Relying on a preponderance of the evidence, the standard of
proof required by § 744(b) of the New York Family Court Act, a New
York Family Court judge found that appellant, then a 12-year-old
boy, had committed an act that "if done by an adult, would
constitute the crime . . . of Larceny." The New York Court of
Appeals affirmed, sustaining the constitutionality of § 744(b).
Held: Proof beyond a reasonable doubt, which is
required by the Due Process Clause in criminal trials, is among the
"essentials of due process and fair treatment" required during the
adjudicatory stage when a juvenile is charged with an act that
would constitute a crime if committed by an adult. Pp.
397 U. S.
361-368.
2 N.Y.2d 196, 247 N.E.2d 253, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Constitutional questions decided by this Court concerning the
juvenile process have centered on the adjudicatory stage, at
"which a determination is made as to
Page 397 U. S. 359
whether a juvenile is a 'delinquent' as a result of alleged
misconduct on his part, with the consequence that he may be
committed to a state institution."
In re Gault, 387 U. S. 1,
387 U. S. 13
(1967).
Gault decided that, although the Fourteenth
Amendment does not require that the hearing at this stage conform
with all the requirements of a criminal trial, or even of the usual
administrative proceeding, the Due Process Clause does require
application during the adjudicatory hearing of "
the essentials
of due process and fair treatment.'" Id. at 387 U. S. 30.
This case presents the single, narrow question whether proof beyond
a reasonable doubt is among the "essentials of due process and fair
treatment" required during the adjudicatory stage when a juvenile
is charged with an act which would constitute a crime if committed
by an adult. [Footnote
1]
Section 712 of the New York Family Court Act defines a juvenile
delinquent as "a person over seven and less than sixteen years of
age who does any act which, if done by an adult, would constitute a
crime." During a 1967 adjudicatory hearing, conducted pursuant to §
742 of the Act, a judge in New York Family Court
Page 397 U. S. 360
found that appellant, then a 12-year-old boy, had entered a
locker and stolen $112 from a woman's pocketbook. The petition
which charged appellant with delinquency alleged that his act, "if
done by an adult, would constitute the crime or crimes of Larceny."
The judge acknowledged that the proof might not establish guilt
beyond a reasonable doubt, but rejected appellant's contention that
such proof was required by the Fourteenth Amendment. The judge
relied instead on § 744(b) of the New York Family Court Act, which
provides that
"[a]ny determination at the conclusion of [an adjudicatory]
hearing that a [juvenile] did an act or acts must be based on a
preponderance of the evidence. [
Footnote 2]"
During a subsequent dispositional hearing, appellant was ordered
placed in a training school for an initial period of 18 months,
subject to annual extensions of his commitment until his 18th
birthday -- six years, in appellant's case. The Appellate Division
of the New York Supreme Court, First Judicial Department, affirmed
without opinion, 30 App.Div.2d 781, 291 N.Y.S.2d 1005 (1968). The
New York Court of Appeals then affirmed by a four-to-three vote,
expressly sustaining the constitutionality of § 744(b), 24 N.Y.2d
196, 247 N.E.2d 253 (1969). [
Footnote 3]
Page 397 U. S. 361
We noted probable jurisdiction, 396 U.S. 885 (1969). We
reverse.
I
The requirement that guilt of a criminal charge be established
by proof beyond a reasonable doubt dates at least from our early
years as a Nation. The
"demand for a higher degree of persuasion in criminal cases was
recurrently expressed from ancient times, [though] its
crystallization into the formula 'beyond a reasonable doubt' seems
to have occurred as late as 1798. It is now accepted in common law
jurisdictions as the measure of persuasion by which the prosecution
must convince the trier of all the essential elements of
guilt."
C. McCormick, Evidence § 321, pp. 681-682 (1954);
see
also J. Wigmore, Evidence § 2497 (3d ed.1940). Although
virtually unanimous adherence to the reasonable doubt standard in
common law jurisdictions may not conclusively establish it as a
requirement of due process, such adherence does "reflect a profound
judgment about the
Page 397 U. S. 362
way in which law should be enforced and justice administered."
Duncan v. Louisiana, 391 U. S. 145,
391 U. S. 155
(1968).
Expressions in many opinions of this Court indicate that it has
long been assumed that proof of a criminal charge beyond a
reasonable doubt is constitutionally required.
See, for
example, Miles v. United States, 103 U.
S. 304,
103 U. S. 312
(1881);
Davis v. United States, 160 U.
S. 469,
160 U. S. 488
(1895);
Holt v. United States, 218 U.
S. 245,
218 U. S. 253
(1910);
Wilson v. United States, 232 U.
S. 563,
232 U. S.
569-570 (1914);
Brinegar v. United States,
338 U. S. 160,
338 U. S. 174
(1949);
Leland v. Oregon, 343 U.
S. 790,
343 U. S. 795
(1952);
Holland v. United States, 348 U.
S. 121,
348 U. S. 138
(1954);
Speiser v. Randall, 357 U.
S. 513,
357 U. S.
525-526 (1958).
Cf. Coffin v. United States,
156 U. S. 432
(1895). Mr. Justice Frankfurter stated that
"[i]t is the duty of the Government to establish . . . guilt
beyond a reasonable doubt. This notion -- basic in our law and
rightly one of the boasts of a free society -- is a requirement and
a safeguard of due process of law in the historic, procedural
content of 'due process.'"
Leland v. Oregon, supra, at
343 U. S.
802-803 (dissenting opinion). In a similar vein, the
Court said in
Brinegar v. United States, supra, at
338 U. S. 174,
that
"[g]uilt in a criminal case must be proved beyond a reasonable
doubt and by evidence confined to that which long experience in the
common law tradition, to some extent embodied in the Constitution,
has crystalized into rules of evidence consistent with that
standard. These rules are historically grounded rights of our
system, developed to safeguard men from dubious and unjust
convictions, with resulting forfeitures of life, liberty and
property."
Davis v. United States, supra, at
160 U. S. 488,
stated that the requirement is implicit in "constitutions . . .
[which] recognize the fundamental principles that are deemed
essential for the protection of life and liberty." In
Davis, a murder conviction was
Page 397 U. S. 363
reversed because the trial judge instructed the jury that it was
their duty to convict when the evidence was equally balanced
regarding the sanity of the accused. This Court said:
"On the contrary, he is entitled to an acquittal of the specific
crime charged if, upon all the evidence, there is reasonable doubt
whether he was capable in law of committing crime. . . . No man
should be deprived of his life under the forms of law unless the
jurors who try him are able, upon their consciences, to say that
the evidence before them . . . is sufficient to show beyond a
reasonable doubt the existence of every fact necessary to
constitute the crime charged."
Id. at
160 U. S. 484,
160 U. S. 493.
The reasonable doubt standard plays a vital role in the American
scheme of criminal procedure. It is a prime instrument for reducing
the risk of convictions resting on factual error. The standard
provides concrete substance for the presumption of innocence --
that bedrock "axiomatic and elementary" principle whose
"enforcement lies at the foundation of the administration of our
criminal law."
Coffin v. United States, supra, at
156 U. S. 453.
As the dissenters in the New York Court of Appeals observed, and we
agree,
"a person accused of a crime . . . would be at a severe
disadvantage, a disadvantage amounting to a lack of fundamental
fairness, if he could be adjudged guilty and imprisoned for years
on the strength of the same evidence as would suffice in a civil
case."
24 N.E.2d at 205, 247 N.E.2d at 259.
The requirement of proof beyond a reasonable doubt has this
vital role in our criminal procedure for cogent reasons. The
accused, during a criminal prosecution, has at stake interests of
immense importance, both because of the possibility that he may
lose his liberty upon conviction and because of the certainty that
he would be stigmatized by the conviction. Accordingly, a
society
Page 397 U. S. 364
that values the good name and freedom of every individual should
not condemn a man for commission of a crime when there is
reasonable doubt about his guilt. As we said in
Speiser v.
Randall, supra, at
357 U. S.
525-526:
"There is always, in litigation, a margin of error, representing
error in factfinding, which both parties must take into account.
Where one party has at stake an interest of transcending value --
as a criminal defendant his liberty -- this margin of error is
reduced as to him by the process of placing on the other party the
burden of . . . persuading the factfinder at the conclusion of the
trial of his guilt beyond a reasonable doubt. Due process commands
that no man shall lose his liberty unless the Government has borne
the burden of . . . convincing the factfinder of his guilt."
To this end, the reasonable doubt standard is indispensable, for
it "impresses on the trier of fact the necessity of reaching a
subjective state of certitude of the facts in issue." Dorsen &
Rezneck,
In Re Gault and the Future of Juvenile Law, 1
Family Law Quarterly, No. 4, pp. 1, 26 (1967).
Moreover, use of the reasonable doubt standard is indispensable
to command the respect and confidence of the community in
applications of the criminal law. It is critical that the moral
force of the criminal law not be diluted by a standard of proof
that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every
individual going about his ordinary affairs have confidence that
his government cannot adjudge him guilty of a criminal offense
without convincing a proper factfinder of his guilt with utmost
certainty.
Lest there remain any doubt about the constitutional stature of
the reasonable doubt standard, we explicitly hold that the Due
Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.
Page 397 U. S. 365
II
We turn to the question whether juveniles, like adults, are
constitutionally entitled to proof beyond a reasonable doubt when
they are charged with violation of a criminal law. The same
considerations that demand extreme caution in factfinding to
protect the innocent adult apply as well to the innocent child. We
do not find convincing the contrary arguments of the New York Court
of Appeals.
Gault rendered untenable much of the reasoning
relied upon by that court to sustain the constitutionality of §
744(b). The Court of Appeals indicated that a delinquency
adjudication
"is not a 'conviction' (§ 781); that it affects no right or
privilege, including the right to hold public office or to obtain a
license (§ 782), and a cloak of protective confidentiality is
thrown around all the proceedings (§§ 783-784)."
24 N.Y.2d at 200, 247 N.E.2d at 255-256. The court said
further:
"The delinquency status is not made a crime, and the proceedings
are not criminal. There is, hence, no deprivation of due process in
the statutory provision [challenged by appellant]. . . ."
24 N.Y.2d at 203, 247 N.E.2d at 257. In effect the Court of
Appeals distinguished the proceedings in question here from a
criminal prosecution by use of what
Gault called the
"
civil' label of convenience which has been attached to
juvenile proceedings." 387 U.S. at 387 U. S. 50. But
Gault expressly rejected that distinction as a reason for
holding the Due Process Clause inapplicable to a juvenile
proceeding. 387 U.S. at 387 U. S. 50-51.
The Court of Appeals also attempted to justify the preponderance
standard on the related ground that juvenile proceedings are
designed "not to punish, but to save the child." 24 N.Y.2d at 17,
247 N.E.2d at 254. Again, however, Gault expressly
rejected this justification. 387 U.S. at 387 U. S. 27. We
made clear in that decision that civil labels and good
Page 397 U. S. 366
intentions do not themselves obviate the need for criminal due
process safeguards in juvenile courts, for
"[a] proceeding where the issue is whether the child will be
found to be 'delinquent' and subjected to the loss of his liberty
for years is comparable in seriousness to a felony
prosecution."
Id. at
387 U. S. 36.
Nor do we perceive any merit in the argument that to afford
juveniles the protection of proof beyond a reasonable doubt would
risk destruction of beneficial aspects of the juvenile process.
[
Footnote 4] Use of the
reasonable doubt standard during the adjudicatory hearing will not
disturb New York's policies that a finding that a child has
violated a criminal law does not constitute a criminal conviction,
that such a finding does not deprive the child of his civil rights,
and that juvenile proceedings are confidential. Nor will there be
any effect on the informality, flexibility, or speed of the hearing
at which the factfinding takes place. And the opportunity during
the post-adjudicatory or dispositional hearing for a wide-ranging
review of the child's social history and for his individualized
treatment will remain unimpaired. Similarly, there will be no
effect on the procedures
Page 397 U. S. 367
distinctive to juvenile proceedings that are employed prior to
the adjudicatory hearing.
The Court of Appeals observed that
"a child's best interest is not necessarily, or even probably,
promoted if he wins in the particular inquiry which may bring him
to the juvenile court."
24 N.Y.2d at 199, 247 N.E.2d at 255. It is true, of course, that
the juvenile may be engaging in a general course of conduct
inimical to his welfare that calls for judicial intervention. But
that intervention cannot take the form of subjecting the child to
the stigma of a finding that he violated a criminal law [
Footnote 5] and to the possibility of
institutional confinement on proof insufficient to convict him were
he an adult.
We conclude, as we concluded regarding the essential due process
safeguards applied in
Gault, that the observance of the
standard of proof beyond a reasonable doubt "will not compel the
States to abandon or displace any of the substantive benefits of
the juvenile process."
Gault, supra, at
387 U. S. 21.
Finally, we reject the Court of Appeals' suggestion that there
is, in any event, only a "tenuous difference" between the
reasonable doubt and preponderance standards. The suggestion is
singularly unpersuasive. In this very case, the trial judge's
ability to distinguish between the two standards enabled him to
make a finding of guilt that he conceded he might not have made
under the standard of proof beyond a reasonable doubt. Indeed, the
trial judge's action evidences the accuracy of the observation of
commentators that
"the preponderance test is susceptible to the
misinterpretation
Page 397 U. S. 368
that it calls on the trier of fact merely to perform an abstract
weighing of the evidence in order to determine which side has
produced the greater quantum, without regard to its effect in
convincing his mind of the truth of the proposition asserted."
Dorsen & Rezneck,
supra, at 26-27. [
Footnote 6]
III
In sum, the constitutional safeguard of proof beyond a
reasonable doubt is as much required during the adjudicatory stage
of a delinquency proceeding as are those constitutional safeguards
applied in
Gault -- notice of charges, right to counsel,
the rights of confrontation and examination, and the privilege
against self-incrimination. We therefore hold, in agreement with
Chief Judge Fuld in dissent in the Court of Appeals,
"that, where a 12-year-old child is charged with an act of
stealing which renders him liable to confinement for as long as six
years, then, as a matter of due process . . . the case against him
must be proved beyond a reasonable doubt."
24 N.Y.2d at 207, 247 N.E.2d at 260.
Reversed.
[
Footnote 1]
Thus, we do not see how it can be said in dissent that this
opinion
"rests entirely on the assumption that all juvenile proceedings
are 'criminal prosecutions,' hence subject to constitutional
limitations."
As in
Gault,
"we are not here concerned with . . . the pre-judicial stages of
the juvenile process, nor do we direct our attention to the
post-adjudicative or dispositional process."
387 U.S. at
387 U. S. 13. In
New York, the adjudicatory stage of a delinquency proceeding is
clearly distinct from both the preliminary phase of the juvenile
process and from its dispositional stage.
See N.Y.Family
Court Act §§ 731-749. Similarly, we intimate no view concerning the
constitutionality of the New York procedures governing children "in
need of supervision."
See id. at §§ 711-712, 742-745. Nor
do we consider whether there are other "essentials of due process
and fair treatment" required during the adjudicatory hearing of a
delinquency proceeding. Finally, we have no occasion to consider
appellant's argument that § 744(b) is a violation of the Equal
Protection Clause, as well as a denial of due process.
[
Footnote 2]
The ruling appears in the following portion of the hearing
transcript:
"Counsel: Your Honor is making a finding by the preponderance of
the evidence."
"Court: Well, it convinces me."
"Counsel: It's not beyond a reasonable doubt, Your Honor."
"Court: That is true. . . . Our statute says a preponderance,
and a preponderance it is."
[
Footnote 3]
Accord, e.g., In re Dennis M., 70 Cal. 2d
444, 450 P.2d 298 (1969);
In re Ellis, 253
A.2d 789 (D.C.Ct.App. 1969);
State v. Arenas, 253 Ore.
215,
453 P.2d
915 (1969);
State v. Santana, 444 S.W.2d 614
(Texas 1969).
Contra, United States v. Costanzo, 395 F.2d
441 (C.A.4th Cir.1968);
In re Urbasec, 38 Ill. 2d
535, 232 N. F.2d 716 (1967);
Jones v. Commonwealth,
185 Va. 335, 38 S.E.2d 444 (1946); N.D.Cent.Code § 27-202n(2)
(Supp. 1969); Colo.Rev.Stat.Ann. § 22-3-6(1) (1967); Md.Ann.Code,
Art. 26, § 70-18(a) (Supp. 1969); N.J.Ct.Rule 6:9(1)(f) (1967),
Wash.Sup.Ct., Juv.Ct.Rule § 4.4(b) (1969);
cf. In re
Agler, 19 Ohio St.2d 70, 249 N.E.2d 808 (1969).
Legislative adoption of the reasonable doubt standard has been
urged by the National Conference of Commissioners on Uniform State
Laws and by the Children's Bureau of the Department of Health,
Education, and Welfare's Social and Rehabilitation Service.
See Uniform Juvenile Court Act § 29(b) (1968); Children's
Bureau, Social and Rehabilitation Service, U.S. Department of
Health, Education, and Welfare, Legislative Guide for Drafting
Family and Juvenile Court Acts § 32(c) (1969).
Cf. the
proposal of the National Council on Crime and Delinquency that a
"clear and convincing" standard be adopted. Model Rules for
Juvenile Courts, Rule 26, p. 57 (1969).
See generally
Cohen, The Standard of Proof in Juvenile Proceedings:
Gault Beyond a Reasonable Doubt, 68 Mich.L.Rev. 567
(1970).
[
Footnote 4]
Appellee, New York City, apparently concedes as much in its
Brief, page 8, where it states:
"A determination that the New York law unconstitutionally denies
due process because it does not provide for use of the reasonable
doubt standard probably would not have a serious impact if all that
resulted would be a change in the quantum of proof."
And Dorsen & Rezneck,
supra, at 27, have
observed:
"[T]he reasonable doubt test is superior to all others in
protecting against an unjust adjudication of guilt, and that is as
much a concern of the juvenile court as of the criminal court. It
is difficult to see how the distinctive objectives of the juvenile
court give rise to a legitimate institutional interest in finding a
juvenile to have committed a violation of the criminal law on less
evidence than if he were an adult."
[
Footnote 5]
The more comprehensive and effective the procedures used to
prevent public disclosure of the finding, the less the danger of
stigma. As we indicated in
Gault, however, often, the
"claim of secrecy . . . is more rhetoric than reality." 387 U.S. at
387 U. S. 24.
[
Footnote 6]
Compare this Court's rejection of the preponderance
standard in deportation proceedings, where we ruled that the
Government must support its allegations with "clear, unequivocal,
and convincing evidence."
Woodby v. Immigration and
Naturalization Service, 385 U. S. 276,
385 U. S. 285
(1966). Although we ruled in
Woodby that deportation is
not tantamount to a criminal conviction, we found that, since it
could lead to "drastic deprivations," it is impermissible for a
person to be "banished from this country upon no higher degree of
proof than applies in a negligence case."
Ibid.
MR. JUSTICE HARLAN, concurring.
No one, I daresay, would contend that state juvenile court
trials are subject to no federal constitutional limitations.
Differences have existed, however, among the members of this Court
as to what constitutional protections do apply.
See In re
Gault, 387 U. S. 1
(1967).
Page 397 U. S. 369
The present case draws in question the validity of a New York
statute that permits a determination of juvenile delinquency,
founded on a charge of criminal conduct, to be made on a standard
of proof that is less rigorous than that which would obtain had the
accused been tried for the same conduct in an ordinary criminal
case. While I am in full agreement that this statutory provision
offends the requirement of fundamental fairness embodied in the Due
Process Clause of the Fourteenth Amendment, I am constrained to add
something to what my Brother BRENNAN has written for the Court,
lest the true nature of the constitutional problem presented become
obscured or the impact on state juvenile court systems of what the
Court holds today be exaggerated.
I
Professor Wigmore, in discussing the various attempts by courts
to define how convinced one must be to be convinced beyond a
reasonable doubt, wryly observed:
"The truth is that no one has yet invented or discovered a mode
of measurement for the intensity of human belief. Hence, there can
be yet no successful method of communicating intelligibly . . . a
sound method of self-analysis for one's belief,"
9 J. Wigmore, Evidence 325 (3d ed.1940). [
Footnote 2/1]
Notwithstanding Professor Wigmore's skepticism, we have before
us a case where the choice of the standard of proof has made a
difference: the juvenile court judge below forthrightly
acknowledged that he believed by a preponderance of the evidence,
but was not convinced beyond a reasonable doubt, that appellant
stole $112 from the complainant's pocketbook. Moreover, even though
the labels used for alternative standards of proof are
Page 397 U. S. 370
vague, and not a very sure guide to decisionmaking, the choice
of the standard for a particular variety of adjudication does, I
think, reflect a very fundamental assessment of the comparative
social costs of erroneous factual determinations. [
Footnote 2/2]
To explain why I think this so, I begin by stating two
propositions, neither of which I believe can be fairly disputed.
First, in a judicial proceeding in which there is a dispute about
the facts of some earlier event, the factfinder cannot acquire
unassailably accurate knowledge of what happened. Instead, all the
factfinder can acquire is a belief of what
probably
happened. The intensity of this belief -- the degree to which a
factfinder is convinced that a given act actually occurred -- can,
of course, vary. In this regard, a standard of proof represents an
attempt to instruct the factfinder concerning the degree of
confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication. Although
the phrases "preponderance of the evidence" and "proof beyond a
reasonable doubt" are quantitatively imprecise, they do communicate
to the finder of fact different notions concerning the degree of
confidence he is expected to have in the correctness of his factual
conclusions.
A second proposition, which is really nothing more than a
corollary of the first, is that the trier of fact will sometimes,
despite his best efforts, be wrong in his factual conclusions. In a
lawsuit between two parties, a factual error can make a difference
in one of two ways. First, it can result in a judgment in favor of
the plaintiff when the true facts warrant a judgment for the
defendant. The analogue in a criminal case would be the
conviction
Page 397 U. S. 371
of an innocent man. On the other hand, an erroneous factual
determination can result in a judgment for the defendant when the
true facts justify a judgment in plaintiff's favor. The criminal
analogue would be the acquittal of a guilty man.
The standard of proof influences the relative frequency of these
two types of erroneous outcomes. If, for example, the standard of
proof for a criminal trial were a preponderance of the evidence,
rather than proof beyond a reasonable doubt, there would be a
smaller risk of factual errors that result in freeing guilty
persons, but a far greater risk of factual errors that result in
convicting the innocent. Because the standard of proof affects the
comparative frequency of these two types of erroneous outcomes, the
choice of the standard to be applied in a particular kind of
litigation should, in a rational world, reflect an assessment of
the comparative social disutility of each.
When one makes such an assessment, the reason for different
standards of proof in civil, as opposed to criminal, litigation
becomes apparent. In a civil suit between two private parties for
money damages, for example, we view it as no more serious in
general for there to be an erroneous verdict in the defendant's
favor than for there to be an erroneous verdict in the plaintiff's
favor. A preponderance of the evidence standard therefore seems
peculiarly appropriate, for, as explained most sensibly, [
Footnote 2/3] it simply requires the trier
of fact
"to believe that the existence of a fact is more probable than
its nonexistence before [he] may find in favor of the party
Page 397 U. S. 372
who has the burden to persuade the [judge] of the fact's
existence. [
Footnote 2/4]"
In a criminal case, on the other hand, we do not view the social
disutility of convicting an innocent man as equivalent to the
disutility of acquitting someone who is guilty. As MR. JUSTICE
BRENNAN wrote for the Court in
Speiser v. Randall,
357 U. S. 513,
357 U. S.
525-526 (1958):
"There is always in litigation a margin of error, representing
error in factfinding, which both parties must take into account.
Where one party has at stake an interest of transcending value --
as a criminal defendant his liberty -- this margin of error is
reduced as to him by the process of placing on the other party the
burden . . . of persuading the factfinder at the conclusion of the
trial of his guilt beyond a reasonable doubt."
In this context, I view the requirement of proof beyond a
reasonable doubt in a criminal case as bottomed on a fundamental
value determination of our society that it is far worse to convict
an innocent man than to let a guilty man go free. It is only
because of the nearly complete and longstanding acceptance of the
reasonable doubt standard by the States in criminal trials that the
Court has not, before today, had to hold explicitly that due
process, as an expression of fundamental procedural fairness,
[
Footnote 2/5] requires a more
stringent standard for criminal trials than for ordinary civil
litigation.
Page 397 U. S. 373
II
When one assesses the consequences of an erroneous factual
determination in a juvenile delinquency proceeding in which a youth
is accused of a crime, I think it must be concluded that, while the
consequences are
Page 397 U. S. 374
not identical to those in a criminal case, the differences will
not support a distinction in the standard of proof. First, and of
paramount importance, a factual error here, as in a criminal case,
exposes the accused to a complete loss of his personal liberty
through a state-imposed confinement away from his home, family, and
friends. And second, a delinquency determination, to some extent at
least, stigmatizes a youth in that it is, by definition, bottomed
on a finding that the accused committed a crime. [
Footnote 2/6] Although there are no doubt costs to
society (and possibly even to the youth himself) in letting a
guilty youth go free, I think here, as in a criminal case, it is
far worse to declare an innocent youth a delinquent. I therefore
agree that a juvenile court judge should be no less convinced of
the factual conclusion that the accused committed the criminal act
with which he is charged than would be required in a criminal
trial.
III
I wish to emphasize, as I did in my separate opinion in
Gault, 387 U. S. 1,
387 U. S. 65,
that there is no automatic congruence
Page 397 U. S. 375
between the procedural requirements imposed by due process in a
criminal case and those imposed by due process in juvenile cases.
[
Footnote 2/7] It is of great
importance, in my view, that procedural strictures not be
constitutionally imposed that jeopardize "the essential elements of
the State's purpose" in creating juvenile courts,
id. at
387 U. S. 72. In
this regard, I think it worth emphasizing that the requirement of
proof beyond a reasonable doubt that a juvenile committed a
criminal act before he is found to be a delinquent does not (1)
interfere with the worthy goal of rehabilitating the juvenile, (2)
make any significant difference in the extent to which a youth is
stigmatized as a "criminal" because he has been found to be a
delinquent, or (3) burden the juvenile courts with a procedural
requirement that will make juvenile adjudications significantly
more time consuming, or rigid. Today's decision simply requires a
juvenile court judge to be more confident in his belief that the
youth did the act with which he has been charged.
With these observations, I join the Court's opinion, subject
only to the constitutional reservations expressed in my opinion in
Gault.
[
Footnote 2/1]
See also Paulsen, Juvenile Courts and the Legacy of
'67, 43 Ind.L.J. 527, 551-552 (1968).
[
Footnote 2/2]
For an interesting analysis of standards of proof
see
Kaplan, Decision Theory and the Factfinding Process, 20 Stan.L.Rev.
106, 1071-1077 (1968).
[
Footnote 2/3]
The preponderance test has been criticized, justifiably, in my
view, when it is read as asking the trier of fact to weigh in some
objective sense the quantity of evidence submitted by each side,
rather than asking him to decide what he believes most probably
happened.
See J. Maguire, Evidence, Common Sense and
Common Law 180 (147).
[
Footnote 2/4]
F. James, Civil Procedure 25251 (1965);
see E. Morgan,
Some Problems of Proof Under the Anglo-American System of
Litigation 85 (1956).
[
Footnote 2/5]
In dissent, my Brother BLACK again argues that, apart from the
specific prohibitions of the first eight amendments, any procedure
spelled out by a legislature -- no matter how unfair -- passes
constitutional muster under the Due Process Clause. He bottoms his
conclusion on history that he claims demonstrates (1) that due
process means "law of the land"; (2) that any legislative
enactment,
ipso facto, is part of the law of the land, and
(3) that the Fourteenth Amendment incorporates the prohibitions of
the Bill of Rights and applies them to the States. I cannot refrain
from expressing my continued bafflement at my Brother BLACK's
insistence that due process, whether under the Fourteenth Amendment
or the Fifth Amendment, does not embody a concept of fundamental
fairness as part of our scheme of constitutionally ordered liberty.
His thesis flies in the face of a course of judicial history
reflected in an unbroken line of opinions that have interpreted due
process to impose restraints on the procedures government may adopt
in its dealing with its citizens,
see, e.g., the cases
cited in my dissenting opinions in
Poe v. Ullman,
367 U. S. 497,
367 U. S. 522,
367 U. S.
539-545 (1961);
Duncan v. Louisiana,
391 U. S. 145,
391 U. S. 171
(1968); as well as the uncontroverted scholarly research
(notwithstanding H. Flack, The Adoption of the Fourteenth Amendment
(1908)), respecting the intendment of the Due Process Clause of the
Fourteenth Amendment,
see Fairman, Does the Fourteenth
Amendment Incorporate the Bill of Rights? The Original
Understanding, 2 Stan.L.Rev. 5 (1949). Indeed, with all respect,
the very case cited in Brother BLACK's dissent as establishing that
"due process of law" means "law of the land" rejected the argument
that any statute, by the mere process of enactment, met the
requirements of the Due Process Clause.
In
Murray's Lessee v. Hoboken Land & Improv. Co.,
18 How. 272 (1856), an issue was whether a "distress warrant"
issued by the Solicitor of the Treasury under an Act of Congress to
collect money due for taxes offended the Due Process Clause.
Justice Curtis wrote:
"That the warrant now in question is legal process, is not
denied. It was issued in conformity with an act of Congress. But is
it 'due process of law?' The constitution contains no description
of those processes which it was intended to allow or forbid. It
does not even declare what principles are to be applied to
ascertain whether it be due process.
It is manifest that it was
not left to the legislative power to enact any process which might
be devised. The article is a restraint on the legislative, as well
as on the executive and judicial, powers of the government, and
cannot be so construed as to leave congress free to make any
process 'due process of law' by its mere will."
Id. at
59 U. S. 276.
(Emphasis supplied.)
[
Footnote 2/6]
The New York statute was amended to distinguish between a
"juvenile delinquent,"
i.e., a youth "who does any act
which, if done by an adult, would constitute a crime," N.Y.Family
Court Act § 712 (1963), and a "[p]erson in need of supervision"
[PINS] who is a person
"who is an habitual truant or who is incorrigible, ungovernable
or habitually disobedient and beyond the lawful control of parent
or other lawful authority."
The PINS category was established in order to avoid the stigma
of finding someone to be a "juvenile delinquent" unless he
committed a criminal act. The Legislative Committee report
stated:
"'Juvenile delinquent' is now a term of disapproval. The judges
of the Children's Court and the Domestic Relations Court of course
are aware of this, and also aware that government officials and
private employers often learn of an adjudication of
delinquency."
N.Y.Jt.Legislative Committee on Court Reorganization, The Family
Court Act, pt. 2, p. 7 (1962). Moreover, the powers of the police
and courts differ in these two categories of cases.
See
id. t 7-9. Thus, in a PINS-type case, the consequences of an
erroneous factual determination are by no means identical to those
involved here.
[
Footnote 2/7]
In
Gault, for example, I agreed with the majority that
due process required (1) adequate notice of the "nature and terms"
of the proceedings; (2) notice of the right. to retain counsel, and
an obligation on the State to provide counsel for indigents "in
cases in which the child may be confined", and (3) a written record
"adequate to permit effective review." 387 U.S. at
387 U. S. 72.
Unlike the majority, however, I thought it unnecessary at the time
of
Gault to impose the additional requirements of the
privilege against self-incrimination, confrontation, and
cross-examination.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE STEWART joins,
dissenting.
The Court's opinion today rests entirely on the assumption that
all juvenile proceedings are "criminal prosecutions," hence subject
to constitutional limitations. This derives from earlier holdings,
which, like today's
Page 397 U. S. 376
holding, were steps eroding the differences between juvenile
courts and traditional criminal courts. The original concept of the
juvenile court system was to provide a benevolent and less formal
means than criminal courts could provide for dealing with the
special, and often sensitive, problems of youthful offenders. Since
I see no constitutional requirement of due process sufficient to
overcome the legislative judgment of the States in this area, I
dissent from further strait-jacketing of an already overly
restricted system. What the juvenile court system needs is not
more, but less, of the trappings of legal procedure and judicial
formalism; the juvenile court system requires breathing room and
flexibility in order to survive, if it can survive, the repeated
assaults from this Court.
Much of the judicial attitude manifested by the Court's opinion
today and earlier holdings in this field is really a protest
against inadequate juvenile court staffs and facilities; we "burn
down the stable to get rid of the mice." The lack of support and
the distressing growth of juvenile crime have combined to make for
a literal breakdown in many, if not most, juvenile courts.
Constitutional problems were not seen while those courts functioned
in an atmosphere where juvenile judges were not crushed with an
avalanche of cases.
My hope is that today's decision will not spell the end of a
generously conceived program of compassionate treatment intended to
mitigate the rigors and trauma of exposing youthful offenders to a
traditional criminal court; each step we take turns the clock back
to the pre-juvenile court era. I cannot regard it as a
manifestation of progress to transform juvenile courts into
criminal courts, which is what we are well on the way to
accomplishing. We can only hope the legislative response will not
reflect our own by having these courts abolished.
Page 397 U. S. 377
MR. JUSTICE BLACK, dissenting.
The majority states that
"many opinions of this Court indicate that it has long been
assumed that proof of a criminal charge beyond a reasonable doubt
is constitutionally required."
Ante at
397 U. S. 362.
I have joined in some of those opinions, as well as the dissenting
opinion of Mr. Justice Frankfurter in
Leland v. Oregon,
343 U. S. 790,
343 U. S. 80
(1952). The Court has never clearly held, however, that proof
beyond a reasonable doubt is either expressly or impliedly
commanded by any provision of the Constitution. The Bill of Rights,
which, in my view, is made fully applicable to the States by the
Fourteenth Amendment,
see Adamson v. California,
332 U. S. 46,
332 U. S. 71-75
(147) (dissenting opinion), does, by express language, provide for,
among other things, a right to counsel in criminal trials, a right
to indictment, and the right of a defendant to be informed of the
nature of the charges against him. [
Footnote 3/1] And, in two places, the Constitution
provides for trial by jury, [
Footnote
3/2] but nowhere in that document is there any statement that
conviction of crime requires proof of guilt beyond a reasonable
doubt. The Constitution thus goes into some detail to spell out
what kind of trial a defendant charged with crime should have, and
I believe the Court has no power to add to or subtract from the
procedures set forth by the Founders. I realize that it is far
easier to substitute individual judges' ideas of "fairness" for the
fairness prescribed by the Constitution, but I shall not at any
time surrender my belief that that document itself should be our
guide, not our own concept of what is fair, decent, and right. That
this old "shock-the-conscience" test is what the Court is relying
on, rather than the words of the Constitution,
Page 397 U. S. 378
is clearly enough revealed by the reference of the majority to
"fair treatment" and to the statement by the dissenting judges in
the New York Court of Appeals that failure to require proof beyond
a reasonable doubt amounts to a "lack of fundamental fairness."
Ante at
397 U. S. 359,
397 U. S. 363.
As I have said time and time again, I prefer to put my faith in the
words of the written Constitution itself, rather than to rely on
the shifting, day-to-day standards of fairness of individual
judges.
I
Our Constitution provides that no person shall be "deprived of
life, liberty, or property, without due process of law." [
Footnote 3/3] The four words -- due process
of law -- have been the center of substantial legal debate over the
years.
See Chambers v. Florida, 309 U.
S. 227,
309 U. S.
235-236, and n. 8 (1940). Some might think that the
words themselves are vague. But any possible ambiguity disappears
when the phrase is viewed in the light of history and the accepted
meaning of those words prior to and at the time our Constitution
was written.
"Due process of law" was originally used as a shorthand
expression for governmental proceedings according to the "law of
the land" as it existed at the time of those proceedings. Both
phrases are derived from the laws of England, and have
traditionally been regarded as meaning the same thing. The Magna
Carta provided that:
"No Freeman shall be taken, or imprisoned, or be disseised of
his Freehold, or Liberties, or free Customs, or be outlawed, or
exiled, or any otherwise
Page 397 U. S. 379
destroyed; nor will we not pass upon him, nor condemn him, but
by lawful Judgment of his Peers, or by the Law of the Land.
[
Footnote 3/4]"
Later English statutes reinforced and confirmed these basic
freedoms. In 1350, a statute declared that
"it is contained in the Great Charter of the Franchises of
England that none shall be imprisoned nor put out of his Freehold,
nor of his Franchises nor free Custom, unless it be by the Law of
the Land. . . . [
Footnote 3/5]"
Four years later, another statute provided
"[t]hat no Man, of what Estate or Condition that he be, shall be
put out of Land or Tenement, nor taken nor imprisoned, nor
disinherited, nor put to Death without being brought in Answer by
due Process of the Law. [
Footnote
3/6]"
And, in 1363, it was provided "that no man be taken or
imprisoned, nor put out of his freehold, without process of law."
[
Footnote 3/7]
Drawing on these and other sources, Lord Coke, in 1642,
concluded that "due process of law" was synonymous with the phrase
"by law of the land." [
Footnote
3/8] One of the earliest cases in this Court to involve the
interpretation of the Due Process Clause of the Fifth Amendment
declared that
"[t]he words, 'due process of law,' were undoubtedly intended to
convey the same meaning as the words 'by the law of the land' in
Magna Charta."
Murray's Lessee v. Hoboken
Land & Improv. Co., 18 How. 272,
59 U. S. 276
(1856).
While it is thus unmistakably clear that "due process of law"
means according to "the law of the land," this Court has not
consistently defined what "the law of the
Page 397 U. S. 380
land" means, and, in my view, members of this Court frequently
continue to misconceive the correct interpretation of that phrase.
In
Murray's Lessee, supra, Mr. Justice Curtis, speaking
for the Court, stated:
"The constitution contains no description of those processes
which it was intended to allow or forbid. It does not even declare
what principles are to be applied to ascertain whether it be due
process. It is manifest that it was not left to the legislative
power to enact any process which might be devised. The article is a
restraint on the legislative, as well as on the executive and
judicial, powers of the government, and cannot be so construed as
to leave congress free to make any process 'due process of law' by
its mere will. To what principles, then, are we to resort to
ascertain whether this process, enacted by congress, is due
process? To this, the answer must be two-fold. We must examine the
constitution itself to see whether this process be in conflict with
any of its provisions. If not found to be so, we must look to those
settled usages and modes of proceeding existing in the common and
statute law of England before the emigration of our ancestors, and
which are shown not to have been unsuited to their civil and
political condition by having been acted on by them after the
settlement of this country."
Id. at
59 U. S.
276-277. [
Footnote 3/9]
Later, in
Twining v. New Jersey, 211 U. S.
78 (1908), Mr. Justice Moody, again speaking for the
Court, reaffirmed that "due process of law" meant "by law of
the
Page 397 U. S. 381
land," but he went on to modify Mr. Justice Curtis' definition
of the phrase. He stated:
"First. What is due process of law may be ascertained by an
examination of those settled usages and modes of proceedings
existing in the common and statute law of England before the
emigration of our ancestors, and shown not to have been unsuited to
their civil and political condition by having been acted on by them
after the settlement of this country. . . ."
"Second. It does not follow, however, that a procedure settled
in English law at the time of the emigration, and brought to this
country and practiced by our ancestors, is an essential element of
due process of law. If that were so, the procedure of the first
half of the seventeenth century would be fastened upon the American
jurisprudence like a straight-jacket, only to be unloosed by
constitutional amendment. . . ."
"Third. But, consistently with the requirements of due process,
no change in ancient procedure can be made which disregards those
fundamental principles, to be ascertained from time to time by
judicial action, which have relation to process of law and protect
the citizen in his private right, and guard him against the
arbitrary action of government."
Id. at
211 U. S.
100-101. [
Footnote
3/10] In those words is found the kernel of the "natural law
due process" notion by which this Court frees itself from the
limits of a written Constitution and sets itself loose to declare
any law unconstitutional that "shocks its conscience," deprives a
person of "fundamental fairness," or violates the principles
"implicit in the concept of
Page 397 U. S. 382
ordered liberty."
See Rochin v. California,
342 U. S. 165,
342 U. S. 172
(1952);
Palko v. Connecticut, 302 U.
S. 319,
302 U. S. 325
(1937). While this approach has been frequently used in deciding
so-called "procedural" questions, it has evolved into a device as
easily invoked to declare invalid "substantive" laws that
sufficiently shock the consciences of at least five members of this
Court.
See, e.g., Lochner v. New York, 198 U. S.
45 (1905);
Coppage v. Kansas, 236 U. S.
1 (1915);
Burns Baking Co. v. Bryan,
264 U. S. 504
(1924);
Griswold v. Connecticut, 381 U.
S. 479 (1965). I have set forth at length in prior
opinions my own views that this concept is completely at odds with
the basic principle that our Government is one of limited powers,
and that such an arrogation of unlimited authority by the judiciary
cannot be supported by the language or the history of any provision
of the Constitution.
See, e.g., Adamson v. California,
332 U. S. 46,
332 U. S. 68
(1947) (dissenting opinion);
Griswold v. Connecticut,
supra, at
381 U. S. 507
(1965) (dissenting opinion).
In my view, both Mr. Justice Curtis and Mr. Justice Moody gave
"due process of law" an unjustifiably broad interpretation. For me,
the only correct meaning of that phrase is that our Government must
proceed according to the "law of the land" -- that is, according to
written constitutional and statutory provisions as interpreted by
court decisions. The Due Process Clause, in both the Fifth and
Fourteenth Amendments, in and of itself, does not add to those
provisions, but, in effect, states that our governments are
governments of law, and constitutionally bound to act only
according to law. [
Footnote 3/11]
To some, that view may seem a degrading and niggardly view of what
is undoubtedly a fundamental part of our basic freedoms.
Page 397 U. S. 383
But that criticism fails to note the historical importance of
our Constitution and the virtual revolution in the history of the
government of nations that was achieved by forming a government
that, from the beginning, had its limits of power set forth in one
written document that
Page 397 U. S. 384
also made it abundantly clear that all governmental actions
affecting life, liberty, and property were to be according to
law.
For years, our ancestors had struggled in an attempt to bring
England under one written constitution, consolidating in one place
all the threads of the fundamental law of that nation. They almost
succeeded in that attempt, [
Footnote
3/12] but it was not until after the American Revolution that
men were able to achieve that long-sought goal. But the struggle
had not been simply to put all the constitutional law in one
document, it was also to make certain that men would be governed by
law, not the arbitrary fiat of the man or men in power. Our
ancestors' ancestors had known the tyranny of the kings and the
rule of man and it was, in my view, in order to insure against such
actions that the Founders wrote into our own Magna Carta the
fundamental principle of the rule of law, as expressed in the
historically meaningful phrase "due process of law." The many
decisions of this Court that have found in that phrase a blanket
authority to govern the country according to the views of at least
five members of this institution have ignored the essential meaning
of the very words they invoke. When this Court assumes for itself
the power to declare any law -- state or federal --
unconstitutional because it offends the majority's own views of
what is fundamental and decent in our society, our Nation ceases to
be governed according to the "law of the land," and instead becomes
one governed ultimately by the "law of the judges."
It can be, and has been, argued that, when this Court strikes
down a legislative act because it offends the idea of "fundamental
fairness," it furthers the basic thrust of our Bill of Rights by
protecting individual freedom.
Page 397 U. S. 385
But that argument ignores the effect of such decisions on
perhaps the most fundamental individual liberty of our people --
the right of each man to participate in the self-government of his
society. Our Federal Government was set up as one of limited
powers, but it was also given broad power to do all that was
"necessary and proper" to carry out its basic purpose of governing
the Nation, so long as those powers were not exercised contrary to
the limitations set forth in the Constitution. And the States, to
the extent they are not restrained by the provisions in that
document, were to be left free to govern themselves in accordance
with their own views of fairness and decency. Any legislature
presumably passes a law because it thinks the end result will help
more than hinder, and will thus further the liberty of the society
as a whole. The people, through their elected representatives, may,
of course, be wrong in making those determinations, but the right
of self-government that our Constitution preserves is just as
important as any of the specific individual freedoms preserved in
the Bill of Rights. The liberty of government by the people, in my
opinion, should never be denied by this Court except when the
decision of the people, as stated in laws passed by their chosen
representatives, conflicts with the express or necessarily implied
commands of our Constitution.
II
I admit a strong, persuasive argument can be made for a standard
of proof beyond a reasonable doubt in criminal cases -- and the
majority has made that argument well -- but it is not for me as a
judge to say for that reason that Congress or the States are
without constitutional power to establish another standard that the
Constitution does not otherwise forbid. It is quite true that proof
beyond a reasonable doubt has long been required in federal
criminal trials. It is also true that
Page 397 U. S. 386
this requirement is almost universally found in the governing
laws of the States. And as long as a particular jurisdiction
requires proof beyond a reasonable doubt, then the Due Process
Clause commands that every trial in that jurisdiction must adhere
to that standard.
See Turner v. United States,
396 U. S. 398,
396 U. S. 430
(1970) (BLACK, J., dissenting). But when, as here, a State, through
its duly constituted legislative branch, decides to apply a
different standard, then that standard, unless it is otherwise
unconstitutional, must be applied to insure that persons are
treated according to the "law of the land." The State of New York
has made such a decision, and, in my view, nothing in the Due
Process Clause invalidates it.
[
Footnote 3/1]
Amdts. V, VI, U.S. Constitution.
[
Footnote 3/2]
Art. III, § 2, cl. 3; Amdt. VI, U.S. Constitution.
[
Footnote 3/3]
The Fifth Amendment applies this limitation to the Federal
Government, and the Fourteenth Amendment imposes the same
restriction on the States.
[
Footnote 3/4]
9 Hen. 3, C. 29 (1225). A similar provision appeared in c. 39 of
the original issue signed by King John in 1215.
[
Footnote 3/5]
25 Edw.3, Stat. 5, c. IV.
[
Footnote 3/6]
28 Edw. 3, c. III.
[
Footnote 3/7]
37 Edw. 3, c. XVIII.
[
Footnote 3/8]
Coke's Institutes, Second Part., 50 (1st ed. 1642).
[
Footnote 3/9]
Cf. 11 U. S.
Hudson, 7 Cranch 32 (1812), in which the Court held that there
was no jurisdiction in federal courts to try criminal charges based
on the common law, and that all federal crimes must be based on a
statute of Congress.
[
Footnote 3/10]
Cf. the views of Mr. Justice Iredell in
Calder v. Bull,
3 Dall. 386,
3 U. S. 398
(1798).
[
Footnote 3/11]
It is not the Due Process Clause of the Fourteenth Amendment,
standing alone, that requires my conclusion that that Amendment was
intended to apply fully the protection of the Bill of Rights to
actions by the States. That conclusion follows from the language of
the entire first section of the Fourteenth Amendment, as
illuminated by the legislative history surrounding its adoption.
See Adamson v. California, supra, at
332 U. S. 71-75,
332 U. S.
92-123.
MR. JUSTICE HARLAN continues to insist that uncontroverted
scholarly research shows that the Fourteenth Amendment did not
incorporate the Bill of Rights as limitations on the States.
See Poe v. Ullman, 367 U. S. 497,
367 U. S. 540
(1961) (dissenting opinion);
Griswold v. Connecticut,
supra, at
381 U. S. 500
(concurring in judgment);
ante at
397 U. S.
372-373, n. 5. I cannot understand that conclusion. Mr.
Fairman, in the article repeatedly cited by MR. JUSTICE HARLAN,
surveys the legislative history and concludes that it is his
opinion that the amendment did not incorporate the Bill of Rights.
Mr. Flack, in at lest an equally "scholarly" writing, surveys
substantially the same documents relied upon by Mr. Fairman and
concludes that a prime objective of Congress in proposing the
adoption of the Fourteenth Amendment was "[t]o make the Bill of
Rights (the first eight Amendments) binding upon, or applicable to,
the States."
Compare H. Flack, The Adoption of the
Fourteenth Amendment 94 (1908),
with Fairman, Does the
Fourteenth Amendment Incorporate the Bill of Rights? The Original
Understanding, 2 Stan.L.Rev. 5 (1949). It is, of course,
significant that, since the adoption of the Fourteenth Amendment,
this Court has held almost all the provisions of the Bill of Rights
applicable to the States: the First Amendment,
e.g., Gitlow v.
New York, 268 U. S. 652
(1925),
Cantwell v. Connecticut, 310 U.
S. 296 (1940),
Edwards v. South Carolina,
372 U. S. 229
(1963); the Fourth Amendment,
Mapp v. Ohio, 367 U.
S. 643 (1961); the Fifth Amendment,
Chicago B. &
Q. R. Co. v. Chicago, 166 U. S. 226
(1897),
Malloy v. Hogan, 378 U. S. 1 (1964),
Benton v. Maryland, 395 U. S. 784
(1969); the Sixth Amendment,
Gideon v. Wainwright,
372 U. S. 335
(1963),
Pointer v. Texas, 380 U.
S. 400 (1965),
Klopfer v. North Carolina,
386 U. S. 213
(1967),
Duncan v. Louisiana, 391 U.
S. 145 (1968), and the Eighth Amendment,
Robinson v.
California, 370 U. S. 660
(1962). To me, this history indicates that, in the end, Mr. Flack's
thesis has fared much better than Mr. Fairman's "uncontroverted"
scholarship.
[
Footnote 3/12]
See J. Frank, The Levellers (1955).