Isbell v. State Court Opinion

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U. S. SUIREME COURT REPORTS 25LEdzd'

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t397 US 3581

IN THE MATTER OF SAMUEL WINSHIP, Appellant

397 US 358, 25 L Ed 2d 368, 90 S Ct 1068

[No. 778]

Argued January 20, 1970. Decided March 81, 1970.

, SUMMARY

- In jlglle proceedinEs in Nerv York Family Court, it was found that
a 12-year-old boy had stolen money, the judge acknowledging that Rur-sug4ilo a New York statutg his determination was based on a pre-
ponderance of the evidence, and rejecting the contention that due process
required proof beyond a reasonable doubt. An order which placed the
juvenile in a training school, subject to confinement for as long: as 6
ye&rs, was affirmed without opinion by the Appellate Division of the
New York Supreme Court, First Judicial Distrlct (291 NYS2d 1006),
and the New York Court of Appeals then affirmed, expressly sustaining
the constitutionality of the statute authorizing determination based on a
preponderance of the evidence (24 NY2d 196, 299 NYS2d 4\4, 247 NE2d
253).

0n appeal, the Supreme Court of the United States reversed. ' In an
opinion by BnnNNAN, J., expressing the vierv of five members of the
court, it was held that (1) the due process clause protected an accused
in a criminal prosecution against conviction except upon proof beyond
a reasonable doubt; (2) although the Fourteenth Amendment did not
require that a juvenile delinquency hearing conform lvith all the require-
ments of a criminal trial, nevertheless, the due process clause required
application cluring the juvenile hearing of essentials of due process and
fair treatment; and (3) thus juveniles, like adults, were constitutionally
entitled to proof beyond a reasonable doubt during the adjudicatory stage
when the juvenile was charged with an act which would constitute a
crime if committed by an adult.

Hlnl.LN, J., concurring, joined the court's opinion with the observa-
tions that (1) although the phrases "preponderance of evidence" &nd

SUBJECT OF ANNOTATION

Beginning on page 950, infra
Procedural requirements uunder Federal Constitution

juvenile delinquency proceeclings
ln

Briefs of Counsel, p 948, infra.

a a

I



PREI\IE COURT R]'PORTS 25LEd2d

t397 US 3581

OF SANIUEL WINSHIP, Appellant

1068

31, 1970.

RE WINSHIP
39? US 35& 25 L Ed 2d 368, 90 S Cr 1068

369

"proof beyond a reasonable doubt" were quantitatively imprecise, never-
theless they communicated to the finder of fact different notions con-
eerning the degree of confidence that he was expected to have in the
correctness of his factual conclusions; @the reasonable-doubt standard
in a criminal case was bottomed on theYundamental value determination
that it was far worse to cmvict an innocent man than to let a guilty
man go free; (3) although the consequences of determination of delin-
quency were not identical to those of conviction in a criminal case, never-
theless, a juvenile court juilge should be no less convinced of the factual
conclusion that the accused committed the criminal act with which he
was charged than would be required in a criminal trial; and (4) while
there was no automatic congruence between procedural requirements
imposed by due process in a criminal case and those imposed by due
process in juvenile cases, 6e requirement of proof beyond a reasonable
doubt for a determination of delinquency u,ould not jeopardize the essen-
tial elements of the state's purpose in creating juvenile courts.

BuncER, Ch- J-, joined by Srnwmr, J., dissented, expressing the view
that the original crncept of the juvenile court system was to provide a
benevolent anil less formal Ineans than criminal courts could provide for
dealing with the special pnoblems of youthful offenders, and that there
was no constitutional requirement of due process sufficient to overcome
the legislative judgment of the states in such area, the juvenile system
requiring breathing room and flexibility in order to survive.

Br,lcK, J., dissented, stating that (1) the constitution does not expressly
require proof of guilt beyonda reasonable doubt; (2) the correct meaning
of "due proce,es of law" is that the government must proceed according
to the "law of the land," that is, according to written constitutional and
statutory provisions as interpreted by court decisions; (3) the "natural
law due process" notion, unihr which the court frees itself to declare any
law unconstitutional that'shocks its conscience" or deprives a person
of 'tundamental fairness" or violates the principles "implicit in the con-
cept of ordered lfberty," is at odds with the basic principle thaf the
government is one of Iimited F)wers; and (4) nothing in the due process
clause invalidates a state's decision, through its duly constituted legis-
lative branch, to apply a standard of proof different from the reasonable-
doubt standard-

25 L Ed 2d 368, 90 S Ct

lNo. 7781

20, 1970. Decided l\{arch

SUII}IARY

n New York Farnily Court, it u'as found that
)n money, the judge acknorvledging that pur-
tute his detennination rras based on a pre-
and rcjecting the contention that due process

easonable doubt. An order rvhich placed the
ool, subject to confinement for as long as 6

ut opinion by the Appellate Division of the
, First Jr-rclicial Dist.rict (291 NYS2d 1005),
rf Appcals then a{Ilrnred, exprcssly sustaining
statute authorizing deter-n-rination based on a

ace (24 NYzd 196, 299 Nf-SZd 474, 247 NEzd

Court of the United States reversed. ' fn an
expressing the vierv of five members of the
r the due process clause protected an accttsed
against conviction except upon proof beyond
Ithough the Fourteenth Amertdment did not
nquency hearing conform with all the require-
nevertlreless, the due proccss clattse required
lnile hearing of essentials of due process and
us juveniles, like adults, trere constitutionally
'easonable doubt during the adjudicatory stage
arged r",ith an act which rvould constitute a
rlt.

joined the court's opinion rvith the observa-
ne phrases "prepcinderance of evidence" and

ECT OF ANNOI'ATION

ning on p:rge 950, infra
nerrts' tttrr:der Ircd,'r'al Ct't,.:'titui ion
e ri,-lirtlrrncy plo('o(-r(lings

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370.

Constltutlonal Law $ 831.5 due
process - 

juvenile delinquency
hearlng

1. Although the Fourteenth Ambnd-
ment does not require that a hearing
at which a determination is made as
to whether a juvenile ls a dellnquent,
gubjecting hlm to commitment to a
state institution, conform with all the
requirements of a criminal trial or
even of the usual administrative pro-
ceedlng, the due process clause does
require application during the ad-
judicatory hearing of the essentials
of due Drocs!! and felr tregtment,

lSoc avnototlon p, 960, lnlro)
Corutltuttonal Law 1840.8 dur

Dloct.r - luvcnllc ptoc.aalln$ -proof bcyond rcaronable doubt
2. Proof beyond a reasonable doubt

26LEd2d

is among the essentials of due proc'
ess and fair treatment required. during
the adjudicatory stage when a ju-
venile is charged with an act which
would constitute a crime if committed
by an adult, and a state statue permit-
ting a determination of dellnquency
on I preponderance of the evidence
is unconstitutional.

lsee o,nnototion p, 950, intro)

Constitutional Law g 840.8 due
process - 

juvenile delinquency

- proof beyond reasonable doubt
8. As a matter of due Process, the

calc agalnrt e 12-yrer-old chlld-
charged ln Juvcnllc proccedlngr wlth
an act of rtcellng whloh renderr htm
llablc to contlnrmtnt tor u lonS m
6 yearr-murt bc provcd beyond I ill-
sonable doubt, and a determlnatlon ol

U. S. SUPREME COUBT REPORTS

EEADNOTES

Clagsified to U. S. Supreme Court Dlgert, Annotated

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. TOTAI CIIENT SERVICE TIBRANY REFENENCES

{? Au Jun 2d, Juvcnlle Courts and Dellnqu€nt and Depend'
ent Chtldren $$ 49-64

12 Au Jun Pl & Pn Fonrus, Juvenile Courts and Delinquent,
Dependent, and Neglected Children, Forms 12:901 et seq.

. 14 AM Jun Tnu,ls 619, Juvenile Court Proceedings

US L Eo Dlcnsrs, Constitutional Law $ 840.8
' ALR DlcBsts, Constitutional Law $$ 669-672; Juvenlle

Delinquents and Dependents $$ 2, 3, 9
L Ep INopx ro ANNo, Children and Minors; Constitutional

Law; Evidence
ALR Qurcx INDE(, Due Process of Law; Juvenile Courts

and Delinquency
Fmpnrr, QuIcr INDEx, Duc Procer! of Lrwi Juvcnllc Courtr

end DellnquGnt! 
!

ANNOTATION REFERENCES

Procedural requirements under Fed- in juvenile court proceedtns!. 60 ALR
eral Conatitution in juvenile delinquen- 2d 691.
at;";;;;dtrs r. za-t Ed 2d 960. 

' ApplicabititJ of ruler of evldence ln
- 
fltght to jury trial in juvenile court juvenile delinqueney proceedinga. 48

delinquency proceedinga. 100 ALR2d ALR2d 1128.
L241,- Power of juvenlle court to requlr-e

Btght and appoinhnent of counsel children to testify. 161 ALB 1229'

lzsLu2dl



I

371ilD \iIiNSiiiP
li07 us r35ii, 26 L l,)d 2rr i6E, 00 s ct 106ii

dciinc;ucncy, ba;reci o11 ;r riliilc stltutu Constit.rrtirinnl Liirv $ S40.3 duc
l)et'mitLii.rl{ $lic)r d0t0rrr:ination or; a l)t'occr{s -,iuvcrrilc dclinquency
pl'eponderance of the evidence, is im- - lga.5enabic-doubt standard
proper. 8. Juvcniles, iike adults, are consti-

lSae annotation p, 950, infra) tutionaliy entitlcd, undcr the due ploc-

constiturional Law s,840.3 .- due :il."1:;l;'rti"i]ll"",L'Jo'll.u.l';i;l;
j)roccss - criminnl conviction - witir vioi;rtio, of a, crihinal lau,, indproof bcyond rcasonabic ciotti,tt

4, Auhousi "i,t;;;f 
";"":;i1,,"y,, 

;,:i;?;ii;1"X";;;;i',"i,1J,:ft&"fi,'il:
aclherence to the rcasonlblc-doubt i,uor,.y on a irr.eponclerance of the evi-
standnrd of proof for ct'imina.l .con- , clcncc carnot be sustainecl on theviction in common-la*', lrifi:di:tlon: gr.ounds .chat (1) a deli,quency ad-
may not conciusiveiy establish it. as a luctication is not a ,,co1viction,, and
requiremcnt of due Process, such rici- affects no right or.privilege, inciuding
herencc docs reflect a p.r'ofound, jutlg- t)re right to holcl ,ublic office or tomont about the waY-,|1 .lll"lj:lt obtain a iiccn.so; (i) s cloak of plo-
shouid be enforced and justico ndmirt- tcctivu confiilentiality is thrownistered. rrr,ourr<l ali the proceeclings; (B) the

Evidence s e80 - sufliciency - crim- l:.iix:T:J.::1,,:,Hi."J*ii:,l-13l1:inal case
b. rh e cii s a rrvar rtag:..i", i : ::: :,1 j: :il,ltJ,lJr'?l 

tf" 
fiT T$1tj, lii fn";

cused of crinre if he could be adJudged 
"i li,f.guilty ancl imprisoned ott thc strend;h L

of the eame evidence as rvould suf- lsee arr'notation p' 950' infra)
flce in a civil case, &mounte to a lack Constitutionai Larv S 854 - due proc.
of fundanrental fairness, ess - 

juvenile procccdings

Constitutional Larv S 840.3 clue g' The "civil" label-of-convenience

process 
- criminal-"onri.tio., - 

rvhich has been attached to juvenile

reasonablc-aoui,i-rin"a;;.1 procceclitrgs to distinguish them from
6. Due pl.ocess .o**uiiO. iiiat no a critniull prosecutiotr is not a rea'

man shal] Iose his fi;;,.t;;ri;.* ti.,n son for.hoitling thc clue process ciause
governme,t t a* lo,ne-tii" b;;;,, ;1 inapplicable to a juveni)e proceeding'

convincing the fact finder of iris guilt ; lSee annotation p' 950, infraT
to such end, the leasonable-doubt Constitutional Law S 8i4 - clue proc-
standnrd is indinponrroirlc, fot' it ,int- css - 

juvc,ilc pro<:cc4ings 
-

pt'esses on the trier of fact the lleces- 10. Civil jabeis ancl good inientions
sity of reaching a subjective state of cio not themselves obviite the need for
certitude on the facts _in .issue, and crimi,al due process safeguarcls inthe use of such standard is indis- ;uvenile courts, for a plr.oceecting
ponrrnble to comrnntrrl thc i'cspoct &ncl l,lrcr" thc issue is whe6rer the chlld
confidence of the community in appli- rvili bc found to be ,,clelinquent,, ancl
cations of the criminal larv, it being _"r"rbj'ectecl to the loss of his liberty for
critical that the molal force of tL,e I'ears is complr.able in seriousneis to
criminal lau, not Ilc dilutcd by a s',rnd- 

" fnl,,ny pr.oiecution.
ard of proof which leaves peoplc in lsie'annotation p, 9s0, infra)
doubt whether innocent men are being
condemned. Constitutional L.arv S 840.3 due

process 
- 

juvenile delinquency
Constitutional Law S 840.3 tiuc - 1sa-qenofle-rjoubt standard

process 
- criminal conviction - i1. To allord juveniles, consistenily

,---.,reasonable-rloubt standard with clue process, the protection of
tl.rtThe due. ltroccss clause protccts proof beyond a re:rsonable doubt does

an-accuserl against conviction except not risk destt'uction of beneficial as-
upon proof beyond a reasonable cioubi pects of 'uhe juvenile pl'ocess, or com-
of every fact necessary to constitute pel states to abanclon or clisplace any
the clime with which he is charged. of the substantive beneflts of the ju-

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372

venile process, including (1) state
policies that a finding that a child has
violated a criminal ]arv does not con-
stitute a criminal conviction or de-
prive the child of his civil rights, (2)
the confidentiality, informality, flexi-
bility, or speed of proceedings, (3) the
opportunity during the postadjr.rdica-
tory or dispositional hearing for a rvide-
ranging review of the child's social his-
tory and for his individr.ralized
treatment, and (4) the procedures
distinctive to juvenile proceeclings
that are employed prior to the adjudi-
catory hearing.

lSee annotation p, 950, infra)

OPINION OII

Mr. Justice Brennan deliverecl the
opinion of the Court.

III Constitutional questions de-
cided by this Court concerning the
juvenile process have centered on
the adjudicatory stage at "which a
determination is made as to

[397 US 359]
whether

a juvenile is a 'delinquent' fls ir re-
sult of alleged misconduct on his
part, with the consequence that he
may be committed to a state institu-
tion." In re Gault, 387 US 1, 13,
18 L Ecl 2d 527, 533, 87 S Ct 1428
(1967) , Gault decidecl that, al-
though the Fourteenth Amenclment
does not require that the hearing
at this stage conform rvith ali the

U. S. SUPREME COURT REPORTS 26LEd2d

APPEANANCES OT COUNSEL

Rena K. Uviller argued the cause for appellant.
Stanley Buchsiraum arguecl the cause for appellee.
Briefs of Counsel, p 948, infra.

Constitutional Larv S 840.3 due
process 

- 
juvenile proceedings 

-sulliciency of proof
12. Consistent rvith clue process re-

quirements, judicial intervention re-
lating to a juvenile's conduct inimical
to his rvelfare cannot take the form of
subjecting the child to the stigma of
a finding that he violated a criminal
larv ancl to the possibility of institu-
tional confinement on proof insuffi-
cient to convict him rvere he an adult.

lSee armotation p, 950, infra)

TIID COURT

requirements of a criminal trial or
even of the usual administrative
proceecling, the Due Process Clause
cloes require epplic&tion during tho
acljudicatory hearing of " 'the essen-
tials of due process and fair treat-
ment.' " Icl., at 30, 18 L Ed 2d at
548. This case presents the single,
nrrrow question whother proof be-
yond ft rensonable doubt js among
thc "essentials of ciue process and
fair treatment" reqnirecl during the
adjudicatory stage when a jr-rvenile
is charged rvith an act rvhich rvould
constitute a crime if committed by
r,n aclult.l

[2,3] SectionTlz of the New York
Family Court Act defines a juvenile
dclinquent as "a person over seven

1. Thus, we do not see how it can be snid
in disserrt that this opinion "rests entirely
on the assumption that all juvenile pro-
ceodingr are 'criminnl prosecutions,' hcrrco
subjcct to constilutionrrl limitltions," ,\g
in Gnult, "we ore not hcre concerncd rvith

. the pre-judicial stnges of the ju-
venile process, nor clo rve direct our nltct.-
tion to the post-adjudicativc or disposi-
tional process." 337 LIS, at 13, 18 L .i'ld 2tl
at 538, In New York, the acljuclicnt:ory
stage of a delinquency proccedinu is clcar-
ly distinct from both thc prcliminrry
phase of the juvenile process anC from its

dispositionaL 'stage. See N. Y. Family
Court Act S$ 731-?49. Similarly, we inti-
matc no vicw concerning the constilu-
tionnlity of the Nerv Yorl< proccrdures ,iov-
r,rning chlldrcn "in necd of supervislon,"
llee itl., rt S,i\ 711-?12, '142-145, Nor do
\\,e consider rvhethcr therc are other
"r.:ssentials of due proeess and fair treat-
rncnt" required during the ad;udicatory
helring of n delinquency procccding. Fi-
nrli;1, rve have nc, occasion to consider
alpcllant's arg:ument that .\ 744 (b) is a
violation of the Equll Protcction Clause,
a:; rvell as a Cenial of dr.re rl'ocess.



iiU WiNSlrrP
397 US 35E,2;-r i, Ud 2(l ljtis, g0 s ct 10dg

873

and less than sixteen yeiirs of age nionths, subject to annual exten-
who does anlr ;,"1 rvhich, if cione b1, srions of his commitment until his
an adult, would constitute a cr.inte," iEth birthday-six years in appel-
During a 1967 ad;udicatoi.y hearing, lant's case. The Appellate Division
conducted pursuant to S 742 of thc of' 'cire Nerv Yor.k supreme Court,
Act, a judge in New York Iraniiiy r'ir.st Juciicial Department, affirmed
Court

1397 US 3601
f tlrrrrri t hirL tr1l1r<rlltr.rt, tircii ir

iZ-year-olci boy, haci eutered l iocl<ct.
and stolen $112 from a woman's
poc)ietbook. The pctition lvirich
charged appeliant with dclinq'rlency
allegcd that his act, "if done by an
nclu)t, r,''oulcl consti{;utc the crirnc or
crimcs oI LaLccny." Thc judge ac-
)tnowlcdgecl that the proof might
not esiabiish guilt beyond a rcason-
abie doubt, but rejectcd appellant's
contention that such proof was rc-
quilr:d by thc Fourtccnth Arucnd-
mcnt. Thc judgc relied instcarl on
sq 744 (b) of the New Yor.i< Famill'
Court Act which providcs that
" [a] ny determination at the corrclu-
sion of [an adjudicatory] hearing
that a [juvenile] did an act or acts
must be based on & pl.epond0l,ru'rcc
of the evidence."s During a subse-
quent dispositional hearing, altpel-
lant was ordered placed in a training
school for an inii;ial period of 18

2. Tho rullng al)psrtrB ln thc followlng
portion o! the hearing transcript:

Counsel: "Your Honor is nraking a find-
ing by the pr.eponderance of the evidcnce,',

Court: "Wcli, it convinces me.,,
Counsei: "It's not beyond a reasonable

doubt, Your. Ilouor."
Court: "That is true Our sLat-

ute says a preponderance and a preponder-
ance it is."

3. Accorci, c, 9., In re Dcnnis I{,, ?0 Cal
2,1 4,1.1, ,1r,0 P2d zti6 (i{r09); In rc liiiis,
253 Azd ?ti9 (D. C, Ct. ,\pp. 1909) ; Siar-c v
Arenas,253 Ore 215,463 P2d 915 (1tr63);
Slate v Santana, zr44 SW2d 614 (Texas
1969). Contra, iinitcd SLatcs v Costanzo,
395 tr2d .1,11 (CA4th Cir 1968); In rc
Urbasek, 38 Ili 2d 5?,5, zJZ NE2d ?i6
(196?) ; Jones v Cornmonrvcalth, 18b Va
335, 38 SIrZd 144 (1Ca6) ; ND Cent. Code
S 2?-20-29 (2) (Supp. 1969) ; Coto Rev
Stat Ann. S 22-3-6(1) (196?); Mct Ann.
Code, Art 26, g ?0-18(a) (Supp 1ti69);
NJ Ct Rule 6:9(1) (f) (1967); Wash

rvii;hout oltinion, 30 App Div 2d 781,
291 NYS2d 1005 (1968). Thc New
)'ork Court of Alrpcals tiretr ufllrmcd
r)f u four-to-thrcc vote, expressly
susi,aining the constitutionality of
s( 744(b), 24 NY2d 196, 247 NEzd
253 (1900;.a

t3e7 Lrs 3611
\\Ic notcrl ttrobublc

.irrri.yciiction, 396 US 885, 24 L Itd
2ci i60, 90 S Ct 179 (1969). V[e
reverse.

I
i4l 'lhc l.r:quircnrcnt 1;hnt Cuilt of

r criminal charge be estalllished by
ploot' beyoncl a reasonable cloubt
ciatcs lt ieast fr.om our early years
as a Nation. The "demand for a
higher degree of persuasion in crim-
inal cascs was recurrently expressed
frtim ttncierrt times, [though] its
crystlilizltion into the formula ,be-

yond a I'easonable doubt' seems to
have occurred as late as 1?g8. It is
now accepted in common law jurie.

I

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li't;.
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sup C1, Juv Ct Itulo g 1,4(b) (1009); cf,
In lc Agler, 19 Ohio St 2d ?0, 249 NE2d
808 (1e0c).

Lcgislative adoption of the reasonable-
doubt standard has bcen ur.ged by the Na-
1;iqna1 Confercnce of Commisgioners on
Uniform Statc Laws and by the Chil-
clrcn's Bureau of the Department of
IIeallh, Education, and Welfare,s Social
.incl llchabilitation Service. See Uniform
Jr.n'cnil<r Ccrur! Act ,,s 29 (b) (1968); Chil-
rilen's Bureau, Sociai and Rchabiiitation
Scrvice, U. S, Dcpartmcnt of Health, Edu-
c:rtion, anti Welfare, Legislative Guide for
Dllftirrg Fanrily and Juvenile Court Acts
51 32(c) (196!). Cf. the proposal of the
Natio;ral Council on Crime and Delinquen-
cy thaL a "clear and convincing,' standard
bc adoptcd. Model Ruics for Juvenile
Courts, Rule 26, p. 5Z (1960). See gen-
crally Cohen, The Standard of Proof in
Juvcnilc Proceedings: Gauit Beyond a
rleasonable Doubt, 68 Mich L Rev 66?
(1e70).



374 U. S. SUPREME COURT REPORTS 25LEd2d

dictions as the measure of Persua-
sion by rvhich the prosecution must
convince the trier of all the essential
elements of guilt." C. \lcCormick,
Eviclence 

"s 
321, pp. 681-682 (195a) ;

see also 9 J. lVigmore, Eviclence

S 249? (3c1 ed. 1940). Altho'"rgh vir-
iually unanimous adherence to the
reasonable-doubt stanciard in com-

mon-law jurisdictions may not con-

clusively establish it as a require-
ment of due Process, such adherence
does "reflect a profouncl jurlgment
about the

t397 LTS 3621

waY in which larv should

be enforced and justice adminis-
terecl." Duncan v Louisiana, 391

us 145, 155, 20 L Ed 2d 491, 499,

88 S Ct 1444 (1968).

Expressions in manY opinion's of
this Court inclicate that it has long
been assumecl that Ptoof of a cri:n-
inal charge beYond & reasonxble
cloubt is 

-tonstitutionally 
requircd'

3.", to" examPle, Miles v Unitecl
Sint.., 103 US 304, 312, 26-]-.Ilc-l
igt, d8+ (1s81) ; Davis v United
Siate., 160 US 469, 488, 40--L Eq

+gg, SOA (1895) ; I{olt v- Ulit1c]
States, 218 US 245, 253, 54--L- trcl

1021, 1.030, S1 S Ct 2 (1C10) !-S"]l9n
v Unltecl Stntes, 232 US 503, 5(;0-

570, 58 L lld ?28, 732, 34 s ct 347

(1914) ; Brinegal v Unitecl Statcs'
SSg US 160, 174, 93 L trcl 1879, 1889'

69 S Ct 1302 (1949); Leland v Ore-

gon, 343 US ?90, ?95, 96 L Ed 1302'

izol,lz s ct 1oo2 (1952) ; llolland
v United States, 348 rJS 121, 1"38,

99 L trd 150, 165, ?5 S Ct 727

(1954) ; Speiser v Ranclall, 357 TJS

ilj., sas-szG, 2 L Ed 2d 1460, 1472,

?8 S Ct 1332 (1958). Cf' Cofln v
Unitecl States, 156 US 432, 39 L E(I

481, 15 S Ct 394 (1395)' IIr,,Tu1-
tice Frankfurter stated that " [i] a; is

the cluty of the Government to es-

tablish gurlt beYoncl a rert-

sonable doubt. This notion-basic
in our law and rightlY one of the

boasts of a free societY-is a re-
q'-rirement ancl a safeguard of due

process of law in the historic, proce-

ilLrral content of 'due Process,' "
Leland v Oregon, supra, a'J 802-803,
96 L Ecl at 1311 (dissenting opin-
ion). In a similar vein, the Cor-rrt

srricl in Brinegar v Unitecl States, su-
pra, at 174, 93 L Ecl at 1889, that
;'[g]r',rlt in a criminal case must
be proved beyoncl a reasonable doubt
nnit by eviclence confineci to that
lvhich long exPeriencq in the com-

mon-latv traclition, to some extent
cmbocliecl in the Constitution, has

crystallizeci into rules of evidence
consistent with that standard'
These rules are historicallY
grouncled rights of our system, cle-

veloped to safeguarcl men from du-
1:iotr-s ancl r.rnjust convictions, 'with
resulting forfeitures of life, liberty
ancl pr-oPertY." Davis v United
States, *uPra, at 488, 40 L Dd at
500, stateil that the requirement is

implicit in "constitutions
iruiri.t'tl recognize the fttndamental
principies that are cleemecl essential
i'or th-e protection of life and liber-
ty." In Davis a murcler conviction
wiIS

[397 LIS 303:l

reversea becltltsc the trinl Judge
instructeci the jtrry thnt it wfls thoir
cluty to convict rvhen the evitlence
rvas equal)y balancecl regarding the
sanity of ihe accused. This Co''rrt
snici: "On the contrarY, he is en-

titlccl to an aequittal of the specifie

crirne chargecl if upon ali the evi-

rlence there is reasonable doubt
r',,hether he was caPable in law of
committing crime. No man

shouldl be cleprived of his life under
the forms of larv unless the jurors
rvho try him are able, uPon their
consciences, to say that the eviclence

before them is suffreient to

sihow bcyoncl a reasonable doubt th'e

cxjstenee of every fact necessary to

constitute the crime chargeci'" Id"
tt 484,493, 40 L trd at 504, 507'



Rtr WiNSii,.? .1 (O

39? us 358, 25 L Ed 2d 3GE' 90 s ct 10c8

t5l The reiisonabie-Joub,; stanci- ri:ar;,il of errol is l.ecluced as to him

al.d pjays a vital ..i. iifi" AT reri- 'i i'"'u pr:ocess of placing on the

can scheme of climinal i.''ocuclu"e' oi;'tt ililt'ty the^ bui'dell of

It is a prime insti.Lrment ior reciuc- persui'dinr the factfinciel at the con-

ing g.re risk of .onrl.tiorr. restit-tg ciusion or'-the t,ial of his guilt be-

on factual er.r.or. The stanclar.il pro- r/oncl a rcaso,abie doubt. Duc proc-

\f,rfis coilcreftTubstance for the pre- 
"J.---.o't'""uncls 

tirat no ma, shall

srimption of il,r1o.In.I1r,ai iea- lose iiis iiberty uniess t'ire Govern-

rock ..axionratic o,.I.r 
-.t.m.ntllry,, 

inerit l.ills borlie tirc birrderr of

pr.inciple rvhose "oriol...n*nt tio* ,,t *iui,',.i,",11 tha t'*ctlindc' of his

the founciation oI iiie aclministra- giiilt';; io.this enrl' the reasonable'

tion of our. crimir:ai iaw," coflin , ao"r,t s'ua:icitrcl is inclispensable' for

United States, supra, at 453, 39.L it ;;i*pttttes onthetrier of factthe

Ecl at 4g1. As the al'.*rt.rr'in the i',...,t.itv of. reaching a subjective

NewYorliCourtofAppealsob..tut.ot""",titudeonthefactsinis-
served, ancl we agree, "a per.so.n ac- ;;;'" Dorsen & Il'ezneck' In re

cuseci of a crime .-]'. rn,oul,t be at Cn-uit anci the Trutu,e of Juveniie

& scvcre clisacivantagc, a ciisttdvan- I;;t"' 1 family- ^Law Quarterly' No'

tage amounting to'Tiactc of tunaa- 4' pir' i' 26 (1967)'

il'.X,ii'fi llli' 
i;;l iill,tli,ff ii n 

"l1i: 
:.,',:",i ^li', 3',il i.,f,1;:il,t,,';

I;iilr:l j}.JtJfi'ti'ir:i l..i'^'li}f; com,.*trcl tire resuect *nri cotr{icicncc

....:;.-i+ xvza, ^i 
ioi,- z+r.rqEza, fi1.ttili,'X,T.illJf Ii i'XtXffi:ll'ilt

at 259' tirc moral lorcc of thc criminal hw
l6l The r.ccluireme:rt of proof be- ,iol U. ciilutecl by a standarcl of proof

yon,i o reasonable cloubt has this liat lcavcs peoplc in doubt rvhcth-
vital roie in out' criminai ilrocedure e,. innocent men al'e being con-

for cogent reasons, The accused clemncci. It is also important.il -oul:
irilrlg-u criminai prosecution has iiiec socicty that every individual
oi stlke intere'ts of imnre,se im' nolng tri',out his ordinary affairs

I

I
i
I
:

i
i
I
t'.

It
I

l"
!'

D

porton.", both becau^qe of .th.c. 
po,s- iiave"confidence that his government

ii5iiitf tt,nt t,u may lose his libertv calnot adjudge him guilty of a.crim-
,por, lonuiction and because of the inal offense withor.it convincing a

"i*ni"ty 
that he would be stig- ,r*p." factfilcler of his guilt with

matized by the conviction' Ac- utmost certainty.
cordingly, a societY -4

r3e7 us 
'firut ,oiu.. tr'' -of,], :;:t J},'#rl;ili:t 3iJ,i:':l

goocl name anci freedom of everf in- tire reasonable-doubt standard, we

alividual should not condemll a man explicitly hold that the Due Process

for commission of a ci'ime whel Cla*sc i'otects the accused against
there is reasonabie doubt about hts convicti,on except upon proof beyond
guilt. As we said in Spetser Y o 

".o.onable 
doubt of every fact

Lanciall, supra, at 52'o-526, 2 L EcL lu....u"v to constitute the crime
2d. at 1472, 1473: "There is aiways with which he is charged.
in iitigation a margin of error, rep-
resenting error in factfinding, which tsg? us BGEI

both parties must take into account' II
Where one PaltY has at stahe an in-
terest of transcending value-as a i8-l ol We turn to the question

criminal defencia,t:h-ii tiuertv-tiris whether juveniles, like adults, are

r
I,l

lr,il.i
i
r

I
I

':



376 U. S. SUPREME COUR,T REPORTS 25 L Ecl2d

constitutionally entitled to proof be-

yond a reasonable doubt rvhen theY

are charged with violation of a crim-
inal law. The same considerations
that demand extreme caution in
factfinding to protect the innocent

adult aPPIY as well to the innocent

child. We do not find convincing
the contrary arguments of the Nerv

York Court of Appeals. Gnr'rlt rcn-

clered untenable much of the reason-

ing relied upon by that court to stts-

taL tire constitutionality of .s 744

ibi. The Court of APPeals indi-
caied that a clelinquency adjuclica-

tion "is not a 'conviction' (sq 781) ;

that it affects no right or privilege'
inoilainc the right to holcl public

offi." o.1o obtain a license (S 782) ;

and a cloak of protective conficlcn-

tiality is thrown arorlntl nll the pro'

ceedings (S.s ?83-?84)." 24 N\2d'
at 200, 24? NE2d, a|,255-256' The

court said further: "The delinquen-

cy status is not made a crime; ancl

ihe proceedings are not criminal'
tit."u is, hence, no cleprivation o.f

aiiu pto...s in the'statr"rtory D,rov1'

;t.t - [chnllengecl bY nPPellantl

:--.- . 
-." 

24 NYzd, at 203, 247 NrI
2d,, at 257. In effect the Court of

eppeat. distinguishecl the proceecl-

lngs in qrlestion here from n crim-

inerf prosecution lly tlse of 
-rvhnt

Gnult called the " 'civil' labci'of-cL)r1-

,.ni*.. which hns been attached

to juvenile Proceedings'" 387- US'

,i so, 18 L Ecl 2cl at 558' But Gault

expressiy rejectecl that clistinction
u*' n ,.o.on for holcling the Duc

Process Clause inapplicable to a ju-
venile proceecling. 387 US, at 50-
51. i8 L Dd 2r1 at 558, 559' . The
Court of Apperrls also rttemptecl to

Gtifv the-preponclerance stanclard

t" ifri, relatecl grouncl that juvenile
procecclings are clesigned l'l9t ^t9
irunl=il, Uut to save the child'" 24

fryz,t, at 19?, 24? NE2d, al 254'

Again, however, Gault exPresslY re'
jecteci'this justifrcation. 387 US, at

bl, ts L Ecl 2d at 545. we made

.fun, irr that clecision that civil labels

nncl goocl
139? us 3661

intentions do not them-

selves obviate the neecl for criminal
ilr'''u pro.o*s safeguarcls in iuvenile
.o.i"tt, for " Ia] proeeecling rvhere

ii'tu i=.uu is rvl,ether the child will
be founcl to be 'clclinquent' and sub-

iccte,:l to thc loss of his liberty for
uanr. is compnt'tblc in seriottsness

io n tulo"v piosectttion'" Ic'[', at 36'

18 L Edt 2d at 551.

lt I.1 Nor c1o lve Perceive any mer-
it in the argttment that to afforcl ju-
venilcs thc protection of proof he'
yonc'[ n rcnsonable tloubt woulcl risk
ilestruction of beneflclal aspeets of
the jr-tvenile process.n Use of the

reasonable-cloubt standarcl ciuring

the acljur'iicntory hearing rvill not

rlisturlr Ntrw York's po)icies thnt n

finclinr thlt n chiltt hrrs violntctl n
criminal iarv cloes not" constitute a

crirninal cotrviction, that such a find-

ing Coes not cleprive the child of his

civil rights, ancl that juvenile pro-

cleclings are conficlentia]' Nor will

prOr
tot

r
s cl.'\
!s, n
nrn

1.0 t
:1.C9

ofr

ci,,tc

c tll
L-ir it
iot'
,rlir

r:f i
irrc,

\

4. Anpellee. Nerv York City, apprrent-y

"orrted.s 
as much in its I-h ief , prgc u,

'rrTlhe rcasonablc cloubt test is supcrior

to all 
-othcrs in protecting tgainst al un-

:ir.f 
",:,r,:,..tion 

of ruii", artl rhat is rts

,n,-:..1,,i conccrn of thc juvenilc coul't as

;i';ir" critninrrl court' lt is tii{licult to

I."'rr"* ,it" tlistinctive objectives o{ thc

lnuenit. court qlvc rise to n lcgitimnLe tn-

l;ilii;;;l 
-i^tcrcst in frncins a --iuvcnilc

;;havc-;;**ittr:d a violation of the crim-

i, r,l l,i,u on lcss evidence tlran if hc were

art urlttll."

rvhere it states:-';fi.",i.t."*iiation that the Nerv York

law unconstitutionally denies due procc.ss
-tu.uu." 

it cloes not provicle for use of the

,.i*""^ui. aouri tt*aord probably rvoultl

;;;-it;;; a serious impact if -zrll 
t-hat, re-

ririt"ii-',"outa be n change in the quanlun.t

of Droof."'^ (nir- bo..en & Rezneck, suprn, nt 27,

hove observed:



Ri, \l/iNsliiP
397 US 356, 25 L Dd 2" 30S, C0 s ct 1068

377

ther.e be any effect on thc infor.niai- of thc jgvelile pl'occss." Gault, su-
ity,.flexibility, or speeo of tire hcar'- pra, at 2i,i8 L trd 2d at 543.

ing at tvhich the factflndrng taiies
place. And the oppoltunity ciuriiig
the post-adjudicatory ot' tiisposi-
tional hcaring for a rvide-rang'ing
revietr' of the child's social history
and for his individualized tleat-
ment will remain unimpaired. Sim-
ilarly, there wili be no effect on the
procedures

,t3C7 US 3G7l
t.,istinctive to juvenile

proceedings that are employed prior
to the adjudicatory hearing.

Il2l The Coult of Appeals ob-
served that "a child's best interest
is not necessarily, or even probab)y,
promoted if he rvins in the Partic-
ular inquiry rvhich may bling hinr
to the juveniie court." 24 NY2d, at
799, 247 ND2d, at 255. It is true,
of course, that the juvenile maY be

engaging in a general course of con-
duct inimical to his welfare that
calls for judicial interruention. But
that intervention cannot take the
form of subjecting the child to thc
stigma of a finding that hc violated
a criminal lawo and to the possibility
of institutional confinement on proof
insuflicient to convict him were he
an adult.

We conclude, as we concluded rc-
garding the essential due process
safeguards appiied in Gault, that thc
observance of the standard of proof
beyond a reasonabie doubt "will not
compel the States to abandon or dis-
place any of the substantive benefits

l3l Finaliy, we teject the Court
of Appeais' suggestion that there is,
ii: arry event, only a "tenuotts differ-
cnce" bctwecn the reasonable-doubt
ancl iri'ei:ondcrancc standards. The

, suggestion is singulariy unpersua-
sive. In this very case, the trial

:iudge's ability to distinguish be-
'iu'cel1 the two standards enabled
him to make a finding of guilt that
he conceded he mig'ht not have made
unrler tlie standard of proof beyond
l reasonable doubt. Indeed, the trial
juclge's actiou cvidences the ac-
curacy of the observation of com-
mentators that "the preponderance
tcst is susceptible to the misinter-
pretation

t.397 uS 3661

that it calls on the trier of
fact merely to perform an abstract
rveighing of the evicience in order to
determine which side has produced
t)re greater quantum, without re-
gard to its effect in convincing his
niind of the +"ruth of the proposition
rrssertcd." Dorsen & Rezneck, su'
pra, at 26-27,0

III
l'31 In srlm, the constitutional

safeguard of proof beyond a re&son-
able cloubt is as much required dur-
ing tlie adjudicatory stage of a de-
Iinquency proceeding as are those
constitutional safeguards appiied in
Gault-notice of charges, right to
counsel, the rights of confrontation

5. The more comprehensive and cffective
the procedurcs used to prevent public <iis-
closure of the finding, the less ihe dangcr
of stignra. As we inciicated in Gault, how-
ever, oflen thc "claim of secrecy
is more rhetoric than reality." 38? US,
at 24,18 L Ed 2d at 544.

6. Compare this Couri's rejection of the
prcponderar^ce standard in deportation pro-
ceedings, where rve ruled that the Govcrn-
nrcnt must support it,s allegations with
"clear, unequivocal, and convincing evi-

dcnce." Woodby v I:nnrigration and Nat-
uraiization Service, 385 US 216, 285, L7
L ild 2d 362, 369, 8? S Cr 483 (1966).
Although we ruled in Woodby that depor-
trtion is not tantamount to a criminal con-
viction, we found that sincc it could lead
to "drastic deprivations," it is impermis-
sible for a person to be "banished from
this country upon no higher degree of
proof than applies in a negligence c8se."
Ibid.



3?8 U. S. SUPREME COUITT REPOR?S 25LEd2d

and examination, and the privilege
against self-incrimination. We
therefore hold, in agreement with
Chief Judge Fuld in di-ssent in the
Court of Appeals, "that, rvhere a

12-year-old chlld is charged with an
act of stealing which renders him

SEPARATE

Mr. Justice Harlan, concurring.

No one, f daresay, would contend
that state juveniie court trials are
subject to tzo federal constitutional
limitations. Differences hat,e ex-
isted, horvever, among the members
of this Court as to tulmf constitr,r-
tionrl protactlons do npply. Sce In
ro Gonlt, S87 US 1, 18 L Iid 2cl
627,87 S Ct 1428 (1967),

[397 US 369]
The present case draws in ques-

tion the validity of a New York
statute that permits & detormination
of juvenile delinquency, founclecl on
a charge of criminal conciuct, to be
made on a stanclard of proof that is
less rigorous than that rvhich would
obtain had the accuscd been triecl
for the same conclttct in an ordinary
criminal case. While I am in full
agreement that this statutory provi'
sion offencls the requirernent of
fundamental fairness emboclied in
the Due Process C]ause of the
Fourteenth Amendment, I am con-
strainecl to add something to what
my Brother Brennan has rvritl;en for
the Court, Iest the true ttature of thc
constitutional problem presentecl be-
come obscured or thc imnact on star:e
juvenilc court systems of rvhat the
Co,"rrt holds today be exaggerated'

I.
Professor Wigmore, in discussing

liable to confinement for as long as
six years, then, as a matter of due
process the case . against
hirn must be proved beyond a l'ea-
sonalrle donbt." 24 NY2cl, at 207,
247 Nn2cl, at 260.

Reversed.

OPINIONS

the various attempts by courts to
define horv convinced one must be to
be convinced beyoncl a reasonable
cloubt, wryly observed: "The truth
is that no one has yet invcnted or
discovered a mocle of measttrcttrenL
for the intensity of httmntt Lrclief.
I-Tenco the::e cun be yet no srtccessfttl
methocl of communlctrtlng intel'
ligibly , a sound methocl of
sclf-analysis for one's belief," I
J. Wigmore, Evidence 325 (3cl ed.

1940 ) .r

Notwithstancling Professor Wig'
more's skePticism, rve have before
us a case rvhere the ehoice of the
standarcl of proof has made a diff-
erencc: the juvenile court iudge bc-
lorv forthrightly acknorvleclgecl that
he bclieved by a preponclerance of
the evidence, but was not convincecl
beyond a reasonable doubt, that aP-
pellant stole $112 from the complain-
ant's pocketbool<. Moreover, even
tho',rgh the labels used for alterna-
tive standlrds of proof are

t307 us 3701

vague
and not a very sure guide to tleci-
sionmr.king, the choice of the stand-
arc', for a particulal vaiety of adju-
clicat:on does, I think, rellect a very
funria.mentai assessment of the eom.
parative social costs of erroneoLl,s
faetual determinations.2

tu
t)rr
c,Il

].'cr"

of
rvll
c:1,

e.Ll

1. See also Paulsen, Juvenile Courts and
thc Legacy of 'e7, 43 Ind LJ 527, 551-552)
( 1e68).

2. For an interesting annlysis of stand-
ards of proof see I(aplan, Decision Theory
anrl the l'actlinding Process, 20 Sr;an L Rev
1Cf5, r.07i-i077 (19C3).

rci::,

c',':(.



RE V/iNs}i,ir
39? US 358, 25 L Ed 2,1 li08, 90 S Ct 1066

379

To explaiii wiiy I think tnls so, iiancl, all erroneous factual determi-
I bcgin by staiing' two proposil;iotis, :-iirtioii can result iii a judgment for
neitf,er of which i believc can bc tuc rlefenclant wilell the true facts
fairiy cfisputecl. lfirst, iir a .iuclicirui iustify a iudgment in plaintiff's
proceedinb in which tirere is a dis- i'avor. The climir:al anaiogue would
pute abou-t the facts of some earlier be the acquittal of a guilty man.

event, the factfinder cannot acquire
unassailably accurate knowleclge of
what hnppened. Instead, all the
factfincler can acquire is a belicf of
what probablll happcned. Tire in-
tensity of tl,is bejief-the degiec
to which a factfinder is convincecl
that a given act actuaily occurred-
can, of course, vary. In this regarci,
a standard of Proof rePrcsents an

attompt to instruct the factfinder
collcerning thc degr'ee oI conficleni:o

our socioty tirinks lte s)rould hr.tve in
the correclness of factual concitl-
sions for a par-ticular type of :rc'i-

judication. Although the Phrases
i'preponderance of the evidence" and

"proof beyoncl a reasouable cloubt"
aie quantitativcly inrprecisc, they do
communicate to the finder of fact
different notions concerniug thc de-
gree of confideuce he is expccted to
have in the correctness of his fac-
tual conciusions.

A second proposition, which is

reeily nothinS'moro thall a corollary
of the fir'st, is that the trier of fact
will sometirnes, despite his best
efforts, be rvrong in his factu:tl con-
clusions. In a lawsuit between two
parties, a factual crl'or catt mal(e
a difference in one of two waYS.

First, it can resr.ilt in a judgment in
favor of the plaintiff when tire true
facts warrant a judgment for the
defendant. The analogue in a crim-
inal case would be the conviction

1397 US 3711 
of

an innocent man. On the oUrer

The standai'd of proof infuences
i.le relative frequency of these two
'r;,pes of crroneous outcomes. If,
for exami:Ic, the standard of Proof
fo; :r, criminal trial were a Pre-
1:onclerance of the evidence rather
than i:;L'oof beyond a reasonable
cioubt, ';hcre wouid be a smaller risk
of factual errors that result in free-
int'guilty persons, but a far greeter
risit of flctual 0n'0rs that rcsult in
couvictintf tire iunoco:lt. Bocause

tlic stanclard ot' pl'oof alTects the
comparative frequency of these two
types of erroneous outcomes, the
choice of the standard to be applied
in a particular kind of litigation
sirouicl, itr a rational worid, reflect
all assessment of the comparative
social disutility of each.

When one makes such an assess-
ment, the reason for different stand-
arus of proof in civil as opposed to
criminal litigation bccomes aP-
parent. In a civil suit between two
lirivatc pa;:ties for money damages,
for exampie, we view it as no more
serious in general for there to be
an erroneous verdict in the defend-
ant's favor than for there to be an
crroueous verdict in the plaintiff's
favor. A preponderance of the evi-
cjence standard therefore seems pe-
cuiiai:Iy appropriate for, as ex-
piained most sensibly,B it simply re-
quires the trier of fact "to believe
tirat the existence of a fact is more
probable than its nonexistence be-
fore [he] may flnd in favor of the

3. The preponderance test has bcen crit-
icized, juitifiably in my view, whon it is
read as asking the trier of fact to rveigh
in some objective sense the quantity of
evidence submitted by each side rather

ihan asking him to decide what he be-
lievcs most probably happened. See
J. Maguire, Evitlence, Common Sense and
Common Law 180 (1947).



380 U. S. SUPREME COURT REPORTS 25LEd2d

of error is reduced as to him bY the
process of placing on the other party
i;he burden of Persuading
t)re fect linder at the cottcltl.sion o1'

rh.. tri:rl rrf ltis -tttilt tl<'1'trttd ll tllt-
-...::ll L.l.' iirrl:\1. "

party
t397 US 3721

rvho has the burden to Per-
suade the Uudgel of the fact's
e-dstil:ee."{

In a c--iminsJ e-rse, on tl:e other
hand, we clo not vierr the social cii's-

utility of convicting an innocent man

us equiv*tent to the disutility of ec-

ouiit=irg someone rvho is guilty' 1\s
ilfr. i'.,Iti.u Brennan rvrote for thc

Llrri i" SPeiser v Ranclall, 357 U'S

Jli, szs-szl, 2 L Ecl 2d 1460, 1472'

78 s ct 1332 (1e58) :

"There is alwaYs in litigation a

marcin of error, representing elrol
in fact fincling, which both parttes

-utt tat . into account' lVhere one

;;;;-rrns at etnke an intarest of
ii"."...rraing valr.re-ns a crimin:rl
;;;;;il"i his libertY-this margin

In this context, f 'r'ieu' the re'qttire-

,nurrt of Proof beYond a reasontrble

,i"iiLt in a criminal case as bottomecl

on-" iuna^mental valtte tlctermina-
iio" of ottr societY that it is far
worse to convict an innocent man

than to let a guilty man go fre€'

It is onlY because of the nearly

.o*pl.tu antl long-standing accept-

tnce of the reasonable-cloubt stancl-

^"J-fv 
the States in criminal trials

tfrnt ift" Court hns not before today

f',rla- to f',ota explicitly tln! due

proceBs, trs &n expression 9f fu111:
;;;a;i ;;ceclural f airness,! reqttires

.t'.n J*"es, Civil Procctlnto 250-151

trilsl'; ..0 u.'rro"gttn, Sotrtc lroblcrns of
tho uncontrovcrtcrl scholnrly Iqtollth
i,,it*iii J.iiriinr II. FInck, The.Atloption

i;;;' iJ;;;. the Anslo-Amcricun SYstem ;i';; ;;;i;;.unitl,r.*onanient (1e08)' re-

;;;;;r;A"-intendment of the Due.Proc'

il; cl;"rt; ;f ihe Fourteenth r\mendment'

I.. r;iti.i.t, docs iho Fourtecnth l*tLc'
i;;"; i;;;il*io il''o Bul of Rights?- rhe
'di;il;i fiderstancling, 2 S"an L. R::-.6.

iroigf. IntlceC, with all respect, the very

i"...it.a in lirother Blaek's dissent as

".i-trl.t*o that "due process ..of lary''

-un",*l;lotu of the lnnd" rejccted the argu'

-ont tt nt nny stntuto, by the mcre p"o"t:":

of cnnctment, mcl the rcquiremcnls-of lne

ixo--i;ro.".. Clause, In Murray's Lcssee

; i";;;;;io",i 's t'P"ov' co" 18 I.Iorv

272, t-c L licl 3?2 (1856), lL lttot,tu*.t.
rvhether a "Cistress w'Irrant" issued.Dy

irr". i"jillL" of-tho Ttuotorv unde-r a1 A1t

o]-Conrr.tt to collect money due for taxes

olft,ntr,e,l the Due Process Clnuse' Jusllce

;;;;k-t*;i.: "Thnt t)te rvnrrrnt 1t* il
.".ttL" is icgnl pl'ocessr lr not donictl' It
rvas issuctl in conformity with nn -nct 

0^l

Congress. But is it 'ciuc proces-s of .ln:r-
The constit'-:tion contains no descrlp[lon

;i'ih;.;-;;;;esses rvhich it was intencled

;; ;i1*" 'or forbid. It cl'oes not even de-

.i^r'.'i"ft^t principles are to bo applied lo

"..*tri" 
i"rt.ttrer it be clue process' ' 'It

;'r"riiiiiort tlvat it was not lef t to tlr'e lel'
islctt.'it-e Ttotoe'r' lo enact u'tl'!! proccss wlvich'

,niolr.t bc deuised' Th'e urticle i's a re'
'riiaiit-oln 

rl,.c lenislaliue as u-ell as o* llrc

"ri"itirt and judicial powers ol tl'"e gott'

of Litigation 8'1-85 (1956)--f."iri'ai.runt 
my Brother Black ngain

otgrut that, tparl from the spccifle pro'

frifilii.nt of' the first cight nmcndments'

"n"-pto..a"tc 
spelled out by a legislnturc

-no- 
matter how unf air-passes constltu-

tional muster under the Due Proccss

6i;;;.. He bottoms his conclusion on his-

i"i'rhi*rt',. claims demonstrntes (1) thl!
ar.'pi*ata "..&ns 

"1[w of tho llnd"; (2)

iri"t'on" rosislntive ennetmont, ipso facto
is nart of tlic larv of the lnnd; rnct' (ll) thrt
Itr6' t'or.t"t.ot th Amendment incorlroratcs
if'r" orofrifritions of the rlill of R'ights nnd

oppfi"t them to the Statcs' I cannot re-

frain from cxpresslng my continued balT'e.-

ment at my llrother Jjlaclt's insistencc t"nlrr

;;;'-;;o;.;., rvhether under the Fonr-

to*Ul A,"onclmcnt or thc l"iftlt Anrcntl'

*.ni, aoot not cmbocly n conccpt of funtlrt'
menttl fnirness ns pttrt of otlr schentc of

.onriitriionnffv orilcred liber+"v' . 
t'iit

ir,..i. ni.. in ihe face of a course of jutli-

.i^f frltt""f reflccted in an unbroken l'rne

;i'- ;;i;t.,i. that have inter-nrcteri <i:rc

p"oau.t to imposc restraints on thc proec-

ilr"o, gorornmcn: mfty rdopt in its tlcrrli,nrl

rvith it.s citizcns, sce' c' g'' thc c:rsr-'s.ct"oti

it rnv aitt."ting opinions in Poe v Ullman'
;e;'tts 4c?, I'22, 3s0-545, 5 L. Ed '?rl rt::rl'

1016-1020, 81 s ct 1752 (190r); :-'Ilt11
;"i;ri;t^;^, 3e1 us 14s, 1?1, 2o L lid :ld

491, 508, 88 S Ct 1444 (1968); &s we^r 8's



.G

li,

oi

a-

tN-

() 0-

i

:1..

t,
.(

ii
' .t'

iiE WINS}IIP
39? US 358, 2i L Ild 2d 36s, U0 S Ct 1006

381

a rnorc :itlinitcnt stundiu'rj foi.
inai tliais than for orciinary
litigation.

i397 LiS 3731
II

Whcn one asscsses the consc-
quenccs o1'an erroneous factua^ cic-
termination in a juveniie crciiii-
quency i:roceeding in which n youih
is accused of a crime, I think it
must bc concludcd that, while the
consequences are

t397 US 3741

not identical to
those in lr crirninal case, tlie diffcr-
enccs \vili not suppol.t a distinction
in thc standard of proof. First, lnd
of paramount importancc, a factuei
error here, as in a criminai case, ex-
poses the accused to a compiete loss
of his pcrsonai liberty through a
state-inrposed confinement awlry
from his home, family, and friencis.
And, second, a delinquency deterrrri-
nation, to some exten'u at lcast, sti,q-
matizes a )'outh in that it is by dcli-
nition bottomed on a fincling: that
the accusecl committed a crirrrc.0
Aithough thcle are no doubt costs
to society (nnd possibly eveu to thc
youth himself) in letting a guilty

clini- :/outh go fl'cc, i think hcrc, as in a
civii criminal case, it is far worse to de-

clare an iunocent )/outh a delinquent.
I therefore aglec that a juvenile
coult judge should be no less con-
vinced of the l'actual conclusion that
the accused committed the criminai
act with which he is charged than
wouid be required in a criminal trial.

IiI
I rvish to emphasize, as I did in

my separate opinion in Gault, 387
us 1, 65, 1.8 L Ed 2d 527, 567,97
S Ct 1428, that there is no auto.
matic congrucnce

1397 US 3751

between the pro-
cedural requirements imposed by
clue process in a criminal case, and
those imposed by due process in
juvcnilc cases.? It is of great im.
portance, in my view, that proce-
dural strictures not be constitution-
ally imposed that jeopardize "the
essential eiements of the State's pur-
pose" in creating juvenile courts, id.,
lu'c 72, 18 L trd 2d at 571. In this
I'egard, I think it worth emphasizing
that the lequirement of proof be-

ernfitent, and cannot ba so construeil c:r,s to
lcaaa conllrcaa lrco to malcc an.lt ,procels

'due proccaa ol lato,' by ita merc u,ilL,"
Id,, at 276, 75 L Ed at 374, (Emphasis
supplied.)

6. The Nerv York statutc r,r'as amenricd
to distinguish betwccn a "juvcnilc <iciin-
qucnt," i. c., a I'outh "who does a1y act
rvhich, if done by an aduit, u'ouid con-
stitute a crime," N. Y. Family Court Act
S 712 (1963), alrd a "[p]erson in neeci o{
supervisron" [P;NS] who is a person "who
is an habitual truant or rvho is incorrigi-
ble, ungovcrnnble or irabitualiy disobeorcni
and bcyond the larvful controi of parcnt
or other lawfui author.ity," Thc PINS
catcgoly wrs cstablished in order to avoid
the stignra of finding someone to bc a "ju-
vcnile deiinquent" unlcss hc commiltcd a
criminai act. The Legislative Comr,riilcc
rcport stated: "'Juveniie delinquent' is
now a terni of disapproval. The judgcs
of the Chiidrcn's Court and the Domestic
Reiations Court of course are aware of this
and also aware that, government otiiciais

and privatc enrployers often learn of an
adjudicntion of dslinquency." N, Y. Jt,
Lcgislativc Cornnrittee on Court Rcorgan-
ization, The Family Court Act, pt, 2, p;
'l (1962), I\foreover, thc powers of the
police and courts differ in these two cate-
,rories of cases. See id., at 7-9. Thus,
in a PINS type case, the consequences of
an ertoneous factual determination are by
no means identicai to those involved hcrc,

7. In Gault, for example, I agreed with
the majority that due process required (1)
adequate notice of the "nature and terms"
oI the proceedings; (2) notice of the right
to retain counsel, and an obligation on the
State to provide counsel for indigents "in
cases in which the child may be confined";
and (3) a rvritten record "adoquatc to
pcrmit cffective review," 387 US, at 72,
18 L Ed 2d at 571. Unlike the majority,
horvevcr, I thought it unneccssary at the
tirnc of Gault to impose the additional re-
quiremcnts of the privilege against self-
incrinrination, confrontation, and cross.
examination.



382

yond a reasonable doubt that a ju-
venile committed a criminal act be-
fore he is founcl to be a delinquent
does not (1) interfere with the
worthy goal of rehabilitating the
juvenile, (2) make anY significant
difference in the extent to which a

youth is stigmatized as a "eriminal"
because he has been founcl to be a

clelinquent, or (3) burclen the juve-
nile courts with a Procedural re-
quirement that will make jnvenile
adjudications significantlY more
time consuming, or rigid. ToclaY's
clecision simply requires a juvenile
court judge to be morc conficlent in
his belief that the yor"rlh did the act
rvith which he has been chergcrl'

lvith these observntions, I join
l,lto (-ottt'1,'tr ottitrirttt, srrlr.iect: ortly t:o

I lrrr r'rttttt I I I tt I lotrrrl t'it!rr(tl'\rtl i ittlttt t'li'
pt'(rfflo(l ltt tttv o;tlttlort lrr ( lrrrrll,.

Mr. Chief Justice Burger, with
whom Mr. Justice Stcwnrt joins, dis-
senting.

The Court's opinion today rests
entirely on the assumption that all
juvenile proceedings are "criminal
prosecutions," hence subject to con-
stitutional Iimitations, This clerives
from earlier holdings, rvhich like to-
day's

t397 US 3761

holding, were steps eroding
the differences betrveen juvcnile
courts and traditional crimj.nr.l
courts. The original coneept of the
juvenile court system was to pro-
vicle a benevoleut and lcss formal
means than criminal corlrts co,;li
provide for clealing rvith the spccial
and often sensitive problems of
youthful offenders. Since I see no
constitutional requircment of due
process sufficient to overcome tlre
legislative .judgment of the Str-rtes in
this area, I dissent from furthcr
strait-jacketing of an alrcady over-
ly restrictecl system. \'v'}lat the
juvenile court system needs is not

U. S. SUPREME COURT REPORTS 25LEd2d

more but less of the traPPings of
legal procedure and judicial form-
alism; the juvenile court.system re-
quires breathing room ancl flexibility
in orcler to survive, if it can survive
the repeated assaults from this
Court.

Much of the judicial attitude man-
ifestecl by the Court's opinion today
and eariier holdinns in this field is

really a protest against inadequate
juvenile court sta{fs and facilities;
we "burn clorvn the stable to get rid
of the mice." The lack of support
and the distressing growth of juve-

nile crime have combinecl to mal<o

for a literal breakdown in many if
not most juvenilc courts. Constitu-
tional problems rvere not seen while
l hosc courts fttnctioned in an ntmos-
nlrr,r'tr \vlrt'r'(r,jttvt,ttilt' .iudtres rvere
rrol, t't'trrtlrctl wit,lt trtt ttvttlttnchc of
ctrtses.

My hope is that today's decislon
will not spell the end of a generously
conceivecl program of compassionate
trcatment intendecl to mitigate the
rigors and trauma of exPosing
yo'rthful offenclers to a traclitional
cr:iminal court; each step we t&ke
tur:ns the clock back to the Pre-
j'.rvenile-court er&. I cannot regard
it as a manifestation of progress to
l:r'ansform juvenile courts into crim-
ina] courts, u'hich is what we are
well on the way to accomplishing.
\,Ye een only hope the legislative re-
spcnse rvill not reflect our own by
having these courts abolished,

1397 US 3771
Mr. Justice Black, clissenting.

The majoritv states that "many
opinions of t)ris Court indicate that
ir; has long been assumeC that proof
of a. criminai char.qe l:eyond & rea-
sonable r'loubt is eonstitutionally
r:cquired." Ante, at :162, 25 L Lcl
2ti at 374. I have ;oinecl in some of
t)'rose opinions, as rvell as the clisscnt-
ing oprnion of Mr. Justice Frank-

'?iPEF..r'..r*,"r



ilE \;,/iNsliil'
39? US 358, 25 L lld 2d 1168, 90 s ct 106E

furter i1 Leianrl v Oregon, 343 US the statement by the dissenting
?90, 802, 96 L Dcl 1302, 1310, ?2 S juuges in the New Yorl< Court of
ct 1002 (1952). The court has Appea,s that failule to require proof
ncvel' cleariy heid, horvever, that bc1'sn6 a reasonable cioubt amounts
proof beyoncl a reasonabic cloubt is to a "iack of funciamc:rtai fairness."
cither expressly or implieclly com- r!n];e, at, 359, 363, 25 L Ed 2d, at,

manclecl by any provision of the Co:r- 3'12, 375. As I have sairi time and
stitution. The Bili of Rights, which tinac agai1, I plefer to put my faith
in my vicrv is macie fuily applicabie in the rvorcls of the rvritten Consti-
to the States by the Fourteenth trttion itself rather than to rely on

Amenclment, see Adantson v Caji- the shifting, day-to-clay standards of
fornia, 332 US 46, 7l-75, 91 L Dci failness of individual judges.

383

1903, 1918-1925, 67 S Ct iG72,171
ALR 7223 (1947) (dissenting opin-
ion), ctoes b1' express language pro-
vide for, among other things, a riilht
to counsel in crimitial trials, a right
to inclictment, and the right of a
defendant to be informed of tho
nature of the charges against him.l
Anri itt tu'<; llltccs tlro Cotrsl,il,rr-
tion provides for trial by jury,'
but nowirere in that document is
tirere any statement that conviction
of cr:ime requires pl'oof of guiit be'
yond a reasonable doubt, The Con-
stitution thus goe,s into some <ietaii
to spell out what kincl of trial a oe-
fendant chargecl with crime should
have, and I believe the Court lias
no power to add to or subtract from
tho lllocedures set forth bY the
Founders, i reaiize that it is
far easier to substitute individual
judges' iclcas of "f&il'ness" for the
fairncss prcsct'ibcd by thc Consrtitu-
tion, but I shnll not at any time sur-
renrier my beiief that that documcnt
itsclf should be our guicie, not our
ow)1 concept of what is fair, cleceut,
tnrl right. That tiris oiil "shock-thc'
conscience" test is what the Oourt
is rclying ort, rathcr than the words
of the Constitution,

1397 US 3781

is cieally enough
rcvcnlccl by thc rcfcrencc of thc
majority to "flir treatmcnt" anci to

I
Cui Constitution provides that no

pcrson shali be "dcprived of life,
iiberty, or property, without due
process of 1aw,"3 The four rvords-
due process of iaw-have been the
ccnter of substantial lcsal debato
ovcr t,)tc ),er!rs, Scc Chrrtrlbct'fl v
lrlotida, 309 US 227,235-236, and n.
8, 84 L Ed 716, 721, 60 S ct 472
(i940). Some might thirili that the
rvords thcmselves are vague. But
any possible ambiguity disappears
rviicn tire phrase is viewed in the
iight of history and the accePted
rneaning of those 'a'ords prior to and
at i;he time our Constitution was
written.

"Due plocess of law" was orig.
inally usecj as a shorthand expres-
sion fol governmental proceedings
accorciing to the "iaw of thc land"
as it existed at the time of those
procceriings, Both phrases are de-
livccl from the laws of Ilngiand and
havc traditionally bcen rcgarded ls
nreaning the s&me thing. The
llarrrr Ciirta providcd that:

"No Frceman shail be taken, or
rnipr';soucd, or be disseised of his
irreehoid, or Liberties, or free Cus-
toms, or be outlawed, or exiled, or
any otherwise

[397 IiS 379:i
dcstroycd; nor will we

i
I

I

l

I

I

I
r'

1. Amdts, V, VI, U.
2. Art, III, $2, cl 3;

Congtitution.

S. ConstiLution.
Amdt. VI, U. S.

l]. Thc Fifth Amendment applics this
iimitation to ihe lccieral Government and
tl.ie Fourieenth Amcndment imposes the
same lestriction on the Stateg.



sda

not pass upon him, nor condemn him,
but by larvful Judgment of his Peers,
or by the Larv of the Land."a

Later English statutes reinforced
and confirmecl these basic freecioms'
In 1350 a statute cieclarecl that "it is

contained in the Great Charter of the
Franchises of England, that none

shall be imprisonecl nor pttt out of
his Freeholcl, nor of his Franchises
nor free Custom, unless it be bY the
Larv of the Land ' ."5 Fo'lr
vcnrs later another stntttte provicied'
i [t] t rt no ]Ian of rvhnt Estrte or
Conaition that he be, shall be put out
of Land or Tenement, nor t:rken nor
imprisonecl, nor clisinherited, no1 lltt
to Death, rvithout bein.q brousht in
Answer by ctue Process of the LIIW"'0

Ancl in 13-63 it was proviclecl "that no

man be taken or imprisonecl, nor pnt
out of his freeholcl, lvithout process

of law."7

Drawing on these and other
sollrces, Lord Coke, in 1642, con-
cluded that "cluo process of Inw" rvlts
synonymous rvith the Phrrse "bY
lalv of the lancl."8 One of the ear-
liest cases in this Co''rr:t to involve
the interpretation of the Due Proc'
ess Clause of thc Fifth Amendmertt
declared thnt " [t] )te rvorcls, 'cltte
process of Inw,' rvere untloubteclly
intencled to convey the srmc mcan-
ing as the words 'bY the larv of tire
Iand' in Magna Charta." llurraY's
Lessee v Hoboken Land & InoProv.
Co., 18 Ho'rv 2?2, 276, 15 L trc'l 372'
374 (1856).

While it is thus unmistakably clear
that "due process of lalv" means ac-

cording to "the law of the lanc'I," this

U. S. SUPREME COURT REPORTS 25LEd2d

Court has not consistentlY deflned
rvhat "the larv of the

t397 LIS 
"o1nrrd" means

and in my view members o{ this
Co,-rrt frequently continue to mis-
conceive the correct interyretation
of thlt phrase. In Murrly's Lessee,
supra, Mr. Jttstice Curtis, speaking
for tire Court, statecl:

"The constitution eontains no cle-

scription of those processes rvhich
it rvas intended to ailorv or forbid'
It r-loes no[ ovon cleelare what prin.
ciples are to be applied to ascerta"in
lvhether it be dr,re proeess. It is
manifest that it rvas not ]eft to the
legislntive power to enact any proc-
ess which might lle clevised. The
:rrticle is a reiitraint on the legisln-
tive ag rvell as on the executive and
jur'iicial powers of the government,
irnci cannot be so construed as to
lcave eongress free to make any
process, 'clue process of law,' bY
its mere rvill. To what Prin'
ciples, then, nre we to resorb to
aseertain rvhether this Process'
enaclecl by congress, is due Proc-
ess ? To this thc answer must
be tlvofolcl. We mttst examine the
constitution itsclf, to see n'hetJrer
thll process be in conflict with nny
ol' its nlovisions. If not found to
])e so, rvc must look to those scttlecl
usages ancl modes of proeeecling ex-
isting in the common and statute
lr.w of England, before the emigra-
tion of ottr ancestors, and lvhieh are
shorvn nor to have been unsuited to
';hcir civil and political condition by
hrvjng been actecl on bY them after
the settlemcnt of this country." Icl.,

t.r 27G-277, 15 L trcl at 374.e

B
;,
L

L
ta

(

qr

4. 9 Hen. 3, e 29 (1225). A similar
provision appeared in c. 39 of the oritrinai
issue signetl by King John in 12]'5'

5. 25 Edrv, 3, Strtt 6, c. IV.
6. 28 Edw. 11, c, iII.
7. 3? Edrv. 3, c. XVIII.
8. Coke's Institutcs, Second Part,,50 (1st

ed 1642).

9. Cf , United. States v HuCson, ? Cranch
32, 3 \' Ed 259 (1812), in rvhich the Court
]rcjrl that thcrc wns no jurisrlictlon in fcd-
,'r'irl cotrrts to try criminnl chnrlScs bnsed

on ll'.c cornnron lrtrv nncl that ll1 fedcrnl
,,r'imt,; m'.rst bo bnsed on n stltutc of Con'
.I]" e s 

(i.

.r i'i. . ,t'1



RE \,VINSI.IiP 385
B9? US 358,25 L ird 2d 368,90 S Ct 1008

Latel in Twinir:g v New ,Iersey, 2i1 ,rr tiiose worcls is found the kernel
US 78, 53 L Eci 97, 29 S C'c i.1, of i,hc "natural iaw due process" no-
(1908), IIr. Jusiice }Ioociy, agaiti 'r.ion by which this Court frees itself
speaking for the Court, reaflirmed .i'r:on: the limits of a written Consti-
that "due process of law" meant "by ,;ut;ion and sets itself loose to de-
law of the

t397 US 3811

lanci," but he went on to
modify I{r. iustice Cr.rrtis' deflnition
of the phrase. IIo stateci:

"I,'ilst. What is ciue process of
larv may be ascertained b), an exall-
ination of those settled usages auci
mocles of proceedings existing in thc
common and statui;e larv of Engiand
before the emigration of our ances-
tors, and shown not to irave been
unsuited to their civil and, poiitical
condition by having been actcd on
by them after the settlement of this
country.

"Second. It docs rrot foiiow, horv-
ever, that a pl'ocedut'e $ettjed in
English law at the tirne of the cmi-
gration, and brought to this country
and practiced by our ancestors, is
an essential element of due process
of law. If that were so the pro-
cedure of the flrst half of the sevcn-
teenth centuly would be fasteneci
upon the Amcrican jurisl:rudence
like a straight-jacliet, only to bc un-
loosed by constitutional amend-
ment.

"Third. But, consistently with
the requirements of due process, tlo
change in ancient procedure can be
made which disregards those funda-
mental principies, to be ascertained
from time to time by judicial action,
rvhich have relation to process of
law and protect the citizen in his
private right, and guard him against
the arbitrary action of govern-
ment." id., at 100-101, 53 L trd at
106, 107.10

10. Cf. the views of Mr. Justice Iredell
in Calder v 8u11, 3 Dali 386, 398, 1 L Ed
648 (1?e8).

l2SLEdZd)-2s

clale any iarv unconstitutional that
"shoctrs its conscience," deprives a
person of "fundamental fair"ness,"
or vioiatcs the principles "impiicit
in the concc;tt of

t397 US 3E2l
ordered liberty."

See Rochin v Califomia, 342 US 165,
\72, 96 L Ed 183, \90, 72 S Ct 205,
25 ALRZd 1396 (1952); Pall<o v
Connecticrit, 302 US 319, 325, 82 L
Ed 288, 292, 58 S Ct 149 (1937).
\4rhile this approach has been fre-
clnently used in deciding so-called
"procedural" questions, it has
cvoiveci into a device as easily in-
voked to cleclare invalid "substan-
tivc" Iaws that suflicicntly shoc)< the
consciences of at least five members
of this Courl. See, e. g., Lochner v
i$ew York, 198 US 45,49LDd937,25
S Ct 539 (1905) ; Coi:page v I(ansas,
236 US 1, 59 L Bd 441, 35 S Ct
240 (19i6) ; Bulns Baking Co. v
Bryln, 264 US 604, 68 L trd 813,
44 S Ct 412, 32 ALR 661 (fiz$;
Grisra'oid v Connccticut, 381 US 479,
14 L Ird 2d 510, 85 S Ct 1678 (1965).
I have set forth at length in prior
opinions my own views that this
conccpt is completely at odds with
the basic principle that our Gov-
crnment is one of limited powers
and that such an arrogation of un-
limited authority by the judiciary
cannot be supported by the language
or the history of any provision of
the Constitution. See, e, g., Adam-
son v California, 332 US 46, 68, 91
L Ed 1903, 1917, 67 S Ct 1672,177
ALR 1223 (1947) (dissenting opin-
ion) ; Griswoid v Connecticut, supra,
at 507, 14 L Ed 2d at 529 (1965)
(dissenting opinion).



386 U. S. SUPREME COURT REPORTS 25LEd2d

In my view both Mr. Justice
Curtis and Mr. Justice lloody gave

"due process of lal" an unjustifiltbly
broad interpretation. For me thc
only correct meaning of that phrase
is that our Government must Pro-
ceed according to the "larv of the
land"-that is, according to rvritten
constitutional ancl statntory provi-
sions as interpreted by court deci-
sions. The Dr"re Process Clause, in
both the tr'ifth and Fourteenth
Amendments, in and of itself does

not add to those Provisions, but in
effect states that our governments
are governments of law and constitu-
tionally bound to act only aeeording
to lnw,lr To some thnt viol may
seem a degracling ancl niggarclly

view of what is uncloubtedly a
fundamental part of our basic free-
cloms.

t397 us 3331

But that criticism fails to
note the historical imPortance of
o'rr Constitr,rtion and the virtual
revolntion in the history of the gov-

ernment of nations that was

achievecl by formin.g a government
that from the beginning had its lim-
its of porver set forth in one rvritten
document th:rt

1397 US 3841

also made it abun-
dantly clear that all governmental ac-

tions affecting life, liberty, and prop-
erty rvere to be re.cortling to law,

For years our ancestors had

11. It is not thc Duo Process Clause of
the Fourteenth Amendment, starrdintr
alone, thnt rcqulres my conclusion thnt
thot 

'Amendment 
rvas intended to apply

fully the protection of the Bili of Rights
to actions by the States. That conclusion
follorvs from the language of the entire
first section of the Fourteenth Amcnd-
ment, as illuminatcd by the legislative his-
tory surrounding its ncloplion, !90
Adirmson v Cnlifornin, suprn, rt 7l-76'92-
123, 9l L Ed 1919-1921, 1930-1940, 171

ALR 1223,

Mr, Jr,rstice Harlan continues to insist
that uncontrover+.ed scholarly research
shows that thc lourteenth Amendrnent tlid
rtot incorporatc the Bill of Iiights ns lim'
itttlons on thc Stntes. See Poc v Ullntrtn,
30? us ,LDl ,540,6 L nd 2d ls(], 1017, tll
S Ct 1?52 (1961) (dissenting opirrion);
Grlsrvolcl v Conrtecticr.lt, suprn, at 5C0, 14

L Ed 2d at 524 (eonculring in j'"rdg-

ment); ante, at 372,3"13,25 L Ild 2d at 330'
381, n. 5. I cannot understancl that con-
clusion, Mr. Fairman, in the article rc-
peatedly cited by I'Ir. Justice Harlatr, sur'-
vcys the legislativc history and concludt's
that it is his opinion tha+. the amendmetrt
did not incorporate the Bill of Rieh+,s.
Mr. F1aek, in at least r'n equr'Ily "scholat'-
1y" rvriting, surveys substantiaiiy the
same tlocnntents relicd upon by ]Ir. Fair'-
man and concludcs that a prime ol:jec1:ive
of Congress in proposing the atloption oI
the Foulteenth Atrrcndtnent rvas " It] o

make thc Bil'i of Rights (the first eigltt
Amcndmonts) bindinf tl)or1, clr rrpplicnlrlc
to, the Stntes." C'ompnre I-L Flncli, 'l'le

Adoption of the lourteenth Amendment
!4 (110S), rvith Fnirmrn, Does the Fo-u.r'

tecnth Amcn<lment Incorporate the IJill
of Riqhts? The original Uncicrstnnding,
2 Stan L Rev 5 (1949). Il is, of course,
significant that since the adoption of- the
Fo,-rrteenth Amendment this court has held
almost all thc provisions of the Bill of
liishts applicnble to thc States: The First
,\nienclmcnt, e. g., Gitlorv v New York,
20s us G52, 69 L Ed 1138, 45 S Ct 025
(1tr25) ; Cnntrvell v Connecticut, 310 US
i,tc, aa L Ed 1219, Bo s ci 9oo, 128 ALR
1ll;2 (1940) ; Edrvards v Soulh Carolina,
372 US 229,9 r' Iid 2d 617, 83 s ct 680

(1Lr6l) ; the Fourth Anrentlment, )Iapp
v Ohio,30? US 643,0 L [ri 2d 1081, 81

ll Cl 16s4, 8a ALIt2d 9lt:l (1001); tho
If iflh Arncndrnont, Chicrtgo, B. di Q. It. Co.

v Chieaso, 1oo Us 220, 'tt L lil(i 979' 1?

ti Ct 5S1 (1S9?) ; Mnlloy v llognn, 3?ii

us 1, 12 L IId 2d ti53,84 s ct 148C

(136,i), Penton v \Iary1zrnd,3S)5 t'S ?€4,
23 L Itd 2d 707,89 S Ct 2056 (1969);
the Sixth r\mcndmcnt, Gideon v Wain-
rvlight, 372 US 335, I L Ed 2d 790, 83

S Ct 792, 93 ALIt2ti ?33 (1963); Pointer
v 'liexas, 3U0 I"S '100, 13 L lltl 2d 923, 85

S Ct 1005 (1965) ; I(lop{er v North Caro-
lina,380 US 213, 18 L Id 2r1 1,87 S Ct
f lS (1967) ; Duncan v Louisinna, 391 US
:-/,3,20 L Ed 2(1 491, 88 S Ct 1444 (1968) ;

and the Eighth Amendrnent, Rob:nson v
California, 3?0 US 600, 8 L Iid 2d 758, 82

S Ct 141? ( 1962 ). To me this historY
inC:cates that in thc end !1r. Iri:rck's thesis
h.n:r farocl mrrch botter than ]Ir, Fnirmnn's
"urreontroverterJ" seholrtrship.

t25 L EC 2dl



2d

)c-

It can be, and has been, aigiied
that when this Court strikes down a
legislative act because it offends the
idea of "fundamental fairness," it
furthers the basic thrust of our Biil
of Rights by protecting individual
freedom.

t397 US 3S5l
Br.ii that argument ig-

387

iL
I admit a strong, persuasive argu-

ment can be made for a standard of
ploof beyond a reasonable doubt in
ci'iminal gssss-a11fl the majority
has made that argument well-but
it is not for me as a judge to say
for that reason that Congress or the
States are rvithout constitutional
power to establish another standard

RIi \i,IiNSi-IIP

:ri -
cri

1)-

i(i

397 US 358, 25 i. lld 2(i 366, 90 S Ct 106E

strugglcd in an attcmpt to i..rring i:oles the ef''ect of such decisions on
Englarici unclcr one written consti- perhaps the most fundamental irr-

. tution, consoHciating in oue p,l ce ,ri^ clivicjual iiberty of our people-the
the threads of the fundamer,tai ^Lu, r|ghi of each rnan to participate in
of that nation. They aln:ost su;- tiie self-goyernmer-it oi t,ls iociety.
ceedeci in ttrat atten:pt,l2 but i'; u'as Our Fecleral Gove.nment was set up
not until rftel the Amet'iclrn lievo-
Iution that men were abre to richic,c 

Ils one of iimited powcrs' but it r'as

that iong-sought goai. But ilic rtiso givcn brord power to clo all that

struggle hacl not been sinipiy to \\'as "necessary and proper" to carry

put alt the constitutionai tarv in one ::l il:,I^i^ttt--0,11r-ott 
of governing

document, it was also to mal<e cci- the Nation' so long as those powers

tain that men woulcl be governccl by were not exercised contrary to the
laut, not the arbitrary fiai; ot ti,c limitations set forth in the Constitu-
man or men in power. Oril aitces- tion' And the States, to the extent
tors' ancestors hacl known the tyl'ai-i- tirey are not restrained by the pro,i-
ny of the liings a1d the ruie 01'miLii sions in that document, were to be
ana it was, in niy vierv, in oirier to left free to govern themselves in
insure against srich actions that t;c accorciance rvith their orvn views of
Founders wrote into our own ],Ia;ir:lr falrness and clecency. Any legisla-
Carta the fundumental pt'incipic turc prestrmably passes a llw be-
of the rulc of law, as explesscci i:t cilttse it thinlis the end result will
the historically meaningful phrase helli mot'e than hinder and will thus
"due process of law." The nrany fut'thcr the liberty of the society as
decisions of this Court that have a rvhole. The people, through their
found in that phrase a blanket au- clected representatives, may of
thority to govem the country ac- courso be wrong in making those
cording to the vicws of at lcast five deternrinations, but the right of
members of this institution have ig- seif-government that our Constitu-
nored the essential meaning of the tion preserves is just as impor-
very words they invoke. When this taut as any of the specific individual
Court assumes for itself the power ft'eedoms preserved in the Bill of
to deciare any law-state or fecierai Rights. The liberty of government

-unconstitutional 
because it otTcircis by the people, in my opinion, should

the majorit}"s own views of what is never be denied by this court ex-
fundamcntal ancl decent in our sc,- ccpt when the clecision of the people
ciety, our Nation ceases to be gov- as stated in laws passed by' their
erned according to the "law of tire chosen representatives, conflicts
land" and instead becomes one gov- u,ith the express or. necessarily im-
erned uitimately by the "law of the pliecl commancls of our Constitution.judges."

t;

1J
.'|:

,s

12. See J. Frank, The Levellers (1955),



388

that the Constitution does not
otherwise forbid. It is quite true
that proof beYond a reasonable
doubt has long been required in fed-
eral criminal trials. It is also true
that

ts97 us 8861

this requirement is almost uni'
versally found in the governing laws

of the States. And as long as a Par'
ticular jurisdiction requires proof
beyond a reasonable doubt, then the
Due Process Clause commands that
€vsry trlal in that iurtsdlction must
adhere to that standard. See Turner

DDIBON'g NOTD

. An annotatlon on ,,Procsdural requlrements under Fcdcrrl conltltutlon ln

iuriofrE A.lincuencv proceedings," ippears p' 960' infra'

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:-_--n!G-@45e

U. S. SUPBEME COURT REPOBTS 26 L Eat 2d

v United States, 396 US 398, 480, 24

L Ed 2d 610,628,90 S Ct 642 (19?0)
(Black, J., dissenting). But when,
as here, a State through its dulY

constituted legislative branch decides

to apply a different standard, then
that-Jtandard, unless it is othern'ise
unconstitutional, must be applied to
insure that persons are treated ac-

cording to {he "law of the land."
The State of New York has made

such a decision, and in mY 'view
nothing in the Due Process Clause
invalidates it.