years.

This may happenstance because the adult who might have been confined for life, the child does the same act and he's 14 years old can at most be confined for four years.

Justice Potter Stewart: This -- while your on that subject I think I saw in the brief that this person has now been released, is that correct or not?

Mr. Stanley Buchsbaum: That's as far as we can determine from the court records.

Justice Potter Stewart: Is there any question of mootness here?

Mr. Stanley Buchsbaum: I would hesitate to suggest that there is mootness.

This is at least I think even if it were moot it would come under the rule that a recurring problem should be disposed of, recurring problem of public importance.

Secondly, the suggestion is made by the appellants that even though there is all this confidentialities, somehow, someway, it may leak out and this casts a reflection on the child which argument if accepted might pull it out of the mootness area.

Justice Potter Stewart: Is the same risk of publicity and of a record and so on being made available to employers in the military and to sentencing judges in criminal cases when the person becomes an adult and so on.

Is that same risk present with respect to a child has been found to be a person in need of supervision or not?

Mr. Stanley Buchsbaum: I can't even speak about the first risk.

See, that's one of the difficulties in this case --

Justice Potter Stewart: It's represented that there is some risk?

Mr. Stanley Buchsbaum: Yes but I don't know how they know.

Somebody found out in the District of Columbia that there is such a risk and there seems to be an assumption that there is such a risk in New York.

Justice Potter Stewart: Well, as I -- as I remember the briefs, it was represented and as a matter of fact and perhaps of law if this person later as an adult commits a criminal offense is found guilty of the criminal offense then his juvenile record is made available to the sentencing judge, isn't that correct?

Mr. Stanley Buchsbaum: To the sentencing judge, yes.

Justice Potter Stewart: Is that correct?

Mr. Stanley Buchsbaum: That is correct.

Justice Potter Stewart: And is that true also with respect to a person who as a juvenile has been found to be a person in need of supervision, that's my question?

Mr. Stanley Buchsbaum: I'm afraid that I don't know the answer.

Justice John M. Harlan: What happens if the prospected employer who wants to know whether the child or the --

Mr. Stanley Buchsbaum: From all I can hear he is not given any such information.

Justice John M. Harlan: What about the military?

Even on request?

Mr. Stanley Buchsbaum: Even on request.

I just don't know about the military and I hesitate to ask because there was no one I could ask who would give me an answer that I would feel assured of is certainty.

So, if I got the answer that would be favorable to my position, I might be misleading the Court if I gave my answer.

I do --

Justice Hugo L. Black: Did I understand you to say that definitely that this person has been discharged on this particular case?

Mr. Stanley Buchsbaum: Yes.

Justice Hugo L. Black: How was he discharged?

Mr. Stanley Buchsbaum: Well, here's what happened, he went away and after he was away for 10 months, he was allowed to live with his parents.

Then apparently as they put it in the docket, he absconded from his parents' home and was picked up on a direction that he sent away for a year.

That year period has passed and there is nothing on the record to indicate that anything further has been done, any other attempt to confine him.

Justice Hugo L. Black: He is not under confinement now under this charge?

Mr. Stanley Buchsbaum: As far as under this charge or apparently under any other charges as far as we can find from the records.

I gather my time is up.

Chief Justice Warren E. Burger: Your time is exhausted, Mrs. Uviller, but if there are perhaps any questions from the Court, you may respond to them in three minutes?

No there's no time left.

Justice John M. Harlan: I have one question Chief Justice and I'd like to ask a little collateral agreement.

Who handles these cases for the advisory of the judge, representative of the District Attorney's Office or what?

Do they have stand for their own or what?

Rebuttal of Rena K. Uviller

Ms Rena K. Uviller: No, Your Honor.

Where the petitioner or the complainant is a police officer, a representative of the legal bureau of the police department of the City of New York has been serving as the prosecuting attorney.

There were any questions about mootness I --

Justice John M. Harlan: I'm interested in the mootness question Mrs. Uviller.

Ms Rena K. Uviller: Well, I'd like to say when notice of appeal was filed to this Court, this child was under confinement and he was discharged from confinement I believe 10 days or two weeks before this Court noted probable jurisdiction which was some seven months I believe after notice of appeal was filed in this Court.

Justice John M. Harlan: He had been released before we noted problem of jurisdiction?

Ms Rena K. Uviller: He was released two weeks before you noted probable jurisdiction but seven months after, the notice of appeal was filed to this Court and as far as the mootness question is concerned in dealing with Sibron criteria, I would say that the military does know about these things.

It does have an effect.

One need only go into family court.

I've seen the stack of requisitions from the military which have requested information because the child is asked to disclose it or otherwise he doesn't qualify.

Justice Thurgood Marshall: Is that a violation of law in New York?

Ms Rena K. Uviller: It's not a violation because the law only says, the Court, the record shall not be open to indiscriminate public review, but the court in its discretion may reveal it to anybody and it is done both in civil service and in the military situation.

Justice John M. Harlan: But you do.

It is clear, isn't it and you don't dispute that these appellant have been released from custody and was released from custody indeed before we noted probable jurisdiction, is that it?

Ms Rena K. Uviller: Yes, but I would say that the stigma is still bring it within the Sibron criteria.

Justice Potter Stewart: Yes, I understand your argument in Sibron.

Ms Rena K. Uviller: Yes, thank you.

Chief Justice Warren E. Burger: The case is submitted.

Thank you for your submission.