Union National Bank of Little Rock v. Paxton Respondents' Brief in Opposition

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October 4, 1982

Union National Bank of Little Rock v. Paxton Respondents' Brief in Opposition preview

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  • Brief Collection, LDF Court Filings. In Re: Paul L. Gault Brief for Appellants, 1966. 2c2ce4eb-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e48341f5-27d2-4f5e-bb53-82714ed0c11c/in-re-paul-l-gault-brief-for-appellants. Accessed July 06, 2025.

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.#H|inmtT CÊ nrt nf tin' Inttefr Btvdt&
O ctober T erm , 1966 

No. 116

In the Matter of the Application 

—of—
P aul L. Gault and M arjorie Ga u lt , father and mother 

of Gerald F rancis G ault, a Minor.

ON APPEAL PROM T H E  SU PR EM E COURT OE T H E  STATE OF ARIZONA

BRIEF FOR APPELLANTS

N orman D orsen

New York University School of Law 
Washington Square 
New York, N. Y. 10003

M elvin  L . W u l f

156 Fifth Avenue 
New York, N. Y. 10010

A m elie  D. L ew is  
P. O. Box 370 
Sun City, Arizona 85351

Attorneys for Appellants

D a n iel  A . R ezneck  
C harles E. A res 
Gertrud M ainzer  
J ames J .  M urray 

Of Counsel



I N D E X

Opinions Below .............................................................  1

Jurisdiction ....................................................................  1

Statutes Involved ...........................................................  2

Question Presented .......................................................  3

Statement of the Case ..........................    4

Summary of Argument..................................................  9

A rgum ent

I. The historical background of procedural de­
ficiencies in Juvenile Courts............................  13

II. The Arizona juvenile proceedings failed to 
provide Gerald Gault with fundamental pro­
cedural protections that are required by the 
due process clause of the Fourteenth Amend­
ment ..................................................................  18
A. Notice of Charges and Hearing.................  29
B. The Bight to Counsel ................................ 34
C. Confrontation and Cross-examination ......  43

D. The Privilege Against Self-Incrimination 50
E. Right to Appellate Review and to a Tran­

script of the Proceedings ......................... 58

PAGE

C onclusion 63



11

PAGE

A ppen dix  :

Arizona Constitution, Article 6, Section 15 ..........  la
Arizona Criminal Code § 13-377 ............................  la

Juvenile Code of Arizona, §§ 8-201 to 8-239 ..........  la

T able of A utho rities

Cases:

Akers v. State, 114 Ind. App. 195, 51 N. E. 2d 91 (1943) 16
Application of Gault, 99 Ariz. 181, 407 P. 2d 760 (1965)

passim
Application of Johnson, 178 F. Supp. 155 (D. N. J.

1957) ......................................................................... 24,33
Application of Vigileos, 84 Ariz. 404, 300 P. 2d 116 

(1958) ...................................................................   53

Ballard v. State, 192 S. W. 2d 329 (Tex. Civ. App.
1946) ...........................................................................  46

Benson v. U. S., 332 F. 2d 288 (5th Cir. 1964) .............. 22
Black v. U. S., 355 F. 2d 104 (D. C. Cir. 1965) .......... 35, 39
Brewer v. Commonwealth, 283 S. W. 2d 702 (Ky. 1955) 24
Briggs v. U. S., 96 U. S. App. D. C. 392, 226 F. 2d 350

(1955) .........................................................................  53
Burrows v. State, 38 Ariz. 99, 297 Pac. 1029 (1931) .... 53

Carnley v. Cochran, 369 U. S. 506 (1962) .....................  43
Caruso v. Superior Court, 100 Ariz. 167, 412 P. 2d 463

(1966)...........................................................................  54
Chewning v. Cunningham, 368 U. S. 443 (1962) ........37-38
Cole v. Arkansas, 333 U. S. 196 (1948) ..................... 29,30
Counselman v. Hitchcock, 142 U. S. 547 (1892) ............  55



I l l

Dandy v. Wilson, 179 S. W. 2d 269 (Tex. Sup. Ct.

PAGE

1944) ......................................................................... 56,57
Draper v. Washington, 372 U. S. 487 (1963) .................  62

Ex parte Tahbel, 46 Cal. App. 755, 189 Pac. 804 (1920)
56, 57

Fay y . Noia, 372 IT. S. 391 (1963) ................................ 43
Florence v. Meyers, 9 Race Eel. L. R. 44 (M. D. Fla.

1964) ...............................................................   29
Flynn v. Superior Court, 414 P. 2d 438 (Ariz. Ct. App. 

1966) ...........................................................................  53

Gideon v. Wainwright, 372 U. S. 335 (1963) ...... 11,34,35,
36, 37

Green v. State, 123 Ind. App. 81, 108 N. E. 2d 647
(1952) .......................................................................... 46

Greene v. McElroy, 360 U. S. 474 (1959) ..................... 45,46
Griffin v. Hay, 10 Race Rel. L. R. I l l  (E. D. Ya. 1965) 29
Griffin v. Illinois, 351 U. S. 12 (1956) ...... ..................58, 62
Griffin v. State, 380 U. S. 609 (1965) ............................  51

Hamilton v. Alabama, 368 II. S. 52 (1961) .................  36
Harris v. Norris, 188 Ga. 610, 4 S. E. 2d 840 (1939) .... 60 
Hovey v. Elliot, 167 H. S. 409 (1897) ...........................  29

In Interest of T. W. P., 184 So. 2d 507 (Fla. Ct. of
App. 1966) ..................................................................  16

In re Alexander, 152 Cal. App. 2d 458, 313 P. 2d 182
(1957) .........................................................................  24

In re Bentley (Harry v. State), 246 Wis. 69, 16 N. W.
2d 390 (1944) 16



In re Contreras, 109 Cal. App. 2d 787, 241 P. 2d 631
(1952) ..........................................................................

In re Coyle, 122 Ind. App. 217, 101 N. E. 2d 192
(1951) ......................................................................... 33-

In re Creely, 70 Cal. App. 2d 186, 160 P. 2d 870 (1945)
In re Davis, 83 A. 2d 590 (Mun. Ct. Apps. D. C.

1951) ...........................................................................
In re Duncan, 107 N. E. 2d 256 (1951) .........................
In re Florance, 47 Cal. 2d 25, 300 P. 2d 825 (1956) ......
In re Holmes, 379 Pa. 599, 109 A. 2d 523 (1954), cert.

denied, 348 U. S. 973 (1955) .....................16,17, 22, 23,
In re Mantell, 157 Neb. 900, 62 N. W. 2d 308, 43 A. L. R.

2d 1122 (1954) .........................................................
In re Murchison, 349 U. S. 133 (1955) ................. 29,60,
In re Oliver, 333 U. S. 257 (1948) ................................
In re Poff, 135 F. Supp. 224 (D. D. C. 1955) .......... 13, 25,
In re Poulin, 100 N. H. 458, 125 A. 2d 672 (1957) ......
In re Ronny, 40 Misc. 2d 194, 242 N. Y. S. 2d 844 (Fam­

ily Ct. 1963) ................................................................
In re Roth, 158 Neb. 789, 64 N. W. 2d 799 (1954) ......
In re Sadleir, 97 Utah 291, 85 P. 2d 810 (1938) ..........
In re Santillanes, 47 N. M. 140, 138 P. 2d 503 (1943) .17,
In re Wright, 251 F. Supp. 880 (M. D. Ala. 1965) ......
In the Matter of Gonzalez, 328 S. W. 2d 475 (Tex. Ct.

App. 1959) ..................................................................
Interest of Long, 184 So. 2d 861 (1966) .........................

24

■34
33

57
16
33

57

46
62
29
39
34

26
34
57

,57
29

16
39

43Johnson v. Zerbst, 304 IJ. S. 458 (1938) 

Kent v. U. S., 383 H. S. 541 (1966) ....... .9,12,17,19, 25, 
35, 36, 54, 59



V

Malloy y . Hogan, 378 U. S. 1 (1964) ............................  51
Matter of McDonald, 153 A. 2d 651 (D. C. Mnnic. Ct.

App. 1959) ..................................................................  16
Matter of Solberg, 52 N. D. 518, 203 N. W. 898 (1925) 34
McCarthy v. Arndstein, 266 U. S. 34 (1924) .............. 51
Miranda v. Arizona, 384 U. S. 436 (1966) .................  36
Murphy v. Waterfront Commission, 378 U. S. 52 

(1964) ........................................................................12,51

People ex rel. Solemon v. Slattery, 39 N. Y. S. 2d 43
(Sup. Ct. 1942) ...........................................................  60

People v. Dotson, 46 Cal. 2d 891, 299 P. 2d 875 (1956) .. 16 
People v. James, 9 N. Y. 2d 82, 211 N. Y. S. 2d 170, 172

N. E. 2d 552 (1961) .............................................. 46,47
People v. Lewis, 260 N. Y. 171, 183 N. E. 353 (1932)

15,17, 58, 59
People v. Silverstein, 121 Cal. App. 2d 140, 262 P. 2d

656 (1953) ....................................................................  17
Petition of O’Leary, 325 Mass. 179, 89 N. E. 2d 769

(1950) .............................................   34
Pettit v. Engelking, 260 S. W. 2d 613 (Tex. Civ. App.

1953) ...........................................................................  34
Pointer v. Texas, 380 U. S. 400 (1965) .....................43,48
Powell v. Alabama, 287 U. S. 45 (1932) ..............11,29,34,

35, 37, 38

Eeynolds v. Cochran, 365 U. S. 525 (1961) .................  37

Shioutakon v. District of Columbia, 236 F. 2d 666 (D. C.
Cir. 1956) ....   35,39

State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S. W. 1028 
(1914) ..

PAGE

34



V I

State ex rel. Christensen v. Christensen, 119 Utah 361,
227 P. 2d 760 (1951) ................................ .................. 16

State ex rel. Raddue v. Superior Court, 106 Wash. 619,
180 P. 875 (1919) .......................................................  16

State v. Andersen, 159 Neb. 601, 68 N. W. 2d 146
(1955) .........................................................................  34

State v. Chitwood, 73 Ariz. 161, 239 P. 2d 353 (1951), 
on rehearing, 73 Ariz. 314, 240 P. 2d 1202 (1952) .... 56

State v. Logan, 87 Fla. 348, 100 So. 173 (1924) ..........  60
State v. Naylor, 207 A. 2d 1 (Del. 1965) ......................... 24
State v. Shardell, 107 Ohio App. 338, 153 N. E. 2d 510

(1958) .......................................................................... 57
Sylvester v. Commonwealth, 253 Mass. 244, 148 N. E.

449 (1925) ..................................................................  16

Thompson v. City of Louisville, 362 U. S. 199 (1960) .... 61 
Trimble v. Stone, 187 F. Supp. 483 (D. D. €. 1960) ......  24

U. S. v. Dickerson, 168 F. Supp. 899 (D. C. 1958), rev’d 
on other grounds, 106 U. S. App. D. C. 221, 271 F. 2d
487 (1959) ..................................................................  57

U. S. v. Morales, 233 F. Supp. 160 (D. C. Mont. 1964) .... 24

Von Moltke v. Gillies, 332 U. S. 708 (1948) .................  43

White v. Maryland, 373 U. S. 59 (1963) .....................  36
Williams v. Kaiser, 323 U. S. 471 (1945) .........................  38
Williams v. New York, 337 U. S. 241 (1949) ..............22, 29
Williams v. Zuekert, 371 U. S. 531 (1963) ....................  45
Willner v. Committee on Character & Fitness, 373 U. S.

96 (1963) ....................................................................  45

PAGE



Constitutional Provisions:
United States Constitution

Fifth Amendment ........................................... 36
Fourteenth Amendment ...... 3,13,18, 35,44, 51, 60

Arizona Constitution
Article 2, Section 19 .......................................  54
Article 6, Section 15 .......................................  52

Statutes and Rules:

28 U. S. C. §1257(2) ...................................................... 2

Criminal Code of Arizona, Ch. 8, §§13-2001 to 2027, 
Arizona Revised Statutes (1956) ................................  1

Juvenile Code of Arizona, §§8-201 to 8-239, Arizona 
Revised Statutes ....................................................passim

Title 4, §245 ................................................ -..................  56
Title 13, §101, Arizona Revised Statutes .....................  50
Title 13, §377, Arizona Revised Statutes ..............2, 23, 30,

31, 38, 50, 52

Title 44, §1660 .............................................................. 55-56
California Welfare and Institutions Code (1961)

§§500-914 ..................................................................  27
§§653, 656 ................................................................  31

§679 .........................................................................  39

Illinois Laws, 1899, at 131 ........................................... 14

VII

PAGE



V l l l

New York Family Court Act (1962)
§241 .............................................

§711 .............................................

§731 ............................................ .
§741 .............................................

PAGE

... 39 

.. 27 

.. 31 

39, 58

Other Authorities'.

Allen, Criminal Justice, Legal Values and the Re­
habilitative Ideal, 50 J. Crim. L. C. and P. S. 226
(1959) .........................................................................  22

Antieau, Constitutional Rights in Juvenile Courts, 46 
Cornell L. Q. 387 (1961) ............... 13,16, 25, 33, 39, 49, 57

Beemsterboer, The Juvenile Court—Benevolence in the 
Star Chamber, 50 J. Crim. L. C. and P. S. 464 (1960) 25

Biographical Data Survey of Juvenile Court Judges, 
George Washington Univ., Center of Behavioral 
Sciences (1964) .................... ..................................... 38

Children’s Bureau, U. S. Dept, of Health, Education & 
Welfare, Standards for Juvenile and Family Courts 
(1966) ....................................... 14, 27, 33, 41-42, 47, 57, 60

Dembitz, Ferment and Experiment in New York: 
Juvenile Cases in the New York Family Court, 48 
Cornell L. Q. 499 (1963) ..........................................  25

Glueck, Some “Unfinished Business” in the Manage­
ment of Juvenile Delinquency, 15 Syracuse L. Rev.
628 (1964) ....................................... ...........................15,16



IX

Guidebook for Judges, prepared by the Advisory Coun­
cil of Judges of the National Council on Crime and 
Delinquency ................................................................

Horwitz, The Problem of the Quid pro Quo, 12 Buffalo 
L. Rev. 528 (1963) ......................................................

Illinois Legislative Council, Juvenile Court Proceed­
ings in Delinquency Cases (1958) ............................

Institute of Judicial Administration, Juvenile Courts— 
Jurisdiction (1961) .................................................... 14

Ketcham, Legal Renaissance in the Juvenile Court, 60 
Nw. U. L. Rev. 585 (1965) ...... ....................-........25, 27, 39

Mack, The Juvenile Court, 23 Harv. L. Rev. 104
(1909)...........................................................................  15

McCune and Skoler, Juvenile Court Judges in the 
United States, 11 Crime & Delinquency 121 (1965) ..-38 

McKay, The Right of Confrontation, 1959 Wash.
U. L. R. 122 .............................................................44,46

Meltsner, “Southern Appellate Courts: A Dead End” 
in Friedman (ed.), “Southern Justice” 152 (1965) .... 29 

Molloy, Juvenile Court—A Labyrinth of Confusion for 
the Lawyer, 4 Ariz. L. Rev. 1 (1962) .....................50, 54

National Probation and Parole Association (NPPA)
(now the National Council on Crime and Delin­
quency, NCCD), Standard Juvenile Court Act (Rev.
1959), 5 NPPAJ 323 (1959) .......................... 14,27,31,39

NCCD, Standard Family Court Act (1959) .......... 14, 47, 60
Note, Juvenile Courts: Applicability of Constitutional 

Safeguards and Rules of Evidence Proceedings, 41 
Cornell L. Q. 147 (1955)...............................................  16

PAGE

33

17



X

Note, Juvenile Delinquents: The Police, State Courts 
and Individualized Justice, 79 Harv. L. Rev. 775
(1966) .......................................................................... 14

NPPA, Guides for Juvenile Court Judges (1957) ......  14

Paulsen, Fairness to the Juvenile Offender, 41 Minn.
L. Rev. 547 (1957) ................................... 16, 25, 33, 39, 56

Quick, Constitutional Rights in the Juvenile Court, 12 
How. L. J. 76 (1966) ..................................................  25

Radzinowicz and Turner, A Study of Punishment I: 
Introductory Essay, 21 Canadian Bar Rev. 91-97
(1943) .........................................................................  22

Rubin, Protecting the Child in the Juvenile Court, 43 
J. Crim. L. C. and P. S. 425 (1952) ......................... 25

Schinitsky, The Role of the Lawyer in Children’s 
Court, The Record (The Assn, of the Bar of the City
of New York), Vol. 17, No. 1, Jan., 1962 ................. 39,41

Skoler, Juvenile Courts and Young Lawyers, 10 The
Student Law J. 5 (Dec. 1964) ...................................  25

Starrs, A Sense of Irony in Juvenile Courts, 1 Harv.
Civil Rights—Civil Liberties L. Rev. 129 (1966) ....... 29

Sussman, Juvenile Delinquency (1955) .........   17
Sussman, Law of Juvenile Delinquency (Rev. ed. 1959) 14

The Interstate Compact on Juveniles: Development
and Operation, 8 J. of Pub. Law 24 (1959) ..........  14

Tompkins, In the Interest of a Child (1959) .................  14

U. S. Commission on Civil Rights Report, Law En­
forcement, 1965 .......................................................  28

PAGE



X I

Watson, The Child and the Magistrate (England 1965) 57
Welch, Delinquency Proceedings—Fundamental Fair­

ness for the Accused in a Quasi-Criminal Forum, 50

PAGE

Minn. L. Rev. 653 (1966) ...........................................13, 25

5 Wigmore, Evidence §1400 (3rd ed., 1940) ...............  44

5 Wigmore, Evidence §1367 (3rd ed., 1940) .................  45



I n t h e

^uprem? Court of %  luttrb ^tatro
October T erm , 1966 

No. 116

In the Matter of the Application 

—of—

P aul L. Gault and M arjorie Gault, father and mother 
of Gerald F rancis Gault, a Minor.

BRIEF FOR APPELLANTS

Opinions Below

The opinion of the Supreme Court of Arizona (R. 83-97) 
is reported at 99 Ariz. 181, 407 P. 2d 760. The Superior 
Court of Maricopa County, Arizona, from which appeal was 
taken, wrote no opinion. The Juvenile Court of Gila County 
wrote no opinion; its decision is found in the order of 
commitment, dated June 15, 1964, contained in the Record 
as Exhibit 4 (R. 81-82).

Jurisdiction

Appellants filed a petition for a writ of habeas corpus 
in the Supreme Court of Arizona on August 3, 1964, pursu­
ant to the provisions of Chapter 8 of the Criminal Code 
of the Arizona Revised Statutes (1956), Sections 13-2001- 
2027. The same day, the Supreme Court of Arizona



2

ordered a hearing of the application in the Superior Court 
of Maricopa County. The hearing was held on August 17, 
1964. The Superior Court dismissed the petition, dis­
charged the writ, and remanded the juvenile to the State 
Industrial School.

The order of the Superior Court was affirmed on appeal 
by the Supreme Court of Arizona on November 10, 1965, 
and a timely application for rehearing was denied by that 
Court on December 16, 1965 (R. 99). Notice of Appeal to 
the Supreme Court of the United States was filed with the 
Supreme Court of Arizona on February 4, 1966 (R. 100). 
On March 21, 1966, Hon. Fred C. Struckmeyer, Chief 
Justice of the Supreme Court of Arizona, enlarged appel­
lants’ time to file the Jurisdictional Statement and to 
docket the appeal to May 5, 1966. The Jurisdictional State­
ment was filed on May 2, 1966 and probable jurisdiction 
was noted on June 20, 1966. Jurisdiction on appeal is 
conferred by 28 U.S.C. §1257(2).

Statutes Involved

Article 6, Section 15 of the Arizona Constitution, the 
Juvenile Code of Arizona, Sections 8-201 to 8-239, Arizona 
Revised Statutes, and Title 13, Sec. 377, Arizona Revised 
Statutes, are set forth in full in the Appendix to this brief.



3

Question Presented

Whether the Juvenile Code of Arizona, Sections 8-201 
to 8-239, Arizona Revised Statutes, on its face or as con­
strued and applied, is invalid under the Due Process Clause 
of the Fourteenth Amendment to the United States Con­
stitution because it authorizes a juvenile to be taken from 
the custody of his parents and to be committed to a state 
institution by a judicial proceeding which confers unlimited 
discretion upon the Juvenile Court and dispenses with the 
following procedural safeguards required by due process 
of law:

1. right to notice of the charges of delinquency;
2. right to counsel;

3. right to confrontation and cross-examination of ad­
verse witnesses;

4. privilege against self-incrimination;

5. right to a transcript of the proceedings; and

6. right to appellate review of the juvenile court’s 
decision.



4

Statem ent o f th e  Case1

Appellants are the parents of fifteen year old Gerald 
Francis Gault who was committed as a juvenile delinquent 
to the State Industrial School in Arizona after a juvenile 
proceeding in the Superior Court of Gila County, Globe, 
Arizona, on June 15,1964. No transcript exists of the hear­
ing before the juvenile court.2

On June 8, 1964, Gerald Francis Gault and a friend, 
Eonald Lewis, were taken into custody by the Sheriff of 
Gila County as the result of a complaint by one Mrs. Cook, 
a neighbor of the boys, about lewd telephone calls made 
to her. Gerald was at this time on six months’ probation 
following an incident in February, 1964 (R. 13). Proba­
tion officers Flagg and Henderson decided to detain the 
children (R. 48). Mr. Flagg interrogated Gerald at some 
length during the evening of June 8th and the morning of 
June 9th (R. 48).

No notice of the detention or charges was left at the 
Gault home. Mrs. Gault, who returned from work at 6 :Q0 
P.M., was informed by neighbors about the detention and 
went to the detention home. There she was told by proba­
tion officer Flagg why Gerald was detained and that a hear­
ing would be held at 3 o’clock the following day, June 9th.

1 The statement of facts is based on the habeas corpus hearing 
held on August 17, 1964 in the Superior Court of Maricopa County 
after a petition for a writ of habeas corpus had been filed by ap­
pellants on August 3, 1964 in the Supreme Court of Arizona to 
secure the release of the child. The record of that hearing is part 
of the record on appeal.

2 The Arizona statute does not require a record to be made of 
juvenile hearings but only of the age, place of birth and name of 
the child and his parents (§8-229).



No written notice of the hearing or of the charges was 
given to Mrs. Gault (R. 29-30).

A petition charging Gerald with juvenile delinquency was 
filed by probation officer Flagg with the Court on June 9, 
1964, but Mrs. Gault had not received notice of it and did 
not see it until August 17, when the habeas corpus hearing 
was held (R. 33). A referral report charging Gerald with 
making “lewd phone calls” made by the Probation Depart­
ment, filed on June 15, 1964, was also not brought to appel­
lants’ notice until August 17th, when introduced by appel­
lants’ attorney together with the above mentioned petition 
(R. 34).

On June 9th a hearing took place in the Juvenile Judge’s 
chambers in the presence of Gerald, his mother, Ms older 
brother Louis, and Mr. Flagg and Mr. Henderson, the pro­
bation officers. Mr. Gault, Gerald’s father, was in Grand 
Canyon at work (R. 20). No one was sworn at this hearing 
(R. 30). No transcript was made (R. 54).

Gerald testified at the June 9th hearing about the tele­
phone call. There was a conflict at the habeas corpus hear­
ing about this testimony. Mrs. Gault testified that Gerald 
said he only dialed Mrs. Cook’s number and his friend talked 
to Mrs. Cook (R. 30), while Judge McGhee, the Juvenile 
Judge (R. 59), and Probation Officer Flagg testified 
that Gerald admitted having said some of the lewd words 
but not the more serious ones (R. 59). At the conclusion of 
the hearing, in answer to a question by Gerald or his mother 
if Gerald would be sent to Fort Grant,3 Judge McGhee said:

3 The State Industrial School.



6

“No, I will think it over” (E. 31, 39). Gerald stayed in the 
detention home until June 12th when he was released to 
his parents. At 5 o’clock that day, Mrs. Gault received a 
written note4 signed by Officer Flagg which said: “Mrs. 
Gault, Judge McGhee has set Monday, June 15th, 
1964 at 11:00 A.M. as the day and time for further hearings 
on Gerald’s delinquency.” (Exhibit 1, E. 8.)

At the hearing on June 15th, both appellants were pres­
ent, Mr. Gault having returned home on June 12th (E. 21). 
Others present at this hearing before Judge McGhee were 
Eonald Lewis with his father, and probation officer Flagg.

Mrs. Cook, the person who had complained about the 
phone call, was not present or called as a witness. Proba­
tion officer Flagg had only talked to her over the phone 
on June 9th (E. 48) and Judge McGhee had not spoken 
to her at all (E. 76). When Mrs. Gault asked the judge 
during this hearing why Mrs. Cook was not present, and 
said that “she wanted Mrs. Cook present so she could see 
which boy had done the talking, the dirty talking over the 
phone” (E. 36), Judge McGhee answered, “she didn’t have 
to be present at that hearing” (E. 36).

Conflict also exists about Gerald’s testimony at this sec­
ond hearing. Appellants (E. 35) and Mr. Flagg (E. 45) 
stated that Gerald did not admit having made any lewd 
remarks and only dialed the number. Judge McGhee tes­
tified that Gerald again admitted having made some of the 
obscene remarks but not the more serious ones (E. 61).

4 There was a conflict in the testimony as to when Gerald was 
released and when Mrs. Gault received this note. Probation officer 
Flagg, without having made a record about these events, testified 
that both occurred on Thursday, June 11th.



7

There was no other evidence about Gerald’s use of lewd 
language. Probation officer Flagg testified that Gerald 
had never admitted to him that he used any indecent lan­
guage over the telephone (E. 57). Nevertheless, in the re­
ferral report by the probation department (Exhibit 2, 
E. 79) the charge against Gerald on June 8, 1964 was 
“lewd phone calls.”

The June 9th petition filed by Mr. Flagg with the Su­
perior Court, Gila County (Exhibit 3, E. 80) alleged 
that Gerald Gault was “a delinquent minor.” Probation 
officer Flagg based this charge on the fact that “the phone 
calls were made, and when they were traced, they went to 
his home. And the fact that when I asked him to recite 
Mrs. Cook’s phone number, he recited it like it was his own” 
(E, 50). Asked by appellants’ attorney under which part 
of Section 8-201 Gerald had been charged with, Officer Flagg 
answered “we set no specific charge in it, other than de­
linquency” (E. 52).

There was no conflict in the testimony with regard to the 
following facts at both the June 9th and June 15th hear­
ings : that the parents were not given a copy of the petition 
or written notice of the hearing date except Mr. Flagg’s 
note concerning the hearing on June 15th; that the parents 
were not informed of the right to subpoena witnesses, to 
cross-examine witnesses, of the right to confrontation, or 
of the right to counsel (E. 35, 46-47, 59, 71) ;5 that at no 
time during the juvenile proceeding was an investigation

5 Though appellants testified that they knew of their right to 
call witnesses and to retain an attorney (R. 19, 40), both Mr. 
Flagg and the Juvenile Judge acknowledged that they never ad­
vised the Gaults of their right to counsel, their right to subpoena 
witnesses or their right to cross-examine (R. 46, 59, 71).



conducted to examine Gerald’s home conditions or his be­
havior (E. 20, 34, 53). The only investigation claimed to 
have been made was apparently conducted in February, 
1964, when Gerald had been put on probation on a previous 
delinquency charge (E. 53). No record exists of this pre­
vious charge or hearing other than a referral report made 
by the Probation Department (E. 13).

It is difficult, based on the Juvenile Judge’s testimony, 
to know with certainty what the basis was for the finding 
of delinquency. The Juvenile Court Judge thought that 
the phone calls “amount[ed] to disturbing the peace” 6 7 
(E. 61) but he also considered that Gerald was “habitu­
ally involved in immoral matters” (I b i d He testified 
that there was “Probably another ground, too” (E. 73).

As stated by Judge McGhee, the finding of juvenile de­
linquency was based on “the boy’s statements” (E. 76) and 
upon the admission of Gerald Gault (E. 65) as to the use of 
lewd language and on facts not contained in the juvenile 
file, i.e., a referral report in the probation file dated July 2, 
1962, that Gerald had stolen a baseball glove. On this report 
Judge McGhee had based his finding that the boy was delin­
quent because “habitually involved in immoral matters” 
even though the report was never followed up, no accusation 
was made, and no hearing held “because of lack of material 
foundation” (E. 61, 62). The report, and the fact that the 
judge relied on it, was not brought to appellants’ knowledge 
until August 17, 1964 at the habeas corpus hearing (E. 
71-72).

6 Thereby bringing the boy within §8-201(6) (a ) .
7 Thereby bringing the boy within §8-201(6) (d).



9

No warning about the possible consequences of the 
charges were given to appellants by the probation officer 
(R. 17, 35, 54). Judge McGhee stated that he gave the 
usual warning in February and “reminded” the parents of 
the February admonition on June 9th (R. 66).

Summary of Argument

I.
Juvenile courts developed out of a desire to treat way­

ward youths as a prudent parent treats his child—with 
concern for the individuality of each person, the causes 
of his acts, and the means to rehabilitate him to be a useful 
citizen. This concept of the “parens patriae” led, however, 
to a court system in which traditional legal safeguards were 
dispensed with in determining whether a child was delin­
quent. The barter of due process for individualized treat­
ment has cost juveniles dearly, leading this Court recently 
to state that “there is evidence . . . that the child receives 
the worst of both worlds: that he gets neither the protec­
tions accorded to adults nor the solicitous care and regen­
erative treatment postulated for children.” Kent v. United 
States, 383 TT.S. 541, 555-56 (1966).

II.
The Arizona Juvenile Code, and the proceedings taken 

under it in this case, lacked the fundamental procedural 
protections that comprise due process of law. This depri­
vation of rights cannot be justified. First, the “parens 
patriae” notion is no substitute for the fairness that the 
juvenile is entitled to when his vital interests are at stake. 
Further, there is no substance to any contention to the



10

effect that a juvenile proceeding is “civil” and not “crim­
inal” and dispenses “treatment” rather than “punishment”. 
Apart from the fact that the rehabilitative ideal is equally 
present in the conventional criminal law, the accused juve­
nile delinquent stands to lose as much of his liberty, and 
sometimes more, than the adult charged with a comparable 
offense and prosecuted in the criminal courts. The inter­
relationship between Arizona juvenile court actions and 
criminal prosecutions further points up the weakness of the 
suggestion that juvenile proceedings need not provide due 
process of law. Impressed by these considerations, state 
and federal courts, draftsmen of modern juvenile court acts, 
and scholarly commentators all evince a growing recogni­
tion that there are compelling reasons of fairness to pro­
vide young people with basic procedural protections in 
juvenile court.

A.
The first essential of due process, where an individual’s 

liberty is in jeopardy, is that he be clearly informed of the 
nature of the charge against him so that he can decide on a 
course of action and prepare his defense. Here Gerald 
Gault was not properly advised of his acts complained of, 
the statute or applicable rule of law such acts were alleged 
to violate, or the possible consequences of a finding against 
him. In these circumstances, the juvenile court’s decision 
to deprive him of six years of liberty violated his consti­
tutional rights.

B.
The denial of the right to counsel in this case also vitiated 

the proceedings. The decision below on this point flies in 
the face of principles painstakingly elaborated by this Court



11

over many years. A juvenile proceeding involving a deter­
mination of delinquency carries with it sufficient social 
stigma and danger of deprivation of liberty so that there 
is no less need for the assistance of counsel there than in 
criminal cases, where it has been recognized as a funda­
mental constitutional right. Poiuell v. Alabama, 287 U.S. 45 
(1932); Gideon v. Wainwright, 372 U.S. 335 (1963). Legal 
counsel is particularly vital in juvenile proceedings because 
of the immaturity of the accused delinquent, the uncertainty 
of the rights possessed b)̂  the accused, the fact that many 
juvenile judges are laymen or part-time, and the wide dis­
cretion of juvenile courts in dealing with young persons 
adjudged delinquent.

C.
This court has unanimously held that the Sixth Amend­

ment guarantee of confrontation and cross-examination is 
an integral part of due process because without them there 
can be no fair or reliable determination of truth. Begard- 
less of whether juvenile proceedings are denominated crim­
inal or civil, these rights must be available. Surely a ju­
venile proceeding in which the loss of liberty is at stake 
involves interests as great as those involved in adjudicatory 
administrative proceedings, where confrontation and cross- 
examination have been held to be constitutionally mandated. 
Here Gerald Gault was adjudged a delinquent without any 
consideration of the testimony of the woman alleged to have 
received the obscene telephone call. The confusing testi­
mony of others concerning what actually happened and 
whether Gerald Gault was involved accentuates the error 
of the notion that an individual can be deprived of liberty 
without the trier of fact hearing the testimony of the 
alleged victim.



12

D.
Gerald Gault was found to have committed a crime under 

the law of Arizona and his commitment by the court rested 
in part on that finding. There is no dispute that decisive 
admissions of elements of this offense were elicited from 
him by the juvenile court, which gave him no advice that 
he did not have to testify. Under familiar principles, the 
privilege against self-incrimination can be claimed “in any 
proceeding, be it criminal or civil, administrative or judi­
cial, investigative or adjudicatory.” Murpliy v. Waterfront 
Commission, 378 U.S. 52, 94 (1964). The relevant inquiry 
is whether the witness may in any way incriminate himself 
by testifying or making a statement. Under the law of 
Arizona, Gerald Gault ran the risk when he testified of 
furnishing evidence which could be used against him in a 
criminal prosecution. In these circumstances, the State 
was required either to afford him the privilege against 
self-incrimination or grant him immunity commensurate 
with the risk. It did neither, in plain violation of the 
Constitution.

E.
The State’s failure to provide a right of appellate review 

of the juvenile court decision or a right to a transcript of 
the proceedings in the juvenile court constitutes a departure 
from the requirements of due process of law. Although 
it has been said that a state is not required to provide 
appellate review of criminal actions, there can be no “li­
cense for arbitrary procedure.” Kent v. United States, 
383 U.S. 541, 553 (1966). The Arizona statutory scheme 
grants to the juvenile judge practically unlimited discretion 
in the conduct of a hearing at which individual liberty is



13

at stake. Such a proceeding cannot be squared with con­
stitutional requirements of fundamental fairness unless 
there is opportunity for direct review, or at least collateral 
review on the basis of an official transcript.

A R G U M E N T

I.
The historical background of procedural deficiencies 

in Juvenile Courts.

This case presents the important constitutional question 
of the extent to which certain fundamental requirements of 
procedural fairness guaranteed by the Due Process Clause 
of the Fourteenth Amendment are applicable to juvenile 
court proceedings. The history of juvenile courts in this 
country is valuable in appreciating the background and 
dimensions of this question. It reveals both the high pur­
poses of the movement that led to juvenile courts and how 
these purposes came to be perverted in the form of pro­
ceedings—as exemplified by this case from Arizona—that 
lack the most elemental protections of due process.

Before the enactment of juvenile court acts, criminal 
prosecutions against juveniles and adults were handled 
identically and included the same procedural safeguards.8 
At the turn of the century, insights acquired through the 
development of the behavioral sciences—penology, psy­
chiatry, psychology and social work—led to popular and

8 See Welch, Delinquency Proceedings—Fundamental Fairness 
for the Accused in a Quasi-Criminal Forum, 50 Minn. L. Rev. 653, 
654-55 (1966) ; In  Be Poff, 135 F. Supp. 224, 225 (D. D. C. 1955). 
See generally Antieau, Constitutional Rights in Juvenile Courts, 
46 Cornell L. Q. 387 (1961).



14

professional dissatisfaction with prosecutions against chil­
dren. This led to the establishment of the first juvenile 
court in 1899 in Cook County, Illinois (111. Laws, 1899, at 
131). Since then, all states have provided by statute that 
children who are accused of acts which would violate the 
criminal law or who are alleged to be beyond the control 
of their parents—“incorrigible”, “wayward”, or “ungovern­
able”—are subject to proceedings in a juvenile or family 
court.9

Underlying all juvenile law is the concept of the state 
as the guardian of the child or “parens patriae”. The princi­
ple is that the child who has acted wrongly should be treated 
by a court as a prudent parent treats his erring child, not 
as a criminal. In the words of an early study:

“ [T]he state must step in and exercise guardianship over 
a child found under such adverse social or individual 
conditions as develop crime. . . .  It proposes a plan

9 State code provisions are compiled and compared in : Institute 
of Judicial Administration, Juvenile Courts-Jurisdiction (1961); 
Sussman, Law of Juvenile Delinquency (Rev. ed. 1959) ; Tomp­
kins, In the Interest of a Child (1959) (prepared for the California 
Special Study Commission on Juvenile Justice) ; Illinois Legisla­
tive Council, Juvenile Court Proceedings in Delinquency Cases 
(1958) (12 selected states).

Model and Uniform legislation and standards appear in: Na­
tional Probation and Parole Association (NPPA) (now the National 
Council on Crime and Delinquency, NCCD), Standard Ju ­
venile Court Act (Rev. 1959), 5 NPPAJ 323 (1959); NCCD Stand­
ard Family Court Act (1959) ; Children’s Bureau, U. S. Dept, of 
Health, Education and Welfare, Standards for Juvenile and 
Family Courts (1966); NPPA, Guides for Juvenile Court Judges 
(1957); see also The Interstate Compact on Juveniles: Develop­
ment and Operation, 8 J. of Pub. Law 524 (1959). A recent study 
of the operation of these courts is contained in Note, Juvenile 
Delinquents: The Police, State Courts, and Individualized Justice, 
79 Harv. L. Rev. 775 (1966).



15

whereby he may be treated, not as a criminal, or legally 
charged with a crime, but as a ward of the state, to 
receive practically the care, custody and discipline that 
are accorded the neglected and dependent child, and 
which . . . shall approximate as nearly as may be that 
which should be given by its parents.” 10

In brief, the early juvenile courts emphasized the indi­
viduality of the child, the causes of his act, and the means 
to help him to become a useful citizen. “The problem for 
determination by the judge is not, Has this boy or girl 
committed a specific wrong, but What is he, how has he be­
come what he is, and what had best be done in his interest 
and in the interest of the state to save him from a down­
ward career.” Mack, The Juvenile Court, 23 Harv. L. Rev. 
104, 119 (1909), quoted in People v. Lewis, 260 N. Y. 171, 
177, 183 N. E. 353, 355 (1932).

It was a short step from the concept of individualized 
justice in the treatment or rehabilitative phase of a pro­
ceeding to a greater informality in the trial itself. It was 
feared that the fact-finding procedures of our accusatory, 
adversary system of criminal trials were inimical to the 
establishment of the relationship between court and child 
which was thought necessary to his proper treatment and 
rehabilitation.

The consequence of this “swapping” of due process for 
parens patriae was that many traditional legal safeguards 
of criminal proceedings were dispensed with, to the in­

10 Report of the Committee of the Chicago Bar, 1899, quoted in 
Glueck, Some “Unfinished Business” in the Management of Ju ­
venile Delinquency, 15 Syracuse L. Rev. 628, n. 2 (1964).



16

evitable detriment of individual rights.11 Some courts even 
went so far as to insist flatly that constitutional safeguards 
of criminal procedure were not applicable to juvenile pro­
ceedings. In re Holmes, 379 Pa. 599, 603, 109 A. 2d 523, 
525 (1954), cert, denied, 348 U. S. 973 (1955). In other 
courts the result was a host of questionable decisions. 
Vague allegations of anti-social behavior were sufficient to 
bring a child before some juvenile courts,12 and the infor­
mality of the juvenile procedure was often used to accept 
uncorroborated admissions, hearsay testimony and the un­
tested reports of social investigations.13 The right to coun­
sel and the right to notice of charges were sometimes dis­
pensed with.14 The protections against self-incrimination 
and double jeopardy also were rejected in some courts on

11 Glueck, Some “Unfinished Business” in the Management of 
Juvenile Delinquency, 15 Syracuse L. Rev. 628, 629 (1964). See 
also Antieau, Constitutional Rights in Juvenile Courts, 46 Cornell 
L. Q. 387 (1961); Note, Juvenile Courts: Applicability of Consti­
tutional Safeguards and Rules of Evidence to Proceedings, 41 
Cornell L. Q. 147 (1955); Paulsen, Fairness to the Juvenile 
Offender, 41 Minn. 547 (1957).

12 In re Bentley (Harry v. State), 246 Wise. 69, 16 N. W. 2d 390 
(1944); State ex rel. Baddue v. Superior Court, 106 Wash 619 
180 P. 875 (1919).

13 Uncorroborated Admissions: In  the Matter of Gonzalez, 328
S. W. 2d 475 (Tex. Ct. App. 1959); Matter of McDonald, 153 A. 2d 
651 (D. C. Munic. Ct. App. 1959). Hearsay: In  re Holmes, 379 
Pa. 599, 109 A. 2d 523 (1954), cert, denied, 348 U. S. 973 (1955) ; 
State ex rel. Christensen v. Christensen, 119 Utah 361, 227 P. 2d 
760 (1951); Sylvester v. Commonwealth, 253 Mass. 244 148 N E 
449 (1925). ' ‘

14Notice of charges: In  re Duncan, 107 N. E. 2d 256 (1951) • 
In  re Bentley, 246 Wis. 69, 16 N. W. 2d 390 (1944). Right to 
counsel: People v. Dotson, 46 Cal. 2d 891, 299 P. 2d 875 (1956); 
Akers v. State, 114 Ind. App. 195, 51 N. E. 2d 91 (1943) • In  
Interest of T. W. P., 184 So. 2d 507 (Fla. Ct. of App. 1966).’



17

the ground that the juvenile proceeding is a civil rehabilita­
tive procedure and not a criminal proceeding.15

This is not to say that the juvenile court movement 
did not lead to advances in the treatment of juveniles. 
It is rather to emphasize that the net effect of developments 
over the past half century was that juvenile court proceed­
ings, which were instituted to protect the young, led in 
many jurisdictions to findings of delinquency in proceed­
ings that conspicuously failed to protect the child. See 
Horwitz, The Problem of the Quid pro Quo, 12 Buffalo 
L. Rev. 528 (1963). As stated by the dissenting Judge in 
In re Holmes, supra, 379 Pa. at 615, 109 A. 2d at 530.

The concept that the State acts as parens patriae is 
being somewhat overdone. Even if the state assumes 
the parental role, this assumption does not prove that, 
by divine omniscience, it cannot be other than just. It is 
not impossible for a father, or even a mother, to be 
unreasonable with offspring. What a child charged 
with crime is entitled to, is justice, not a parens patriae 
which in time may become a little calloused, partially 
cynical and somewhat over-condescending. (Emphasis 
in original.)

The disturbing state of affairs regarding the quality of 
justice meted out to young people recently received the 
attention of this Court in Kent v. United States, 383 U. S. 
541 (1966). There, with specific reference to the gap be­
tween ideal and reality, Mr. Justice Fortas said:

15 Self-incrimination: In  re Holmes, supra; People v. Lewis, 
260 N. Y. 171, 183 N. E. 353 (1932) ; In  re SantiUanes, 47 N. M. 
140,138 P. 2d 503 (1943). Double Jeopardy: People v. Silverstein, 
121 Cal. App. 2d 140, 262 P. 2d 656 (1953). In  re Santillanes, 
supra. See generally Sussman, Juvenile Delinquency, pp. 11-16 
(1955).



18

“While there can be no doubt of the original laudable 
purpose of juvenile courts, studies and critiques in 
recent years raise serious questions as to whether 
actual performance measures well enough against 
theoretical purpose to make tolerable the immunity of 
the process from the reach of constitutional guaranties 
applicable to adults. . . . There is evidence, in fact, 
that there may be grounds for concern that the child 
receives the worst of both worlds: that he gets neither 
the protections accorded to adults nor the solicitous 
care and regenerative treatment postulated for chil­
dren.” 383 U. S. at 555-56.

The remainder of this brief will try to demonstrate that 
the petitioner in this case, like countless other juveniles in 
Arizona and other jurisdictions, has in fact been receiving 
the “worst of both worlds” in plain derogation of the 
requirements of the due process clause of the Fourteenth 
Amendment.

II.
The Arizona juvenile proceedings failed to provide 

Gerald Gault with fundamental procedural protections 
that are required by the flue process clause of the Four­
teenth Amendment.

As the history summarized under Point I indicates, 
young persons appearing before juvenile courts throughout 
the country are frequently denied many of the protections 
accorded adults who are accused of crime. In the instant 
case Gerald Gault was “tried” and committed to the State 
Industrial School in a proceeding conducted under the 
Arizona Code that sharply illustrates the “procedural arbi­



19

trariness” (Kent v. United States, supra 383 U. 8. at 555) 
that often characterizes juvenile courts.

The Arizona Code does not contain standards for the 
arrest of a child charged with a violation of law (§8-221) 
and, as interpreted by the Arizona Supreme Court, does 
not incorporate the general law of arrest (R. 96); the 
statute provides merely for an informal hearing in the 
judge’s chambers (§8-229). No written transcript of the 
heai’ing is required, regardless whether the proceeding 
leads to a commitment or not; only a record of the name, 
age, place of birth of the child and names of his parents 
must be made. The statute does not impose an}7 limitations 
on the judge with respect to the nature of evidence to be 
used; it does not contain a requirement for sworn testi­
mony or cross examination of witnesses; it does not confer 
the privilege against self-incrimination upon the juvenile; 
it does not require that a transcript of the proceedings be 
made and makes no provision for appellate review. It also 
gives the judge authority to make any order for the com­
mitment, custody or care of the child “as the child’s welfare 
and the interest of the state require” (§8-231). No stand­
ards limit this wide discretion of the judge. He may 
commit a child until his majority, as in this case. He is not 
required to establish a relationship between the specific act 
of juvenile delinquency and the period of commitment; he 
does not have to show that the juvenile’s parents are unfit 
to handle the child when taking a child from the custody 
of his parents (407 P. 2d at 769; R. 96).

The boundless discretion conferred upon the juvenile 
court by the Arizona Code was exercised in this case to de­
prive appellants of due process. This becomes clear by 
tracing the events that occurred prior to and during the 
hearing.



20

Gerald Gault was arrested by the sheriff, detained by 
probation officers without an order of court, and interro­
gated at length. His parents were neither notified of the 
arrest nor informed of its grounds. The only written 
notice they ever received was contained in a note Mrs. Gault 
received from officer Flagg on Friday, June 12th, about 
the continuance of Gerald’s hearing “on his delinquency.” 
The time allowed appellants to prepare their case was 
extremely short. The hearing itself consisted mainly of 
hearsay statements. No witnesses were sworn. The com­
plainant was not called as a witness, even though appel­
lants had requested her presence, because the judge de­
cided that she was not necessary (E. 36). As conceded by 
Judge McGhee, his finding of delinquency was derived not 
only from the “boy’s statements” as to the use of lewd 
language, but on his “habitual involvement in immoral 
matters,” based on a referral report in the probation file 
which had never led to an accusation or hearing (R. 61). 
Appellants had no notice of this report and no opportunity 
to deny or defend against the charges.

In both juvenile hearings appellants appeared without 
counsel. They were neither informed of a right to counsel 
nor told that they would be furnished counsel in case of 
need (R. 35, 46-47, 59). The order of commitment taking 
the child from his parents for up to six years was made 
without investigation of the conditions in his home and 
without any warning that such a draconian remedy might 
follow. Finally, there was no transcript kept of the pro­
ceeding and no provision for appellate review of possible 
procedural errors or the evidentiary basis for the decision.



21

It is plain that in this case Arizona largely if not wholly 
dispensed with the basic procedural protections that are 
understood to comprise “due process of law.” In attempt­
ing to justify this handling of Gerald Gault, the Supreme 
Court of Arizona adhered closely to the usual formulation 
(407 P. 2d at 765; R. 88-89):

“ . . .  [JJuvenile courts do not exist to punish children for 
their transgressions against society. The juvenile court 
stands in the position of a protecting parent rather 
than a prosecutor. It is an effort to substitute protec­
tion and guidance for punishment, to withdraw the 
child from criminal jurisdiction and use social sciences 
regarding the study of human behaviour which permit 
flexibilities within the procedures. The aim of the court 
is to provide individualized justice for children. What­
ever the formulation, the purpose is to provide authori­
tative treatment for those who are no longer respond­
ing to the normal restraints the child should receive at 
the hands of his parents. The delinquent is the child 
of, rather than the enemy of society and their interests 
coincide. . .

This statement reduces to two overlapping theories. The 
first is the “parens patriae” notion, already alluded to under 
Point I. The second is that the child is not involved in a 
criminal proceeding and is not receiving “punishment” but 
“treatment.” Neither of these arguments, nor any other 
possible theory, can justify the refusal to accord Gerald 
Gault and other juveniles the protection of the Bill of 
Rights.

It has already been pointed out that although the parens 
patriae has roots in a genuine attempt to rehabilitate juve-



2 2

idle delinquents, what “a child charged with crime is en­
titled to, is justice, not a parens patriae.” In re Holmes, 
supra, 379 Pa. at 615, 109 A. 2d at 530 (dissenting opinion). 
The failure to provide appellants with due process—i.e., 
“justice”—is the basis for the claim in this case, and it is 
submitted that the theoretical comforts of a surrogate 
parent are barren in the face of the hard realities of a 
proceeding in which the vital interests of a child are en­
gaged.

These interests of the child are equally compelling in re­
jecting the mischievous notion that what is being meted out 
in juvenile proceedings is “treatment” and not “punish­
ment.” In the first place, modern criminology accords a 
high place to “rehabilitation” of criminals, thereby invali­
dating any purported distinction between juvenile and adult 
proceedings on this score. This Court has said

“Retribution is no longer the dominant objective of the 
criminal law. Reformation and rehabilitation of of­
fenders have become important goals of criminal juris­
prudence.” Williams v. New York, 337 U. S. 241, 248 
(1949).

See also Benson v. United States, 332 F. 2d 288, 292 (5th 
Cir. 1964); Radzinowicz and Turner, A Study of Punish­
ment I : Introductory Essay, 21 Canadian Bar Rev. 91-97 
(1943); and Allen, Criminal Justice, Legal Values and the 
Rehabilitative Ideal, 50 J. Crim. L. C. and P. S. 226 (1959).

Even apart from the failure of the “rehabilitation” theory 
to justify a failure to provide juveniles with procedural 
protection, the plain fact is that in this case and in countless 
others the juvenile is forcibly removed from his home and 
family through the force of the state. He is confined, per­



haps until his majority, “to a building with whitewashed 
walls, regimented routine and institutional hours”. In re 
Holmes, supra, 379 Pa. at 616, 109 A. 2d at 530 (dissenting 
opinion). That he is sent to a “home” or a “training school” 
rather than a prison does not in the least detract from the 
coerced loss of freedom. The child stands to lose every bit 
as much as an adult in a comparable situation. In fact, the 
child’s situation may be drastically worse, as this very case 
demonstrates. While an adult accused of the “crime” of 
using obscene language over the telephone could be con­
victed in Arizona of a misdemeanor and sentenced to a 
maximum of two months imprisonment (Arizona Stats. 
§13-377), Gerald Gault was deprived of his liberty for 
up to six years (R. 82) for the very same act, even though 
he was not convicted of a “crime” and technically was not 
“punished.”

The lack of substance to any purported distinction be­
tween the usual criminal prosecution and a juvenile pro­
ceeding is emphasized by the interrelationship between ju­
venile court actions and criminal prosecutions under the 
law of Arizona. As developed more fully below (pp. 51-54), 
the Arizona constitutional and statutory scheme for han­
dling juveniles does not divest the criminal courts of juris­
diction. The Arizona system merely charges juvenile judges 
to decide in the first instance whether to “suspend criminal 
prosecution” or to allow such prosecutions to proceed. Not 
until there is an actual adjudication in the juvenile court 
is the young person suspected of action constituting a crime 
free from the possibility of prosecution.

In these circumstances, it is idle to suggest that the 
lax Arizona juvenile procedures relating to notice of 
charges, right to counsel, confrontation of witnesses, and



24

the rest, can be justified on the ground that juvenile court 
actions are not “criminal.” As stated by a California court, 
the fact that delinquency involves the possible deprivation 
of liberty makes the differentiation between adult crim­
inal proceedings and juvenile civil proceedings “for all 
practical purposes . . .  a legal fiction presenting a chal­
lenge to credulity and doing violence to reason.” In re 
Contreras, 109 Cal. App. 2d 787, 789, 241 P. 2d 631, 633 
(1952).

As the Contreras case suggests, there is growing recog­
nition that “there shall be no greater diminution of the 
rights of a child, as safeguarded by the Constitution, than 
should be suffered by an adult charged with an offense 
equivalent to the alleged act of delinquency of the child.” 
Application of Johnson, 178 F. Supp. 155, 160 (D. N. J. 
1957). An increasing number of cases have held that “a 
juvenile is entitled to fundamental due process of law”. 
State v. Naylor, 207 A. 2d 1, 10 (Del. 1965). See In re 
Alexander, 152 Cal. App. 2d 458, 461, 313 P. 2d 182, 184 
(1957); Brewer v. Commonwealth, 283 S. W. 2d 702, 703 
(Ky. 1955); United States v. Morales, 233 F. Supp. 160, 167 
(D. C., Mont., 1964); In re Contreras, supra. The underly­
ing basis for these holdings has been set forth in Trimble 
v. Stone, 187 F. Supp. 483, 485-86 (D. D. C. 1960):

“The fact that the proceedings are to be classified as 
civil instead of criminal, does not, however, necessarily 
lead to the conclusion that constitutional safeguards 
do not apply. It is often dangerous to carry any propo­
sition to its logical extreme. These proceedings have 
many ramifications which cannot be disposed of by de­
nominating the proceedings as civil. Basic human



25

rights do not depend on nomenclature. What if the 
jurisdiction of the Juvenile Court were to be extended 
by an Act of Congress to the age of twenty-one or even 
twenty-five, or what if it were to be reduced to sixteen ? 
Could it be properly said that the constitutional safe­
guards would be increased or diminished accordingly?

“Manifestly the Bill of Rights applies to every indi­
vidual within the territorial jurisdiction of the United 
States, irrespective of age. The Constitution contains 
no age limits.”

In short, there is growing recognition of the importance 
of providing juveniles with the protection of the Consti­
tution.16 As stated in In re Poff, 135 F. Supp. 224, 225, 
227 (D. D. C. 1955), the original purpose of the juvenile 
court movement was “to afford the juvenile protections in 
addition to those he already possessed . . .  to enlarge, not 
to dimmish those protections.” (Emphasis in original.)

This Court in effect recognized the constitutional dimen­
sions of the problem in Kent v. United States, 383 U. S.

16 Dembitz, Ferment and Experiment in New York: Juvenile 
Cases in The New Family Court, 48 Cornell L. Q. 499 (1963); 
Keteham, Legal Renaissance in the Juvenile Court, 60 Nw. U. L. 
Rev. 585 (1965);  Antieau, Constitutional Rights in Juvenile Courts, 
46 Cornell L. Q., 387 (1961) ; Paulsen, Fairness to the Juvenile 
Offender, 41 Minn. L. Rev. 547 (1957) ; Rubin, Protecting the Child 
in the Juvenile Court, 43 J. Crim. L. C. and P. S. 425 (1952) • 
Welch, Delinquency Proceedings—Fundamental Fairness for the 
Accused in a Quasi-Criminal Forum, 50 Minn. L. Rev. 653 (1966) ; 
Beemsterboer, The Juvenile Court—Benevolence in the Star Cham­
ber, 50 J. Crim. L. C. and P. S. 464 (1960) ; Skoler, Juvenile Courts 
and Young Lawyers, 10 The Student Law. J. 5 (Dee. 1964) ; Quick, 
Constitutional Rights in the Juvenile Court, 12 How. L. J. 76 
(1966).



26

541 (1966). Although the Court did not reach petitioner’s 
specific constitutional claims, it stated with respect to the 
determination of waiver of juvenile court jurisdiction:

“ [T]here is no place in our system of law for reaching 
a result of such tremendous consequences without cere­
mony—without hearing, without effective assistance of 
counsel, without a statement of reasons.” 383 U. S. at 
554.

Due process for juveniles is particularly necessary in a 
time of an increasing juvenile population. With full ap­
preciation of the high stakes in these proceedings both from 
the standpoint of the child himself and from that of society 
in preventing the permanent loss of a law abiding citizen, 
Judge Midonick of the New York Family Court said in 
In re Ronny, 40 Misc. 2d 194, 210; 242 N. Y. S. 2d 844, 
860-61 (Family Ct. 1963):

“I can think of few worse examples to set for our 
children than to visit upon children what would be, 
if they were older, unreasonable and unconstitutional 
invasions of their all-too-limited privacy and rights, 
merely because they are young. . . .  We would do 
well to stand solidly in behalf of children before us 
to avoid contamination of the fact sources and to 
see to it that we brook no shabby practices in fact­
finding which do not comport with fair play. We 
must not only be fa ir; we must convince the child . . . 
that the judge, a parent image, is careful to ensure 
those civilized standards of conduct toward the child 
which we expect of the child toward organized society.17

17 This view has been supported by other judges with long ex­
perience in juvenile courts. “The example of a juvenile court that



27

Modern juvenile and family court acts have also been 
responsive to the fundamental unfairness of subjecting 
young people to proceedings in which their liberty is at 
stake without the procedural protections accorded adults 
in criminal trials. The Standard Juvenile Court Act, as 
well as the California Juvenile Court Law and the New 
York Family Court Act, incorporate basic due process 
requirements, such as the rights to counsel, a record of 
the proceeding and appeal.18 The new 1966 Standards 
for Juvenile and Family Courts published by the Children’s 
Bureau of the Department of Health, Education, and Wel­
fare contain express minimum requirements “as an es­
sential part of individualized justice” (p. 7) in juvenile 
courts with regard to the right to notice of charges, con­
frontation and cross-examination of witnesses, written 
findings of fact, to a record of the hearing, right to counsel 
and appeal. The HEW Standards state (p. 8):

“Certain procedural safeguards must be established for 
the protection of the rights of parents and children. 
Although parties in these proceedings may seldom make 
use of such safeguards, their availability is none the 
less important. They are required by due process

operates under the restraint of due process of law . . . may renew 
in our children the respect for law courts and the judicial process 
which is said to be on the decline.” Ketcham, Legal Renaissance in 
the Juvenile Court, 60 Nw. U. L. Rev. 585, 595 (1965).

13 NPPA, Standard Juvenile Court Act (Rev. 1959); Cal. Wel­
fare and Institutions Code §§500-914, 1961; N. Y. Family Court 
Act, 1962. §711 of the N. Y. Family Court Act provides:

“The purpose of this article is to provide a due process of law 
(a) for considering a claim that a person is a juvenile de­
linquent or a person in need of supervision and (b) for devis­
ing an appropriate order of disposition for any person ad­
judged a juvenile delinquent or in need of supervision.”



2 8

of law and are important not only for the protection 
of rights bnt also to help insure that the decisions 
affecting the social planning for children are based 
on sound legal procedure and will not be disturbed 
at a later date on the basis that rights were denied.”

There are, in sum, compelling reasons of fairness and 
authority to provide young people with fundamental pro­
cedural protections in juvenile court. Accordingly, this 
Court should rule that appellants were denied due process 
of law by the failure of Arizona to provide the basic ele­
ments of procedural fairness in this juvenile proceeding.19

19 Absence of procedural safeguards affects not only the relia­
bility of juvenile proceedings but permits arbitrary disposition 
of young people who will not “cooperate” or who are involved in 
unpopular social movements. Juveniles, for example, have com­
prised a large proportion of those who in the past decade have 
peacefully demonstrated for their civil rights and have been un­
lawfully arrested for asserting constitutionally protected rights. 
The treatment accorded these minor Negroes in juvenile courts 
demonstrates the capacity of juvenile courts to punish for reasons 
totally unrelated to their individual welfare. In one of the few 
studies of the subject, the United States Civil Rights Commission 
concluded that “ . . . local authorities used the broad definition 
afforded them by the absence of safeguards [in juvenile pro­
ceedings] to impose excessively harsh treatment on juveniles.” 
U. S. Comm’n on Civil Rights Report, Law Enforcement, 1965, 
pp. 80-83.

The place the Commission studied was Americus, Georgia where:
“Approximately 125 juveniles were arrested during the 

Americus demonstrations, and their eases disposed of in a 
unique manner. Some of them were released from jail upon 
payment of a jail fee of $23.50, plus $2 per day for food. 
These fees were paid by parents who agreed to send their 
children to relatives living in the country. No court hearing 
was held in these cases; of those juveniles who appeared in 
court (approximately 75% of those arrested) about 50 were 
sentenced to the State Juvenile Detention Home and placed 
on probation on the condition that they would not associate 
with certain leaders of civil rights organizations in Americus.

“Many juveniles arrested in Americus were detained for 
long periods of time without bail or hearing. The juvenile



29

The specific guarantees of the Bill of Bights denied appel­
lants will now be considered with particularity.

A. Notice of Charges and Hearing.

The first essential of due process, where an individual’s 
liberty is in jeojoardy, is that he be clearly informed of 
the nature of the charge against him so that he can prepare 
his defense. Further, he must be given adequate time and 
opportunity after notice of charges to decide on his course 
of action and to prepare that defense. Cole v. Arkansas, 
333 IT. S. 196 (1948). See also Ilove-y v. Elliott, 167 U. S. 
409 (1897); Powell v. Alabama, 287 U. S. 45 (1932); In re 
Oliver, 333 IT. S. 257 (1948); In re Murchison, 349 IT. S. 
133 (1955); Williams v. New York, 337 U. S. 241 (1949).

court judge explained the reason for this in Federal court: 
“If  one is bad enough to keep locked up, they’re not entitled 
to bail; and if they’re not bad enough, there’s no use to make 
them make bond.” Id. at pp. 81-82.

See also Meltsner, “Southern Appellate Courts: A Dead End” in 
Friedman (ed.), Southern Justice 152 (1965).

Although the reported decisions are few, petitions to adjudge 
minors delinquent because of peaceful and lawful civil rights ac­
tivity has been a common response in southern states. Ten minor 
Negroes were arrested in Montgomery, Alabama on April 15, 1965, 
as they were peacefully picketing a store in downtown Montgomery 
and objecting to its discriminatory hiring practices. They were 
prosecuted under an ordinance which stated that “not more than 
six persons shall demonstrate at any one time before the same 
place of business or public facility.” Although their conduct was 
orderly in every respect attempts were made to declare the chil­
dren delinquents. A federal district judge found that they were 
merely exercising a constitutionally protected right of free speech 
and assembly and dismissed the charges. In  re Wright, 251 
F. Supp. 880 (M. D. Ala. 1965). See also Florence v. Meyers, 9 
Eace Eel. L. E. 44 (M. D. Fla. 1964) (order to arrest juveniles 
on sight unlawful; injunction granted) ; Griffin v. Hay, 10 Eace 
Eel. L. Ee. I l l  (E. D. Ya. 1965) (order that juveniles refrain 
from protected activity unlawful; injunction granted). See gen­
erally Starrs, A Sense of Irony in Juvenile Courts, 1 Harv. Civil 
Bights—Civil Liberties L. Eev. 129 (1966).



30

In Cole, this Court spelled out the vital nature of notice:

“No principle of procedural due process is more clearly 
established than that notice of the specific charge, and 
a chance to be heard in a trial of the issues raised by 
that charge . . . are among the constitutional rights 
of every accused in a criminal proceeding in all courts, 
state or federal.” 333 U. S. at 201.

Notice, to be fully effective, must contain at least three 
ingredients: (1) it must state what acts are complained 
of; (2) it must state what statute or applicable rule of law 
such acts violate; and (3) it must give some indication of 
the consequences of a finding against the accused. All of 
these were absent in the proceedings below.

No official notice of the nature of the imminent hearings 
was given to appellants. In the most casual fashion, and 
only after she requested the information, was Mrs. Gault 
orally informed by officer Flagg on the night of June 8th 
that Gerald had been detained that afternoon and that a 
hearing would be held the very next day (R. 29). The only 
written notice of any kind appellants ever received was con­
tained in a handwritten note on blank paper addressed to 
Mrs. Gault and received from probation officer Flagg on 
Friday, June 12th. It merely stated that Judge McGhee 
had set Monday, June 15th, as the time “for further hear­
ings on Gerald’s delinquency” (R. 78).

No effective notice of the underlying basis for the charge 
of delinquency was given to appellants. This worked se­
verely to appellants’ prejudice. Judge McGhee testified 
that he based his adjudication of delinquency in part on a 
finding that Gerald had violated Ariz. Rev. Stats. §13-377, 
the obscene language provision of the Arizona Criminal



31

Code20 (R. 61-63). Yet this statute was never cited to ap­
pellants.

Indeed, the petition filed with the court on June 9th by 
probation officer Flagg recited only that he was informed 
and believed that “said minor is a delinquent minor and 
that it is necessary that some order be made by the Honor­
able Court for said minor’s welfare” (R. 80).21 But even 
this totally inadequate notice of the basis of the proceedings 
was not given to appellants. They never even saw the 
petition on which the adjudication of the delinquency of 
their son was based until after the decision had been made.22

Thus appellants’ attention was never called to any stat­
ute or statutory language which might have given them

20 Section 13-377 provides : “A person who, in the presence or 
hearing of any woman or child, or in a public place, uses vulgar, 
abusive or obscene language, is guilty of a misdemeanor punishable 
by a fine of not less than five nor more than fifty dollars, or by im­
prisonment in the county ja.il for not more than two months.”

21 The petition gave no indication that an adjudication of de­
linquency was sought under Section 8-201-6 (a) of the Arizona 
Statutes, which defines “delinquent child” as a “child who has 
violated a law of the state or an ordinance or regulation of a 
political subdivision thereof.” Nevertheless, Judge McGhee testi­
fied that this provision formed part of the bases for his decision. 
The Arizona statute (§8-222) provides that such a petition, con­
taining a igeneral allegation of delinquency (without stating the 
facts supporting the allegations), is sufficient, but the clear trend 
of current legislation is to require specificity in such pleadings 
which are jurisdictional prerequisites to juvenile court action. Cf. 
N. Y, Family Ct. Act, Sec. 731; Cal. Welfare and Institutions 
Code, Secs. 653, 656; Natl. Probation and Parole Assoc., Standard 
Juvenile Court Act, Sec. 12.

22 The Arizona court appears to have held that in the future, a 
copy of this petition must be given to the infant and his parents 
(407 P. 2d at 767; R. 92). The failure even to serve the con- 
clusory petition in this ease on appellants points up the procedural 
unfairness to which they were subjected.



32

some guidance as to what the charge of delinquency was 
based on, or how to prepare a legal defense to it, or even 
how to decide intelligently whether to contest it at all. 
Nothing brought home to them the advisability of consult­
ing with or retaining counsel, or impressed on them the 
potential seriousness of the proceedings for their son as 
evidenced by the drastic sanction later imposed by the court.

Even the minimal standards required by the Arizona stat­
ute with regard to notice of delinquency charges as inter­
preted by the Arizona Court, i.e., that it is sufficient if 
the court advises the parents no later than the hearing 
itself about “the facts involved in the case” (407 P. 2d at 
767; R. 92), were not satisfied in this case. As stated by 
Judge McG-hee, his finding of juvenile delinquency was 
based not only on the boy’s use of lewd language (R. 61), 
but also on the boy’s “habitual involvement in immoral 
matters,” based on a referral report in the probation file 
which had never led to an accusation or hearing (Ibid.). 
The parents never had notice of this report, even at the 
hearings held in this case, and had no opportunity to deny 
those charges or defend against them. As to this basis for 
the adjudication of delinquency, there was simply no notice 
and no opportunity to be heard at all.

Finally, the time allowed to appellants to prepare their 
case was extremely short. For the first hearing from 
8 o’clock at night until 3 o’clock the next day; for the sec­
ond hearing from Friday afternoon until Monday morning 
at 11 o’clock. The Arizona court contented itself with 
adopting the rule that “If the charges are denied, they 
[the infant and his parents] must be given a reasonable 
time to prepare” (407 P. 2d at 767; R. 92). The court 
failed to recognize that reasonable time is necessary not



33

merely to prepare denials and defenses but to decide 
whether to deny or defend at all. It was unfair in this 
case, in the scanty time afforded them before the hearings, 
to make an intelligent decision on how best to proceed in 
their son’s interest, especially in the absence of the advice 
of counsel.

The Arizona court’s interpretation of adequate notice 
does not satisfy due process. As long as the specific alle­
gations on which the charges are based are not communi­
cated to the infant and his parents in writing before the 
hearing, there is no possibility of determining intelligently 
whether to admit or contest the charges. A reasonable 
time to prepare and contest the charges is required after 
full notice and opportunity for appraisal of all facts.

This particular requirement of due process is especially 
vital in juvenile proceedings. In the words of one com­
mentator,

“As of constitutional right . . .  a child brought before 
a juvenile court is entitled to a clear statement of the 
nature and cause of the proceedings against him so 
that he can prepare his defense. Since many children 
will be unable to comprehend the accusation, this right 
must, of necessity, belong also to the child’s parents or 
guardians.” Antieau, Constitutional Rights in Juve­
nile Courts, 46 Cornell L. Q. 387, 395 (1961).23

23 See also Paulsen, op. cit. at 557; Guidebook for Judges, pre­
pared by the Advisory Council of Judges of the National Council 
on Crime and Delinquencjq p. 10 and Standards for Juvenile and 
Family Courts, prepared by the U. S. Department of Health, Edu­
cation and Welfare, 1966; Application of Johnson, 178 F. Supp. 
155 (D. N. J. 1957); In  re Florance, 47 Cal. 2d 25, 300 P. 2d 
825 (1956); In  re Creely, 70 Cal. App. 2d 186, 190, 160 P. 2d 
870, 872 (1945) ; In  re Coyle, 122 Ind. App. 217, 101 N. E. 2d 192



34

B . T he R ight to Counsel.

In both juvenile hearings appellants and their son ap­
peared without counsel. Neither appellants nor their son 
were informed that they had a right to counsel or that 
they would be provided with counsel in case of need. The 
Arizona court stated that “parents of an infant cannot be 
denied representation by counsel of their choosing” but 
nevertheless went on to hold that due process does not re­
quire “that an infant have a right to counsel” (407 P. 2d 
at 767; E. 92-93).

The denial of the right of counsel in this case is in­
consistent with minimal standards of procedural fairness. 
It denies the most basic procedural right, without which all 
other procedures in juvenile courts and all other rights 
ostensibly given in such proceedings are unsubstantial and 
incapable of effective implementation.

The decision below on this point also flies in the face 
of principles painstakingly and deliberately elaborated 
by this Court over many years. Powell v. Alabama, 287 
U. S. 45 (1932) and Gideon v. WainwrigJit, 372 U. S. 335 
(1963), have established that the right to counsel in crimi­
nal proceedings is an essential part of the Fourteenth 
Amendment’s due process clause. Together they also 
establish that no distinction may constitutionally be drawn 
between the right to appear by retained counsel and the 
right to have counsel appointed in criminal proceedings.

(1951); Petition of O’Leary, 325 Mass. 179, 182, 89 N. E. 2d 769, 
771 (1950) ; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S. W. 
1028 (1914); State v. Andersen, 159 Neb. 601, 68 N. W. 2d 146 
(1955) ; In  re Both, 158 Neb. 789, 64 N. W. 2d 799 (1954) ; In  re 
Poulin, 100 N. H. 458, 459, 125 A. 2d 672, 673 (1957); Matter of 
Solberg, 52 N. D. 518, 203 N. W. 898 (1925); Pettit v. Engelking, 
260 S. W. 2d 613 (Tex. Civ. App. 1953).



35

“ . . . [I]n our adversary system of criminal justice,” the 
Court said in Gideon, “any person hailed into court, who 
is too poor to hire a lawyer, cannot be assured a fair trial 
unless counsel is provided for him.” 372 IT. S. at 344.

Even if juvenile proceedings are denominated “civil” in 
nature, the fact that a juvenile may be deprived of his 
liberty through an adjudicatory process in which the aid 
of counsel would be indispensable to him requires the ap­
plication of the Powell and Gideon principles in such 
proceedings.

Just last term in Kent v. United States, 383 IT. S. 541 
(1966), the Court held that assistance of counsel in the 
“critically important” determination of waiver of jurisdic­
tion by a juvenile court is essential to the proper adminis­
tration of justice. Indeed, this Court in Kent, explicitly 
approved Black v. United States, 355 F. 2d 104 (D. C. Cir. 
1965), and Shioutakon v. District of Columbia, 236 F. 2d 
666 (D. C. Cir. 1956), which had gone further and “held 
that effective assistance of counsel in juvenile court pro­
ceedings is essential.” 383 IT. S. at 558. Although these 
cases did not involve the Fourteenth Amendment directly, 
since they all arose in the District of Columbia, the con­
siderations upon which they are based apply as well to 
juvenile proceedings in state courts.24

A juvenile proceeding involving a determination of 
delinquency carries with it sufficient social stigma and 
danger of deprivation of liberty that it must be considered

24 In Kent, the Court did not involve itself only in a problem of 
statutory construction. The decision explicitly addressed itself to 
“the basic requirements of due process and fairness, as well as 
compliance with the statutory requirement of a ‘full investiga­
tion.’ ” 383 U. S. at 553.



36

a “critical stage” in the same sense as that term was used 
not only in Kent, but also in Hamilton v. Alabama, 368 
U. S. 52 (1961), and White v. Maryland, 373 U. S. 59 (1963), 
which required appointment of counsel in adult criminal 
proceedings prior to the trial itself.25

White, Hamilton, and Miranda related not to the trial 
stage but to stages in the criminal process prior to trial. 
By contrast, the issue in the case at bar is whether due 
process requires the assistance of counsel at the trial 
itself, a stage of the juvenile process, needless to say, 
which is not merely “critical,” but its very essence. I t is 
the central fact-finding inquiry, where the determination 
is made whether the accused juvenile committed the acts 
charged. The resolution of this inquiry determines whether 
the juvenile will be denominated a juvenile delinquent and 
possibly deprived of his liberty.26

The decision whether the due process clause of the 
Fourteenth Amendment requires the assistance of counsel 
in juvenile fact-finding proceedings requires essentially the 
same determination made in Gideon that counsel is required 
in an adult criminal trial—the proceeding whose purpose 
and function, i.e., to find the facts, is identical with the 
adjudicatory hearing stage in juvenile proceedings.27

25 Similarly, in Miranda v. Arizona, 384 U. S. 436 (1966), the 
right to counsel was recognized in the stage of custodial interroga­
tion in order to insure the protection of the Fifth Amendment 
privilege against self-incrimination. 384 U. S. at 467.

26 Since an adjudication of delinquency can also, as it did in 
this case, deprive parents of the custody of their child, the familial 
relationship suffers impairment. That relationship too is a sub­
stantial interest of the person which deserves the protection against 
arbitrary abridgement afforded by the right to counsel.

27 The fact that the finder of facts may be a jury  in one case, 
and a judge in the other, is of course irrelevant. Waiver of a jury



37

The decision in Gideon turned on the indispensable role 
performed by counsel in the fact-finding process. This 
Court quoted at length from Powell v. Alabama, 287 U. S. 
45, 68-69 (1932), to describe that role:

“The right to be heard would be, in many cases, of little 
avail if it did not comprehend the right to be heard 
by counsel. Even the intelligent and educated layman 
has small and sometimes no skill in the science of law. 
If charged with crime, he is incapable, generally, of 
determining for himself whether the indictment is 
good or bad. He is unfamiliar with the rules of evi­
dence. Left without the aid of counsel he may be put 
on trial without a proper charge, and convicted upon 
incompetent evidence, or evidence irrelevant to the 
issue or otherwise inadmissible. He lacks both the 
skill and knowledge adequately to prepare his defense, 
even though he have a perfect one. He requires the 
guiding hand of counsel at every step in the proceed­
ings against him. Without it, though he be not guilty, 
he faces the danger of conviction because he does not 
know how to establish his innocence.”

This Court has also recognized in other cases the criti­
cal role played by counsel. “ [E]ven in the most routine- 
appearing proceedings the assistance of able counsel may 
be of inestimable value.” Reynolds v. Cochran, 365 U. S. 
525, 532-533 (1961). “ [T]he labyrinth of the law is, or may 
be too intricate for the layman to master.” Chewning v.

trial in adult criminal proceedings has no bearing whatever on 
the right to counsel requirement, any more than it does on the 
other due process requirements of a fair trial such as fair notice, 
confrontation and cross-examination, and the right to the protec­
tion of the privilege against self-incrimination.



Cunningham, 368 U. S. 443, 446 (1962). See also Williams 
v. Kaiser, 323 U. S. 471 (1945).28

To say that the juvenile judge can fully protect the 
accused juvenile’s interests is no more true in juvenile 
proceedings than in adult proceedings, no matter how de­
liberately the judge may discharge his duty as the embodi­
ment of the parens patriae. As this Court said in Powell v. 
Alabama, supra, 287 IT. S. at 61, although the judge may 
see to it that the accused “be dealt with justly and fairly,” 
he cannot “investigate the facts, advise and direct the de­
fense, or participate in those necessary conferences be­
tween counsel and accused which sometimes partake of 
the inviolable character of the confessional.” Indeed, there 
is far less warrant to rely on a judiciary, one-fifth of whose 
members are not even lawyers and more than half of whom 
devote less than one-fourth of their time to juvenile and 
family matters.29

28 As previously pointed out, the adjudication of Gerald Gault’s 
delinquency rested in part on the finding that he had violated a 
section of the Arizona Criminal Code, §13-377, and was thus a 
“delinquent child” under §8-201-6 (a) as having violated a law of 
the state. Some difficult and debatable problems arose in this case, 
as they commonly do in criminal prosecutions—for example, was 
the language allegedly used by the boys “obscene” within the 
meaning of the Arizona obscene language statute, and could Gerald 
Gault be found to be an aider and abettor of the other boy, who 
apparently spoke all or the greater part of the words in question ? 
These are hardly questions with which a layman, much less a 
fifteen-year old juvenile, can be expected to grapple unassisted. 
That they never actually were raised during Gerald’s hearings— 
although they are obvious on the face of the record—is plainly 
attributable to the absence of counsel.

29 Biographical Data Survey of Juvenile Court Judges, George 
Washington University, Center of Behavioral Sciences, 10, 21 
(1964). McCune & Skoler, Juvenile Court Judges in the United 
States, 11 Crime and Delinquency 121 (1965), puts the figure as 
one quarter non-lawyers.



39

The majority of legal writers,30 federal and state court 
decisions,31 and modern juvenile codes, such as in Cali­
fornia and New York,32 have taken the position that the 
right of a child and his parents to the assistance of counsel 
in a juvenile proceeding is founded in due process. Follow­
ing this trend, the Supreme Court of Mississippi, in Inter­
est of Long, 184 So. 2d 861, 862 (1966) recently ruled:

“Where a minor is charged with being a delinquent and 
is subject to being deprived of his liberty, minor and 
parent should be advised by the court in delinquency 
proceedings that they are entitled to legal representa­
tion.”

Mr. Schinitsky, op. cit. footnote 30, 17 The Record at 
p. 22, offers an example (drawn from a survey of the 
experience in the New York Children’s Court prior to 
adoption of that state’s new Family Court Act) of the 
tangible difficulties confronting a juvenile court judge where 
the juvenile is unrepresented by counsel:

“As already stated, in 92% of the Children’s Court 
hearings, counsel is not present to participate in its 
proceedings. This means the judge must examine all 
witnesses. To the conscientious judge this is a physi-

30 Ketcham, Legal Renaissance in the Juvenile Court, 60 Nw. 
U. L. Rev. 585, 589, 593; Paulsen, op. cit. at 568; Antieau, op. 
cit. at 404; Schinitsky, The Role of the Lawyer in Children’s 
Court, The Record (The Association of the Bar of the City of New 
York), Vol. 17, No. 1, January 1962, pp. 10-26.

31 In  re Doff, 135 F. Supp. 224 (D. D. C. 1955); Shioutakon v. 
District of Columbia,, supra; Black v. United, States, supra.

32 Cal. We If. and Inst. Code, Sec. 679; N. Y. Family Ct. Act, 
Sec. 241, 741; Nat. Prob. and Parole Assoc., Standard Juvenile 
Court Act, Sec. 19.



40

eally and mentally exhausting task when it is repeated 
ten or fifteen times a day. Unfamiliar with the case 
until the hearing is commenced and with only the peti­
tion before it, the Court must grope and seek through 
its questioning a full and complete factual picture so 
that its decision can be right and just. Quite often the 
task is made more difficult by a language difficulty, 
the limited intelligence of witnesses or respondents and 
the reticence or fear of the children involved. One 
such judge remarked to the writer, after extensive 
questioning in a delinquency hearing and a dismissal 
of the petition, that it was sheer luck that she had 
asked the question which when answered placed an 
entirely different light on the case. Such a question 
would have most assuredly been propounded had there 
been an attorney-client relationship instead of the 
court-respondent one. The margin of error in an ad­
judication is enlarged when the judge is neither dedi­
cated, patient nor an experienced examiner.
When a respondent denies the allegations in a peti­
tion, the only means of testing the truth of the peti­
tioner’s story is by subjecting it to the light of cross 
examination. Cross examination is not the haphazard 
pointless propounding of questions. To the experi­
enced examiner it is a questioning based upon a 
foundation of facts obtained from consultation with 
his client.
To say that the Children’s Court judge, dedicated or 
otherwise, can represent both petitioner and respon­
dent in a disputed issue is unrealistic. The principal 
function of a presiding judge during the course of a 
trial is to conduct it in a fair and impartial manner.



41

If compelled to take on the roles of prosecutor and 
defense attorney in addition, there may be the human 
tendency at times for him to overzealously associate 
himself with one of the added roles to the detriment 
of his impartiality.”

To the argument made by some judges, social workers 
and lawyers that the introduction of lawyers into juvenile 
proceedings would make the proceedings legalistic, over- 
technical and argumentative, would prolong the hearings, 
create a chaos of crowded dockets, and introduce dilatory 
tactics with dismissal of the charges uppermost in the de­
fense lawyer’s mind, Mr. Sehinitsky replied (Id. at p. 24):

“The desire for a smoothly operating court should not 
be used as an argument to deprive those accused of 
the right to determine for themselves their need for 
counsel. An essential function of the court is to estab­
lish an atmosphere of fairness in its dealings with 
those persons appearing before it. Vital to the crea­
tion of this atmosphere is that an accused parent or 
child, without funds, know they may have counsel to 
guide them through their difficulty.”

The study made by the U. S. Department of Health, 
Education & Welfare in cooperation with the National 
Council on Crime and Delinquency and the National 
Council of Juvenile Court Judges has likewise concluded 
that:

“As a component part of a fair hearing required by 
due process guaranteed under the 14th Amendment, 
notice of the right to counsel should be required at all 
hearings and counsel provided upon request when the



42

family is financially unable to employ counsel.” U. S. 
Department of Health, Education and Welfare, Chil­
dren’s Bureau, Standards for Juvenile and Family 
Courts, op. cit., supra, p. 57.

The need for counsel in juvenile court proceedings such 
as those in the present case is accentuated because of the 
wide discretion of the juvenile coui'ts of Arizona in deal­
ing with juveniles they have adjudicated delinquent. The 
authority of the court over a delinquent child is to “make 
such order for the commitment, custody and care of the 
child as the child’s welfare and the interests of the state 
require.” §8-231. The court has no less than 10 statutorily 
approved alternatives open to it for the disposition of de­
linquents. Ibid. The aid of a lawyer may be indispensable 
to child, parents, and court in determining the appropriate 
treatment of the child; indeed the Arizona court itself rec­
ognized this, but, paradoxically, concluded nonetheless that 
allowing the assistance of counsel to a child is a matter for 
judicial discretion, and not a due process right (407 P. 2d 
at 767; R. 93).

Finally, it goes almost without saying that if we are 
correct in our contentions that other traditional safe­
guards of the criminal law should be applicable in juvenile 
court proceedings, such as fair notice of charges and the 
rights of confrontation and cross-examination, the aid of 
counsel is also indispensable to effectuate those rights. 
Only an attorney can enable an accused juvenile to assert 
such other procedural rights as he may have. Conversely, 
even if it were to be held that juvenile court proceedings 
can constitutionally be conducted with a procedural in­
formality impermissible in adult criminal proceedings, the 
assistance of counsel becomes all the more essential. It



43

then may be the only way to keep the adjudicatory hearing 
in the juvenile court from becoming a sham and a mere 
rubber stamp for the charges made against the juvenile.33

C. C onfrontation and Cross-exam ination.

In Pointer v. Texas, 380 U. S. 400 (1965), this Court 
unanimously held that the Sixth Amendment guarantee of

83 Mrs. Gault’s statement in the habeas corpus proceeding that 
she knew that she could have appeared with counsel at the juvenile 
hearing (R. 40) for a number of reasons cannot be considered 
an intelligent waiver of either the child’s or appellants’ own con­
stitutional right to counsel under Carnley v. Cochran, 369 U. S. 
506 (1962), and Fay v. Noia, 372 U. S. 391 (1963) : (1) The Ari­
zona court merely found that the Gaults “knew of their right 
to counsel.” 407 P. 2d at 763 (R. 85). At most, therefore, the 
Gaults could have waived only their right to appear by retained 
counsel. But we are contending that there is also a due process 
right to appointed counsel in these proceedings. This right could 
not have been waived, since the Gaults were never told they had 
it and indeed the Arizona court held that it does not recognize 
such a right. Therefore there could be “no intentional relinquish­
ment or abandonment of a known right” by appellants, Johnson 
v. Zerbst, 304 U. S. 458, 464 (1938). (2) As we have shown, 
appellants had not received notiee of the nature and the breadth 
of the charges against their son which apparently included, be­
sides the allegedly obscene telephone call, being “habitually in­
volved in immoral matters” ; they had no way to evaluate their 
need for an attorney; (3) the judge’s favorable comments about 
appellants’ son (R, 66) and his inconclusive answer after the first 
hearing to the question whether Gerald would be committed (R. 31) 
gave them a false sense of security prior to the second hearing 
and the judge’s decision to commit their son to the State Industrial 
School without further warning or investigation of their home 
situation; (4) since appellants had been told by Judge McGhee 
that they had no right to have the complaining witness Mrs. Cook 
present to testify at the hearings (R. 65-66), it was understandably 
difficult for them to appreciate how an attorney might assist them; 
if, as we contend, the right of confrontation and cross-examina­
tion should have been afforded them, they would be entitled to 
consider their need for an attorney on the basis of full knowledge 
of their legal rights and could not be held to have waived an at­
torney’s assistance without such knowledge. Cf. Von Moltke v. 
Gillies, 332 U. S. 708 (1948).



44

confrontation and cross-examination applies in State pros­
ecutions under the due process clause of the Fourteenth 
Amendment. In reaching that result, the Court recognized 
the indispensable role played by confrontation and cross- 
examination “in exposing falsehood and bringing out the 
truth.” 380 U. S. at 404. Few rights are more central to 
the idea of fair judicial proceedings:

“ . . . [T]he right of confrontation and cross-examina­
tion is an essential and fundamental requirement for 
the kind of fair trial which is this country’s constitu­
tional goal.” 380 U. S. at 405.

The requirement of confrontation and cross-examination 
is one of the most vital and lasting contributions of Anglo- 
American law to the attainment of a reliable fact-finding 
proceeding. See McKay, The Eight of Confrontation, 1959 
Wash. IT. L. Q. 122, 123-25. As Professor Wigmore has 
said:

“ [T]hat the judge shall have the power to commit to 
long detention any person without giving the person 
any opportunity to hear the substance of the testimony 
against him, is fundamentally unsound and practically 
dangerous.” 5 Wigmore, Evidence '§1400 at 145 (3d 
ed., 1940). (Emphasis in original.)

In Wigmore’s famous statement:
“For two centuries past, the policy of the Anglo- 
American system of Evidence has been to regard the 
necessity of testing by cross-examination as a vital 
feature of the law. The belief that no safeguard for 
testing the value of human statements is comparable 
to that furnished by cross-examination, and the con­



45

viction that no statement (except by special exception) 
should be used as testimony until it has been probed 
and sublimated by that test, has found increasing 
strength in lengthening experience . . . [lit is beyond 
doubt the greatest legal engine ever invented for the 
discovery of truth.'’ 5 Wigmore, Evidence §1367 at 
28-29 (3d ed. 1940). (Emphasis added.)

The rule is clear: absent confrontation and cross-exami­
nation there can be no fair or reliable determination of 
truth sufficient to comply with the requirements of due 
process.

It cannot seriously be contended that the right of con­
frontation and cross-examination is applicable only in a 
criminal proceeding as traditionally defined. Regardless of 
whether juvenile proceedings are denominated criminal or 
civil in nature, the result must be the same, for this Court 
has clearly held that the right of confrontation and cross- 
examination applies not only in criminal cases, but to ad­
judicatory administrative proceedings as well. Greene v. 
McElroy, 360 IJ. S. 474 (1959); Willner v. Committee on 
Character Fitness, 373 U. S. 96 (1963); Williams v. 
Zuchert, 371 U. S. 531 (1963) (certiorari dismissed on 
grounds that petitioner failed to comply with procedure 
for exercising right to confront witnesses). The rationale 
of Greene demonstrates the necessity for broad application 
of the confrontation and cross-examination rule:

“Certain principles have remained relatively immutable 
in our jurisprudence. One of these is that where gov­
ernmental action seriously injures an individual, and 
the reasonableness of the action depends on fact find­
ings, the evidence used to prove the Government’s case



46

must be disclosed to the individual so that he has an 
opportunity to show that it is untrue. . . .  We have 
formalized these protections in the requirements of 
confrontation and cross-examination. They have an­
cient roots. . . . This Court has been zealous to protect 
these rights from erosion . . . not only in criminal 
cases . . . but also in all types of cases where admin­
istrative and regulatory actions were under scrutiny.” 
360 U. S. at 496-97 (citations omitted).

Furthermore, since the right to confront and cross- 
examine is essential to the fairness of any judicial pro­
ceeding, such right should be available even in a proceed­
ing deemed to be civil in nature. See McKay, supra at 129. 
Surely a judicial order which causes the deprivation of 
personal liberty is at least the equivalent of governmental 
action which “seriously injures an individual,” and results 
in harm at least as grievous as arbitrary denial or termi­
nation of employment.

The right of the child in juvenile proceedings to con­
front and cross-examine those who bear witness against 
him is being increasingly recognized. Numerous courts 
have held that this constitutional requirement is applicable 
and essential. People v. James, 9 N. Y. 2d 82, 211 N. Y. S. 
2d 170,172 N. E. 2d 552 (1961); In Re M ant ell, 157 Neb. 900, 
62 N. W. 2d 308, 43 A. L. R. 2d 1122 (1954); Ballard v. 
State, 192 S. W. 2d 329 (Tex. Civ. App. 1946); Green v. 
State, 123 Ind. App. 81, 108 N. E. 2d 647 (1952). In People 
v. James, the New York Court of Appeals ruled that,

“Elementary principles of justice would seem to require 
that in this situation the testimony of the mother [in 
this case an adversary of the child] should have been



47

tested by some form of cross-examination before the 
defendant minor was deprived of Ms liberty.” 9 N. Y. 
2d at 87, 211 N. Y. S. 2d at 174, 172 N. E. 2d at 555.

Moreover, officials who must deal daily with the prob­
lems of juvenile courts and procedures have similarly urged 
that the right of the child to confront and cross-examine 
the witnesses be accorded. See National Council on Crime 
and Delinquency, Standard Family Court Act, Comments 
to §19 (1959); Department of Health, Education and Wel­
fare, Standards for Juvenile and Family Courts, supra 
at 7 (1966).

As the facts of this case demonstrate, the determination 
of delinquency in a juvenile court proceeding is of critical 
consequence and the need for procedures guaranteeing its 
reliability substantial.

The adjudication of Gerald Gault’s delinquency on 
the basis of his alleged participation in an allegedly 
obscene telephone call was made without any consideration 
of the testimony of the recipient of the call, the complain­
ing witness Mrs. Cook. The request of appellants for 
Mrs. Cook’s appearance at the hearings was denied by 
Judge McGhee because he “didn’t feel it was necessary” 
(E. 65-66). Indeed, Judge McGhee, the trier of fact in this 
case, did not even elicit Mrs. Cook’s version of what had 
happened either in or out of the presence of appellants 
(E. 49, 76). It is an extraordinary procedural notion that 
an adjudication that a person can be deprived of his liberty 
without the trier of fact even hearing the testimony of the 
alleged victim, especially when the victim is readily ame­



48

nable to the processes of the court.34 Cf. Pointer v. Texas, 
380 U. S. 400 (1965). Furthermore, in the light of the 
testimony of probation officer Flagg to the effect that 
Gerald Gault had not admitted to him making any lewd 
or indecent remarks over the telephone but said the other 
boy engaged in the conversation (R. 59), the testimony of 
the complaining witness Mrs. Cook became even more es­
sential. Had she been called as a witness, appellants could 
have attempted to show that Gerald had not used any 
offensive language toward her. Indeed, the court would 
have had a proper basis for ascertaining the exact nature 
of the entire incident, what in fact was said and who said it.

The following passage aptly describes the vital elements 
of due process which were denied to appellant:

“In a society that long ago deliberately rejected the 
inquisitorial method and freely chose the alternative 
of confrontation and cross-examination by adversary 
counsel in its search for the truth, there is neither 
justification nor excuse for the deprivation of liberty 
to a single child when supported only by the utterances 
not under oath of persons never subjected to court­
room confrontation and cross examination. . . . [A] 
youth must be given the right to confront and cross­

34 The subpoena power over Mrs. Cook was available under 
§8-224, although appellants were never advised of it by the court. 
In  view of their request for Mrs. Cook’s appearance and the fact 
that they were unrepresented by counsel at the hearings, they 
obviously cannot be held to have waived their right of confronta­
tion and cross-examination in this case.



49

examine those who would prove Mm a delinquent.” 
Antieau, Constitutional Rights in Juvenile Courts, 46 
Cornell L. Q. 387, 403 (1961). (Emphasis added.)

The Arizona Court, however, took the curious view that 
“the relevancy of confrontation only arises where the 
charges are denied.” (407 P. 2d at 768; R. 93.) Similarly, 
Judge McGhee explained that no adult witnesses were heard 
or sworn and he did not talk to Mrs. Cook personally, since 
he had the “admissions” of the boys to go on (R. 65).

This attitude turns topsy-turvy the concept of the juve­
nile hearing as an adjudicatory proceeding to determine 
the facts based on evidence. It in effect treats the hearing 
as an inquisition of the accused to determine whether, 
without hearing any of the evidence against him and with­
out the advice of counsel, he will relieve the persons who 
made the charges against him of any obligation to support 
them by testimony. The purposes served by the right of 
confrontation and cross-examination—so important to the 
proper performance of the court’s fact-finding functions— 
are thereby thwarted.35

35 Confrontation and cross-examination would rarely become 
“relevant” in the sense used by the Arizona Court under such a 
system. And it appears that this attitude in fact has the dan­
gerous consequence of reducing the adjudicatory hearing to an 
insubstantial stage in the juvenile court process. As a former 
Arizona juvenile court judge has written :

“In the usual juvenile hearing, the phase devoted to determin­
ing whether an act of delinquency has occurred (any viola­
tion of criminal law or ordinance) takes the minor portion 
of the hearing. By reason of the pre-hearing investigation, 
and the frank, or semi-frank attitude of the boy and his 
parents the essence of the law violation involved is usually 
quickly grasped by all present.”

“This court always took the view that it should take as much 
evidence to adjudicate a child or delinquent as it would to



50

As we show in the next section of this Brief, this attitude 
also resulted in this case in the violation of Gerald Gault’s 
privilege against self-incrimination.

D. T he Privilege A gainst Self-Incrim ination.

Gerald Gault was found to have committed a crime under 
the law of Arizona, a violation of Section 13-377 of the 
Arizona Statutes (R. 62)36 and his commitment by the 
court rested in part on that finding (Ibid.).

There can be no dispute that admissions of the elements 
of this offense were elicited from him under questioning 
by the court at the hearings of June 9 and June 15. In­
deed, his own statements were decisive in the court’s 
decision to commit him. Judge McGhee described in detail 
his questioning of Gerald Gault at these hearings (R. 56- 
60). He further testified:

“Q. Were any adult witnesses sworn and/or heard 
against the boy Gerald Gault? A. No. It was all, in 
my mind, done upon the admissions of Gerald Gault” 
(R. 65; see also R. 76).

No advice was given by the court to Gerald that he did 
not have to testify or make a statement unless he chose to

convict a child in a criminal court. The court was of the 
opinion that police agencies should present just as much evi­
dence in a juvenile court as they do in the adult court, i f  it 
becomes necessary to do so. But this writer saw no point in 
spending valuable public funds in long and tedious hearings 
i f  the child admitted that verified police reports were correct.” 
Molloy, Juvenile Court— A Labyrinth of Confusion for the 
Lawyer, 4 Ariz. L. Rev. 1, 9, 14 (1962) (emphasis supplied).

36 Section 13-377, which is set forth in the Appendix, is part of 
the “Criminal Code” of Arizona and appears in the “Disorderly 
Conduct” portion of the Code in a chapter entitled “Crimes of a 
Common Law Nature.” See also the definition of “crime” in Sec­
tion 13-101.



51

do so. The Supreme Court of Arizona upheld this pro­
cedure, holding that the juvenile court is not required to 
advise a juvenile of the privilege against self-incrimina- 
tion. (407 P. 2d at 767-68; R. 93.)

Under familiar principles governing the privilege against 
self-incrimination, this course of proceedings violated 
Gerald Gault’s Fourteenth Amendment rights.37 With re­
spect to the privilege it is entirely immaterial once again 
whether a juvenile court proceeding is labeled criminal, 
civil, in the nature of “parens patriae,” or anything else. 
The law has long been settled that:

“The privilege can be claimed in any proceeding, be it 
criminal or civil, administrative or judicial, investiga­
tory or adjudicatory . . .  it protects any disclosures 
which the witness may reasonably apprehend could be 
used in a criminal prosecution or which could lead to 
other evidence that might be so used.” Murphy v. 
Waterfront Commission, supra, 378 IJ. S. at 94 (con­
curring opinion of Mr. Justice White) (emphasis sup­
plied).

See also Malloy v. Hogan, supra, 378 U. S. at 11; McCarthy 
v. Arndstein, 266 U. S. 34, 40 (1924).

The relevant inquiry in determining the applicability of 
the privilege therefore is not the nature of the proceeding, 
but whether the witness may in any way incriminate him­
self by testifying or making a statement. Under the law 
of Arizona, the interrelationship between juvenile proceed­
ings and criminal prosecution is such that at the time he

37 The applicability and scope of the privilege are the same in 
state as in federal courts. Malloy v. Hogan, 378 U. S. 1 (1964); 
Murphy v. Waterfront Commission, 378 U. S. 52 (1964); Griffin 
v. State, 380 U. S. 609 (1965).



52

made Ms statements to the juvenile court, Gerald Gault 
ran the risk of furnishing evidence which could be used 
against him in a criminal prosecution for violation of Sec­
tion 13-377.

Under these circumstances and the applicable decisions 
of this Court, the state was required either to afford him 
the privilege or grant him immunity commensurate with 
the risk. It did neither.38

The point is readily demonstrated by reference to the 
Arizona law governing the relationship of juvenile pro­
ceedings and criminal prosecutions. Article 6, Section 15, 
of the Arizona Constitution provides:

“The superior court shall have exclusive original juris­
diction in all proceedings and matters affecting de­
pendent, neglected, incorrigible or delinquent children, 
or children accused of crime, under the age of eighteen 
years. The judges shall hold examinations in chambers 
for all such children concerning whom proceedings are 
brought, in advance of any criminal prosecution of 
such children, and may, in their discretion, suspend 
criminal prosecution of such children. The powers of 
the judges to control such children shall be as pro­
vided by law.” (See also Ariz. Rev. Stats. §§8-202; 
8-228.)

It is apparent that the Arizona system for handling 
juveniles does not exempt them from the criminal law or 
divest them of legal capacity to commit crimes. The crimi­
nal law remains in full force and effect in its application

38 Gerald Gault’s failure to claim the privilege specifically at his 
hearings cannot be a basis for depriving him of it, since he was 
without counsel throughout the proceedings. Nor can he be held 
to have waived his privilege, since he was never advised that he 
had it.



53

to their conduct. The constitutional and statutory scheme 
simply provides that judges of the superior courts, sitting 
as juvenile court judges, shall consider cases involving 
juveniles accused of crime in the first instance, to decide 
whether to “suspend criminal prosecution” or to allow 
criminal prosecution to proceed. And the Arizona courts 
have so held.39

The decision whether to suspend criminal prosecution is 
placed in the discretion of the juvenile courts and no stand­
ards for its exercise are prescribed by law. Application of 
Vigileos, 84 Ariz. 404, 3001 P. 2d 116 (1958); Burrows v. 
State, 38 Ariz. 99, 111, 297 Pac. 1029 (1931). The court 
may refuse to susj)end criminal prosecution whether the 
conduct charged constitutes a felony or a misdemeanor. 
See Flynn v. Superior Court, 414 P. 2d 438, 442 ( Ariz. Ct. 
App. 1966).

Furthermore, even when a juvenile court holds hearings 
on a juvenile accused of conduct constituting a crime, as 
it did in the present case, its assertion of jurisdiction over 
the juvenile is not final until it actually makes an adjudiea-

39 Application of Gault, 99 Ariz. 181, 407 P. 2d 760 (1965); 
Application of Vigileos, 84 Ariz. 404, 330 P. 2d 116 (1958). As 
the Supreme Court of Arizona has said, the Arizona juvenile court 
act “affects the treatment and not the capacity of the offender.” 
Burrows' v. State, 38 Ariz. 99, 110, 297 Pac, 1029, 1034 (1931) 
(emphasis in original).

Chief Judge Prettyman has described the operation of a ju ­
venile court system like that of Arizona:

“The original-and-exclusive jurisdiction clause, coupled with 
the waiver clause, is merely a procedural device for putting 
child offenders within the remedial treatment of the Juvenile 
Court if it appears after investigation that such investiga­
tion is in the interest of the public and of the child. The two 
courses of justice are not separate and independent systems. 
They are correlated parts of a single system. The Juvenile 
Court system is an adjunct to the general system of criminal 
justice.” Briggs v. United States, 96 U. S. App. D. C. 392, 393, 
226 P. 2d 350, 351 (1955) (emphasis supplied).



54

tion of delinquency. The filing of a petition alleging that 
the juvenile is delinquent, under Arizona Stat. -§8-222, 
merely invokes the juvenile court’s powers for the purpose 
of inquiry and investigation into how to handle the offender. 
But “ [J]urisdiction in the Juvenile Court does not attach 
until there has been an adjudication based upon evidence 
that the child is dependent, neglected, incorrigible or de­
linquent.” Caruso v. Superior Court, 100 Ariz. 167, 412 
P. 2d 463, 467 (1966). Refusal to suspend criminal prose­
cution thus remains a possible outcome of the juvenile 
court’s inquiry into the juvenile’s conduct. See Molloy, 
Juvenile Court—A Labyrinth of Confusion for the Lawyer, 
4 Ariz. L. Rev. 1, 11 (1962).40

40 The author, who served for several years as judge of the ju ­
venile court for Pima County, Arizona, writes that the juvenile’s 
cooperation with the court at the hearing by admitting his involve­
ment may be decisive in whether the court treats him as a de­
linquent or refuses to suspend criminal prosecution. Judge Molloy 
states:

“The attitude of the hoy involved is always a, factor in deter­
mining the order of the court. I f  the boy leaves the court, 
scornful of its processes, openly defiant of authority, and 
without having made a clean breast of his involvements, the 
court knows the boy will soon be back. The court also knows 
that delinquency rubs off on others of the same age, and a 
boy of this type is very apt to cause some of his acquaintances 
to be delinquent who in turn will infect others. Because of 
this the attitude of the boy might be the final factor influ­
encing the court to institutionalize the child, or to remand 
the child for criminal prosecution for the offense charged.” 
Id. at 11. (Emphasis supplied.)

Procedures which allow so critical a determination to turn on 
the juvenile’s willingness to make admissions of criminal conduct 
to the court are open to the gravest constitutional objection. Cf. 
Kent v. United States, 383 U. S. 541, 553-555 (1966). The pressure 
on the juvenile to make such admissions, whatever the truth of the 
matter, is greatly increased by the availability of the sanction of 
criminal prosecution for noncooperation. Recognition of the privi­
lege is essential to prevent the application of this kind of pressure, 
with its resulting danger of distortion of the fact-finding processes 
of the juvenile court.



55

It is clear from these authorities that Gerald Gault ran 
the risk of self-incrimination when he was questioned at 
the hearings of June 9 and June 15. He was accused of 
conduct constituting a crime, the statements elicited from 
him could have led to his conviction of that crime, and he 
had no assurance that he was safe from criminal prosecu­
tion based on his statements.

The state did not protect him. from the danger which 
its juvenile court procedures created. Its only gesture in 
that direction is Section 8-228, which provides:

“B. The disposition of a child or of evidence given in 
the juvenile court shall not be admissible as evidence 
against the child in any proceeding in another 
court. . . . ”

This provision is inadequate to uphold the state’s dis­
allowance of the privilege. It is too little and too late. 
It does not immunize the juvenile from criminal prosecu­
tion based on the matters about which he makes a state­
ment. It does not prevent the searching out and use of 
other evidence obtained as a result of his statements.

All it prevents is the admission of the statements them­
selves in a criminal prosecution. Since Counsel-man v. 
Hitchcock, 142 II. S. 547 (1892), it has been settled that 
this is not a sufficient grant of immunity to justify deny­
ing the privilege.41 As this Court said recently, “a grant

41 The statute which this Court held inadequate to grant im­
munity in Counsel-man is virtually the same as the Arizona provi­
sion. I t is clear that the Arizona statute does not grant the requi­
site immunity. When its lawmakers wanted to grant the complete 
immunity necessary to compel testimony, they knew how to do so. 
See, e.g., Arizona Constitution, Article 2, Section 19; Ariz. Rev.



56

of immunity is valid only if it is coextensive with the scope 
of the privilege against self-incrimination.” Murphy v. 
Waterfront Commission, 378 U. S. 52, 54 (1964).

Gerald Gault’s privilege against self-incrimination was 
therefore violated by the juvenile court. This Court 
should make it clear that if a state allows the risk of self­
incrimination to arise in its juvenile proceedings, it must 
afford the privilege to the juvenile.42

Stats. §§44-1660, 4-245. See State v. Chitwood, 73 Ariz. 161, 239 
P. 2d 353 (1951), on rehearing, 73 Ariz. 314, 240 P. 2d 1202 (1952).

The same statutory provision, which appears in the juvenile 
court act of Texas, was held not to grant the requisite immunity in 
Dandy v. Wilson, 179 S. W. 2d 269 (Tex. Sup. Ct. 1944). See also 
Ex parte Tahbel, 46 Cal. App. 755, 758-59,189 Pac. 804, 806 (1920).

42 In view of the framework of state law, it is unnecessary for 
this Court in this ease to decide the question of the applicability 
of the privilege in a juvenile proceeding where there is no possi­
bility of criminal prosecution of the juvenile, either because the 
delinquent conduct charged does not constitute a crime or because 
complete immunity from criminal prosecution has been given him. 
Even commentators who argue against allowance of the privilege 
in juvenile proceedings agree that if criminal prosecution is a 
possibility, the privilege must be recognized. See, e.g., Paulsen, 
Fairness to the Juvenile Offender, 41 Minn. L. Rev. 547, 562 (1957) : 

“One matter should be made clear: the propriety of freely re­
ceiving a child’s testimony in a delinquency case assumes that 
he may not be criminally prosecuted for offenses revealed by 
his statements. If  the youth can be turned over to the crimi­
nal courts for punishment, or if he can be punished after his 
treatment by the juvenile authorities, his privilege against 
self-incrimination must be carefully guarded. The common 
statutory provision forbidding the use of a juvenile’s testi­
mony in another proceeding is not a sufficient guarantee. The 
youngster must be protected against prosecution for any of­
fense revealed by his testimony before it is fair to strip him 
of the right given the worst criminals.” (Emphasis in origi­
nal.)

Since this was a clear violation of Gerald Gault’s privilege at 
the hearings, it is also unnecessary for this Court to decide whether 
the continuing process of extrajudicial interrogation of him also 
abridged his privilege. Suffice it to say that the record is clear



57

Contrary to the reasoning of the court below, recogni­
tion of the privilege does not impair “the necessary flexi­
bility for individualized treatment.” (407 P. 2d at 767.) 
There is ample scope for individualized treatment when 
the court comes to decide the proper disposition of a 
juvenile it has adjudged delinquent. But the adjudicatory 
process in juvenile court cannot be allowed to serve, how­
ever inadvertently, as a means of compelled self-incrimi­
nation.43

that the admissions elicited in court were part and parcel of a 
continuing interrogation by probation officers using investigative 
techniques familiar in the criminal law, e.g., interrogating Gerald 
Gault and his co-defendant in sequence seeking “a change of 
stories” and capitalizing on the boys’ evident desire to shift pri­
mary responsibility by implicating each other. (See R. 47, 49, 51.)

43 State eourts have divided on the applicability of the privilege 
in juvenile court proceedings. Compare Dendy v. Wilson, supra; 
Ex parte Tahbel, supra; In  re Sadleir, 97 Utah 291, 85 P. 2d 
810 (1938), on rehearing, 97 Utah 313, 94 P. 2d 161 (1939) (al­
lowing privilege), with In  re Santillanes, 47 N. M. 140, 138 P. 2d 
503 (1943); In  re Holmes, 379 Pa. 599, 109 A. 2d 523 (1954); 
State v. Shardell, 107 Ohio App. 338, 153 N. E. 2d 510 (1958) 
(disallowing privilege). Cases denying the applicability of the 
privilege, however, have almost invariably followed the theory that 
the juvenile proceeding is not criminal in nature, without con­
sideration of the crucial question of the interrelationship of the 
juvenile and criminal proceedings.

The privilege is recognized in adjudicatory hearings in the Ju ­
venile Court of the District of Columbia, see United States v. Dick­
erson, 168 F. Supp. 899, 902 (D. C. 1958), rev’d on other grounds, 
106 U. S. App. D. C. 221, 271 F. 2d 487 (1959); In  re Davis, 83 
A. 2d 590, 593 (Mun. Ct. Apps. D. C. 1951) and in juvenile pro­
ceedings in England, see Watson, The Child and the Magistrate 
(1965).

The trend of current scholarship and study in the field is clearly 
in favor of recognizing the privilege in juvenile proceedings. See 
e.g., U. S. Department of Health, Education and Welfare, Chil­
dren’s Bureau, Standards for Juvenile and Family Courts, 49, 72 
and authorities cited therein (1966); Antieau, Constitutional 
Bights in Juvenile Courts, 46 Corn. L. Q. 387, 407 (1961). New 
York expressly provides in its new Family Court Act that a ju ­



58

E. Right to A ppellate Review and to a 
Transcript o f the Proceedings.

The Arizona statute’s failure to provide a right of ap­
pellate review of juvenile court orders or a right to a 
transcript of the proceedings in the juvenile court con­
stitutes a departure from the requirements of due process 
of law.44

Although it has been said that “a State is not required 
by the Federal Constitution to provide appellate courts or 
a right to appellate review at all,” Griffin v. Illinois, 351 
U. S. 12, 18 (1956), this fact does not “authorize the imposi­
tion of conditions that offend the deepest presuppositions 
of our society.” Id. at 22 (Frankfurter, J., concurring). 
It can hardly be doubted that one of the “deepest presup­
positions” of American law is that unbridled and absolute 
discretion shall rest in no judicial official. Yet the State of 
Arizona lodges practically unlimited discretion in the juve­
nile court judge, and permits him to conduct his proceed­
ings with virtually total informality. Thus the right to 
review by appeal the decisions of such a juvenile court 
becomes extremely important. Even in a State where re­

venile shall be advised at the commencement of any adjudicatory 
hearing in the Family Court that he has a right to remain silent. 
N. Y. Family Court Act 741(a). In effect, New York thereby has 
overruled by statute the holding of People v. Lewis, 260 N. Y. 171, 
183 N. E. 353 (1932), that a juvenile could be required to testify 
in a juvenile court proceeding. People v. Lewis has been a prop 
on which state courts disallowing the privilege have commonly 
relied.

44 The Arizona Supreme Court held flatly that “there is no right 
of appeal from a juvenile court order.” (407 P. 2d at 764; R. 94.) 
The Court also held that since there is no right to an appeal, there 
is no right to a transcript. I t  left the matter of the taking of a 
transcript of juvenile court hearings entirely to the discretion of 
the juvenile courts. (Hid.)



59

view of juvenile court proceedings is provided for, one 
judge was moved to comment:

“Absolute power in the hands of a careful and just 
man may be a benefit, but most of our Constitutions 
have been adopted out of experience, with human na­
ture as it is, and is apt to be in the future. We must 
minimize the chance of abuse and place limitations 
even upon those who have the best of purposes and 
the most benevolent dispositions.” People v. Lewis, 
supra, 260 N. Y. at 182, 183 N. E. at 357 (Crane, J. 
dissenting).

Just last Term, this Court emphasized that the special 
concerns and interests sought to be furthered by juvenile 
court statutes do not justify placing the procedures em­
ployed by these courts beyond the scope of appellate 
scrutiny:

“But this latitude [to determine waiver of jurisdiction] 
is not complete. At the outset, it assumes procedural 
regularity sufficient in the particular circumstances to 
satisfy the basic requirements of due process and fair­
ness, as well as compliance with the statutory require­
ment . . . ” Kent v. United States, supra, 383 U. S. at 
553.

Moreover, although a statute may confer on a juvenile 
court a “substantial degree of discretion,” it cannot grant 
“a license for arbitrary procedure.” Ibid. The fact that 
the juvenile court functions as parens patriae is in no way 
“an invitation to procedural arbitrariness.” Yet how can 
such prohibited exercises of discretion in the juvenile 
courts be corrected when the state makes no provision for



60

appellate review?45 Forcing appellant to resort to the 
ancillary procedure afforded by habeas corpus, as in this 
case, is an inadequate method of meeting the problems 
posed by the power vested in juvenile court.46

This Court does not have to rule on the issue whether 
the right to appeal per se is required by the Fourteenth 
Amendment’s due process clause in order to find that a 
Juvenile Code, such as Arizona’s, which grants to the ju­
venile judge practically unlimited discretion in the con­
duct of a hearing constitutes “an invitation to procedural 
arbitrariness” if review by appeal is not provided. Since 
“a fair trial in a fair tribunal is a basic requirement of 
due process,” In re Murchison, 349 U. S. 133,136 (1955), the 
right to challenge the fairness of a juvenile court decision, 
i.e., the right to review on the merits, is required by due 
process. Absent such right, no effective examination of 
the arbitrariness of the decisions by the juvenile judge is 
possible.

45 Those who have prepared “model” juvenile court statutes or 
have formulated standards in this area have provided for appellate 
review as a matter of course, as well as the transcribing of the 
hearing. See National Council on Crime and Delinquency, Stand­
ard Family Court Act, §19, §28 (1959); Children’s Bureau, De­
partment of Health, Education and Welfare, Standards for Ju ­
venile and Family Courts, 76, 78-79 (1966).

46 The court in the habeas corpus hearing in the present case 
took the view that habeas corpus is only available in Arizona to 
test “jurisdictional” defects in the juvenile court proceedings. 
Whatever the definition of “jurisdictional” defect, is is plain from 
the record in the . habeas corpus hearing that the seope of review 
is not coextensive with the errors that can be asserted on appeal. 
This is the usual rule. E.g., State v. Logan, 87 Fla. 348, 100 So. 
173 (1924) ; Harris v. Norris, 188 Ga. 610, 4 S. E. 2d 840 (1939); 
People ex rel. Solemon v. Slattery, 39 N. Y. S. 2d 43 (Sup Ct 
1942).



61

The absence of an official transcript of the original hear­
ings, one of the basic shortcomings of this case which con­
fronted appellants in obtaining judicial review, would also 
be remedied by allowing review by appeal. This is appar­
ent from the fact that the Supreme Court of Arizona in 
this case justified the failure to provide for a transcript 
mainly by the absence of a right to appeal, reasoning that 
one of the main purposes of a transcript is to support an 
appeal. (407 P. 2d at 768, R. 94.)

Whether review of juvenile court proceedings is by ap­
peal or habeas corpus, a transcript is indispensable. Even 
if this Court rules that due process does not require the 
right to appellate review of juvenile court proceedings as 
a method of controlling unchecked discretion, parties in 
juvenile court proceedings will nevertheless continue to be 
able to resort to the habeas corpus method, as did appel­
lants here, to test the legality of the deprivation of liberty. 
Without an official transcript or record of the proceedings 
in the juvenile court, even the questionable efficacy of the 
habeas corpus remedy will be minimal.47 Among the severe 
difficulties with such a system is the obvious problem of 
establishing whether there is any evidence justifying the 
finding of delinquency and the loss of personal freedom that 
this frequently entails. Cf. Thompson v. City of Louisville, 
362 XL S. 199 (1960).

47 For example, there was sharp dispute at the habeas corpus 
hearing about whether Gerald Gault, at either of the two delin­
quency hearings, had admitted speaking any of the allegedly lewd 
words over the telephone. Mrs. Gault said that her son, at the 
first hearing said he had only dialed (R. 30), but Probation Officer 
Flagg and the Judge testified that Gerald admitted saying some 
of the words (R. 47, 59). On the other hand, Mrs. Gault and Mr. 
Flagg agreed that at the second hearing Gerald had admitted only 
having dialed (R. 35, 45) but the Judge insisted that Gerald had 
admitted making some of the allegedly obscene remarks (R. 61).



62

What results from a failure of the State to transcribe 
juvenile proceedings is the unseemly spectacle of the juve­
nile court judge testifying in the habeas corpus hearings 
to what transpired before him in the delinquency hearing, 
as happened here. In a similar context, this Court has ruled 
that:

“ . . .  no man is permitted to try cases where he has an 
interest in the outcome. That interest cannot be de­
fined with precision. Circumstances and relationships 
must be considered.” In re Murchison, 349 U. S. 133, 
136 (1955).

The juvenile court judge, the legality of whose judicial 
judgment is being challenged in that very proceeding, 
should not be called upon to recount what transpired in 
the juvenile hearing over which he presided. The danger 
of transforming him into a witness is manifest since his 
own conduct and orders are in question and he may un­
avoidably be tempted to try to assure that his decisions 
are not declared void and illegal. This latent possibility 
of prejudice and threat to the reliability of the habeas 
corpus proceeding as a method of review could be easily 
overcome by requiring records of the juvenile hearings 
which would then furnish an objective basis for the deter­
mination of the habeas corpus petition.

This Court has recognized the vital nature of having a 
transcript in order to contest the judgment rendered. See 
Griffin v. Illinois, supra; Draper v. Washington, 372 U. S. 
487 (1963). The essence of the injury to the petitioners 
in those cases was that a reviewing court’s ruling “was 
made without benefit of a reference to any portion of a 
stenographic transcript of the jury trial.” 372 U. S. at



63

493. We now submit that the most elemental notions of 
due process require that a transcript of the juvenile court 
proceedings be made, in order to provide an adequate basis 
for whatever mode of review is deemed appropriate.

CONCLUSION

The judgment of the Supreme Court of Arizona should 
be reversed with instructions to grant a writ of habeas 
corpus ordering the release from custody of Gerald 
Francis Gault.

Respectfully submitted,

N orman D osses '
New York University School of Law 
Washington Square 
New York, N. Y. 10003

M elvin  L. W ijl f

156 Fifth Avenue 
New York, N. Y. 10010

A m elie  D. L ew is  
P. 0. Box 370 
Sun City, Arizona 85351

Attorneys for Appellants

D a n iel  A . R ezneck  
C hables E. A res 
Gertrud M ainzer  
J ames J .  M urray

Of Counsel



APPENDIX



A P P E N D I X

Arizona Constitution, Article 6, Section 15

The superior court shall have exclusive original juris­
diction in all proceedings and matters affecting dependent, 
neglected, incorrigible or delinquent children, or children 
accused of crime, under the age of eighteen years. The 
judges shall hold examinations in chambers for all such 
children concerning whom proceedings are brought, in ad­
vance of any criminal prosecution of such children, and 
may, in their discretion, suspend criminal prosecution of 
such children. The powers of the judges to control such 
children shall be as provided by law.

Arizona Criminal Code § 13-377

A person who, in the presence of or hearing of any woman 
or child, or in a public place, uses vulgar, abusive or ob­
scene language, is guilty of a misdemeanor punishable by 
a fine of not less than five nor more than fifty dollars, or by 
imprisonment in the county jail for not more than two 
months.

Juvenile Code of Arizona 
§§8-201 to 8-239

A rticle 1.

GENERAL PROVISIONS 

§ 8-201. Definitions
In this chapter, unless the context otherwise requires:
1. “Juvenile court” means the superior court when ex­

ercising its jurisdiction over neglected, dependent, incor­



2a

rigible or delinquent children, or children accused of crime 
under the age of eighteen years.

2. “Judge” means judge of the juvenile court.

3. “Child” means a person under the age of eighteen 
years.

4. “Neglected child” includes:

(a) A child abandoned by its parents, guardian or cus­
todian.

(b) A child who lacks proper parental control by reason 
of the fault or habits of the parent, guardian or custodian.

(c) A child whose parent, guardian or custodian neglects 
or refuses to provide proper or necessary subsistence, edu­
cation, medical and surgical care, or other care necessary 
for its health, morals or well-being.

(d) A child whose parent, guardian or custodian neglects 
or refuses to provide special care made necessary by its 
mental condition.

(e) A child who is found in a disreputable place or who 
associates with vagrant, vicious or immoral persons.

(f) A child who engages in an occupation, occupies a 
position, or invites conditions dangerous to life or limb or 
injurious to the health or morals of himself or others.

(g) A child who is subjected to cruel and inhuman treat­
ment and shows the effect of being physically mistreated.

5. “Dependent child” includes a child who is homeless 
or destitute, or without proper support or care through no 
fault of his parent or guardian, and a child who lacks 
proper care by reason of the mental or physical condition 
of his parent, guardian or custodian.



3a

6. “Delinquent child” includes:
(a) A child who has violated a law of the state or an 

ordinance or regulation of a political subdivision thereof.
(b) A child who, by reason of being incorrigible, way­

ward or habitually disobedient, is uncontrolled by his 
parent, guardian or custodian.

(c) A child who is habitually truant from school or 
home.

(d) A child who habitually so deports himself as to in­
jure or endanger the morals or health of himself or others.

§ 8-202. Jurisdiction of juvenile court
A. The superior court shall have exclusive original 

jurisdiction in all proceedings and matters affecting neg­
lected, dependent, incorrigible or delinquent children, or 
children accused of crime under the age of eighteen years, 
and when exercising that jurisdiction shall be known as 
the juvenile court.

B. In a county having more than one judge of the su­
perior court, the judges shall designate, for a period of not 
less than one year, one of their number to serve as judge 
of the juvenile court.

# # *  ^  #

§ 8-203. Commissioner; power
In the absence of a judge from his county, the court com­

missioner shall make necessary orders for the temporary 
care, custody and control of children.

# # * #



§ 8-204. Probation officers

A. The judge presiding in the juvenile court may ap­
point a chief probation officer, a deputy probation officer 
and such additional deputy probation officers, not exceed­
ing one for each fifty persons on probation, as he deems 
necessary. In counties of the first class the judge may ap­
point necessary office assistants. The probation officers, 
deputies and assistants shall be discreet persons of good 
moral character.

B. In a county having a population of fifty thousand or 
more, a person shall not be appointed chief probation of­
ficer until he has passed a competitive examination touch­
ing child welfare, juvenile delinquency and dependency 
and other subjects associated with social science, pre­
scribed and given by a committee of three members to be 
appointed by the judge of the juvenile court. The mem­
bers of the committee shall be persons engaged in and ac­
quainted with educational and welfare work and practices.

C. The probation officer shall have the authority of a 
peace officer. He shall:

1. Look after the interests of neglected, delinquent and 
dependent children of the county.

2. Make investigations and file petitions.

3. Be present in court when cases are heard concerning 
children and represent their interests.

4. Furnish the court information and assistance as it 
may require.

5. Assist in the collection of sums ordered paid for the 
support of children.

6. Perform other acts ordered by the court.



5a

D. The probation officer shall give bond for the faith­
ful performance of his duties, in such sum as the court may 
determine, and the cost thereof shall be paid by the county. 

# # * # #

§ 8-205. Salaries
The salary of the chief probation officer of the juvenile 

court in each county, his deputies, assistants and all other 
employees, shall be fixed by the judge presiding in the 
juvenile court, with the approval of the board of supervi­
sors, and shall be a county charge.

#  *  #  *  #

§ 8-206. Venue
A. The venue of proceedings in the juvenile court shall 

be determined by the county of the residence of the child, 
or the county where the neglect, dependency or delinquency 
obtains or is committed.

B. Where the residence of the child and the situs of the 
neglect, dependency or delinquency are in different coun­
ties, invoking proceedings in one county shall bar proceed­
ings in the others.

# * # # *

A bticle 2.

PROCEDURE

§ 8-221. Arrest of child for violation of law
A. A peace officer, other than the probation officer, who 

arrests a child under the age of eighteen years shall forth­
with notify the probation officer, and shall make such dispo­
sition of the child as the probation officer directs.



6a

B. This article shall not be construed to prohibit a 
peace officer from taking into custody a child who is found 
violating a law or ordinance, who is reasonably believed to 
be a fugitive from his parents or from justice, or whose 
surroundings are such as to endanger his health, morals or 
welfare unless immediate action is taken.

# % * # #

§ 8-222. Initiation of proceedings

A. Any person may, and a peace officer or probation of­
ficer shall, give to the juvenile court information in his 
possession that a child is delinquent, neglected or de­
pendent. Thereupon the court shall make preliminary in­
quiry to determine whether the interest of the public or 
the child requires further action. When practicable, the 
inquiry shall include a preliminary investigation of the 
home and environment of the child, his previous history, 
his physical, mental and moral well-being, and the circum­
stances of the offense committed, if any. If the court de­
termines that formal jurisdiction should be acquired, it 
shall authorize a petition to be filed invoking its jurisdic­
tion in such form as it may prescribe.

B. The powers of the court may be exercised upon the 
filing of a petition by any resident of the county, or any 
peace officer or probation officer, alleging that a child is 
neglected, dependent or delinquent, and needs the care and 
protection of the court, without alleging the facts.

 ̂  ̂ #

§ 8-223. Child charged with crime

When a child under the age of eighteen years is charged 
with the commission of a crime or violation of an ordinance



7a

before a magistrate or justice of the peace, the magistrate 
or justice of the peace shall certify that the child is so 
charged, and shall transmit the records of the case to the 
clerk of the superior court, and thereupon the juvenile 
court shall exercise jurisdiction.

# # * * #

§ 8-224. Subpoena of parent or guardian; witnesses; con­
tempt; attachment

A. When the jurisdiction of the juvenile court has at­
tached, the court may make orders necessary for com­
pelling the production of the child and the attendance of 
the parent, guardian and other persons having custody or 
control of the child. If a person other than the parent or 
guardian of the child is cited to appear, the parent or 
guardian, or both, shall be notified of the pendency of the 
case and of the time and place appointed by personal 
service, except as otherwise provided in this article.

B. The clerk of the court shall issue subpoenas and 
process to compel the attendance of necessary witnesses at 
a hearing involving a child. The process may be served 
by an officer of the court, probation officer or officer au­
thorized to serve process in a civil action. No attendance 
or mileage fee shall be paid a witness, unless expressly 
authorized by the judge, in which event the fees allowed 
shall be as prescribed in civil actions. If the judge is satis­
fied that it is impracticable to serve personally a citation 
or other notice to appear, he may order service by regis­
tered mail or by publication, or both, and service in either 
manner twenty-four hours prior to the time fixed in the 
citation for the return thereof, if so ordered by the judge, 
is sufficient.



8a

C. If a person cited or subpoenaed fails to appear, with­
out reasonable cause, he may be proceeded against for con­
tempt of court.

D. If the citation cannot be served, or the parties served 
fail to obey it, or when it appears to the judge that the 
service will be ineffectual or the welfare of the child re­
quires that he shall be brought forthwith into the custody 
of the court, an attachment may be issued against the parent 
or guardian or against the child.

41- -K:-TV- Vl' w  '.v

§ 8-225. Custody of child pending hearing
A. Pending final disposition, the child shall be subject 

to the order of the court and may be permitted to remain 
in the control of his parents, guardian or person having 
his custody, or the probation officer, or he may be detained 
in a place provided by state or county authorities, or by 
an association or agency, public or private, for the care of 
delinquent, neglected or dependent children.

B. A dependent and neglected child shall be placed in 
the home of a maternal or paternal relative whenever pos­
sible, providing the home and the ability of the relative to 
provide proper care is approved by the court.

* # # * #

§ 8-226. Detention home; separate custody

A. The board of supervisors shall maintain a detention 
home separate and apart from a jail or lockup in which 
adults are confined, which shall be under the charge of a 
person of good moral character, where children within the 
provisions of this article shall, when necessary before or 
after trial, be detained.



9a

B. A child, pending a hearing, shall not he placed in an 
apartment, cell, place of confinement, court room or vehicle 
or transported in company with adults charged with or 
convicted of crime.

# # # * *

§ 8-227. Supervision of detention home
The juvenile court shall supervise the detention home, 

and shall appoint the person to have charge thereof. The 
court shall appoint a visiting hoard of three members to 
serve without pay to inspect the detention home not less 
than once every ninety days. The visiting hoard shall 
make a report to the court of the condition and operation 
of the detention home, with such recommendations as it 
deems advisable, which shall be filed with the clerk of the 
court.

^  ^  •sf -5?

§ 8-228. Effect of adjudication; use as evidence
A. An adjudication by the juvenile court upon the status 

of a child shall not operate to impose any civil disability, 
nor shall a child be deemed a criminal by reason thereof. 
An adjudication by the juvenile court shall not be deemed 
a conviction, nor shall a child be charged with or convicted 
of a crime in any court, except where the juvenile court 
refuses to suspend criminal prosecution.

B. The disposition of a child or of evidence given in the 
juvenile court shall not be admissible as evidence against 
the child in any proceeding in another court, nor shall 
such disposition or evidence disqualify a child in a civil 
service application, examination or appointment.

# # # * #



10a

§ 8-229. Hearings; record

The hearing of any matter involving a child shall be in­
formal, and the judge shall, in chambers, without the in­
tervention of a jury, inquire into the facts, order a medical 
or mental examination, if advisable, and make a record of 
the name, age and place of birth of the child and the names 
of his parents.

# * # # *

§ 8-230. Hearing by referee

A. When it appears to the court, in a proceeding affect­
ing a neglected, dependent or delinquent child, that the 
interests of the child will be served by an examination and 
hearing before a referee, the judge may direct that the 
proceeding be so heard, and shall appoint a referee to hear 
the matter and report his conclusions and recommenda­
tions to the court, in writing, together with all papers re­
lating to the matter.

B. A hearing before the juvenile court upon the report 
of a referee shall be allowed to the parent, guardian or 
custodian of the child concerned, upon the filing of a re­
quest therefor within two days after conclusion of the 
hearing before the referee. If a hearing by the court is 
not requested, the conclusions and recommendations of the 
referee, when confirmed by an order of the court, shall be­
come the judgment of the court.

# # * # #

§ 8-231. Disposition and commitment; support; transfer of 
records; removal from state

A. The judge shall make such order for the commit­
ment, custody and care of the child as the child’s welfare



11a

and the interests of the state require. He may commit the 
child:

1. To the care of his parents, subject to supervision of 
the probation officer.

2. To a probation officer, subject to such conditions as 
the judge may impose.

3. To a suitable institution.
4. To an association willing to receive him.

5. To a reputable citizen of good moral character.

6. To an appropriate public or private agency author­
ized to care for children.

7. To a suitable school.

8. To the state industrial school.
9. To an institution provided for girl juvenile offenders.

10. To maternal or paternal relatives, provided they are 
physically and financially able to provide proper care.

B. The juvenile court may make an order directing the 
parent of a child to contribute to his support such sum as 
the judge may determine, or may allow a reasonable sum 
for the support of the child at the expense of the county.

C. When the court commits a child to an institution or 
agency, it shall transmit with the order of commitment a 
summary of its information .concerning the child.

D. The juvenile court may permit removal from the 
state of a neglected, dependent or delinquent child, by the 
person to whom his care may be temporarily awarded, 
upon such recognizance, with or without sureties, as may



12a

satisfy the court, obligating the person to produce the child 
when required by the court.

# # # # #

§ 8-232. When child may not be committed; medical 
examination

A. A delinquent child under the age of twelve years 
shall not be committed to the state industrial school, or to 
an institution for girl juvenile offenders, unless, after the 
care given the child by probation, the court finds that the 
interests of the child and the welfare of the community 
demand his commitment, nor shall a neglected or dependent 
child be committed to any such school.

B. Before commitment, every juvenile offender shall be 
given a medical examination, which shall include an x-ray 
of the lungs and a blood test for syphilis. A record thereof 
shall be made, including medical findings based thereon, 
and if the juvenile offender is thereafter committed to an 
institution, the record shall accompany his commitment 
papers.

# # # # #

§ 8-233. Guardianship

When the juvenile court awards a dependent child to the 
care of an association, board or institution, public or pri­
vate, or to an individual, the child shall, unless otherwise 
ordered, become the ward and be subject to the guardian­
ship of that association, board, institution or individual. 
The association, board, institution or individual shall have 
authority to place the child in a family home, with or with­
out indenture, and may be made party to any proceedings 
for the legal adoption of the child, and may appear in court



13a

where the proceedings are pending and consent to adoption. 
Consent of the association, board or institution, public or 
private, or the individual to whom the court has awarded 
the dependent child, shall be sufficient to authorize the 
court, in its discretion, to include guardianship of the estate 
of the child. As amended Laws 1956, Ch. 149, § 1.

# * # # #

§ 8-234. Report of custodian
When a child is committed to the care of any person, the 

matter shall be assigned by the juvenile court to a proba­
tion officer, who shall require a report quarterly, or oftener 
if the court so orders, from the person to whom the child has 
been committed, reporting the child’s condition and welfare. 
The report shall be filed with the court.

# # # * #

§ 8-235. Physical and mental care
A. When a child concerning whom a petition has been 

filed in the juvenile court appears to be in need of medical 
or surgical care, the court may order the parent, guardian 
or custodian to provide treatment for the child in a hospital 
or otherwise. If the parent, guardian or custodian fails 
to provide the care as ordered, the court may, after notice, 
enter an order therefor, and the expense, when approved by 
the court, shall be a county charge. The court may adjudge 
that the person required by law to support the child pay 
part or all the expense of treatment.

B. If it appears that a child concerning whom a petition 
has been filed in the juvenile court is mentally defective or 
mentally disordered, the court may commit the child to an



14a

institution authorized by law to receive and care for such 
children.

# # # # #

§ 8-236. Jurisdiction; length of commitment; placement
A. When jurisdiction has been acquired by the juvenile 

court of a child, the child shall continue under the jurisdic­
tion of the court until he becomes twenty-one years of age, 
unless sooner discharged, except that from the time of ad­
mittance to the state industrial school or to an institution 
for girl juvenile offenders, a child shall be subject to the 
exclusive control of the board of directors of state institu­
tions for juveniles until his absolute release.

B. A commitment of a child shall not extend beyond the 
minority of the child, and commitments to the state indus­
trial school or an institution for girl juvenile offenders shall 
be for the term of the child’s minority, unless sooner dis­
charged by the board of directors of state institutions for 
juveniles.

C. The court, in making orders for the commitment or 
adoption of a child, shall place it, as far as possible, in the 
custody of persons having the same religious belief. When 
possible the child shall be placed in an appropriate family 
home and become a member of the family by adoption or 
otherwise.

# # * # #

§ 8-238. Destruction of record

Upon the expiration of the period of probation or follow­
ing the expiration of two years after the discharge of a 
child from the institution to which he may have been com­
mitted, the judge of the juvenile court shall order the clerk



15a

to destroy the records of the proceeding, unless it appears 
that prior to the expiration of the prescribed period the 
child has been convicted of an offense under the laws of 
this or another state. The superintendent of the institution 
shall notify the clerk of the court which committed the 
child when two years have expired after his discharge.

# # # # #

§ 8-239. Cooperation
County, city and town officials and departments shall ren­

der assistance and cooperation within their power which 
may further the objects of this article. An institution or 
agency to which the juvenile court commits a child shall 
give the court or an officer appointed by it such information 
concerning the child as the court or the officer may require. 

* * * * *



SB HORTON STREET 
HEW YORK 1-4, N. %

38

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