# In re Winship/Concurrence Harlan

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Mr. Justice HARLAN, concurring.
No one, I daresay, would contend that state juvenile court trials are subject to no federal constitutional limitations. Differences have existed, however, among the members of this Court as to what constitutional protections do apply. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
The present case draws in question the validity of a New York statute that permits a determination of juvenile delinquency, founded on a charge of criminal conduct, to be made on a standard of proof that is less rigorous than that which would obtain had the accused been tried for the same conduct in an ordinary criminal case. While I am in full agreement that this statutory provision offends the requirement of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment, I am constrained to add something to what my Brother BRENNAN has written for the Court, lest the true nature of the constitutional problem presented become obscured or the impact on state juvenile court systems of what the Court holds today be exaggerated.
* Professor Wigmore, in discussing the various attempts by courts to define how convinced one must be to be convinced beyond a reasonable doubt, wryly observed: 'The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly * * * a sound method of selfanalysis for one's belief,' 9 J. Wigmore, Evidence 325 (3d ed. 1940).
Notwithstanding Professor Wigmore's skepticism, we have before us a case where the choice of the standard of proof has made a difference: the juvenile court judge below forthrightly acknowledged that he believed by a preponderance of the evidence, but was not convinced beyond a reasonable doubt, that appellant stole $112 from the complainant's pocketbook. Moreover, even though the labels used for alternative standards of proof are vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.
To explain why I think this so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief-the degree to which a factfinder is convinced that a given act actually occurred-can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases 'preponderance of the evidence' and 'proof beyond a reasonable doubt' are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.
A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man.
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.
When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact 'to believe that the existence of a fact is more probable than its nonexistence before (he) may find in favor of the party who has the burden to persuade the (judge) of the fact's existence.'
In a criminal case, on the other hand, we do not view the social disutility of convincting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460 (1958):
'There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value-as a criminal defendant his liberty this margin of error is reduced as to him by the process of placing on the other party the burden * * * of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.'
In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation.
When one assesses the consequences of an erroneous factual determination in a juvenile delinquency proceeding in which a youth is accused of a crime, I think it must be concluded that, while the consequences are not identical to those in a criminal case, the differences will not support a distinction in the standard of proof. First, and of paramount importance, a factual error here, as in a criminal case, exposes the accused to a complete loss of his personal liberty through a state-imposed confinement away from his home, family, and friends. And, second, a delinquency determination, to some extent at least, stigmatizes a youth in that it is by definition bottomed on a finding that the accused committed a crime. Although there are no doubt costs to society (and possibly even to the youth himself) in letting a guilty youth go free, I think here, as in a criminal case, it is far worse to declare an innocent youth a delinquent. I therefore agree that a juvenile court judge should be no less convinced of the factual conclusion that the accused committed the criminal act with which he is charged than would be required in a criminal trial.
I wish to emphasize, as I did in my separate opinion in Gault, 387 U.S. 1, 65, 87 S.Ct. 1428, 1463, that there is no automatic congruence between the procedural requirements imposed by due process in a criminal case, and those imposed by due process in juvenile cases. It is of great importance, in my view, that procedural strictures not be constitutionally imposed that jeopardize 'the essential elements of the State's purpose' in creating juvenile courts, id., at 72, 87 S.Ct. at 1467. In this regard, I think it worth emphasizing that the requirement of proof beyond a reasonable doubt that a juvenile committed a criminal act before he is found to be a delinquent does not (1) interfere with the worthy goal of rehabilitating the juvenile, (2) make any significant difference in the extent to which a youth is stigmatized as a 'criminal' because he has been found to be a delinquent, or (3) burden the juvenile courts with a procedural requirement that will make juvenile adjudications significantly more time consuming, or rigid. Today's decision simply requires a juvenile court judge to be more confident in his belief that the youth did the act with which he has been charged.
With these observations, I join the Court's opinion, subject only to the constitutional reservations expressed in my opinion in Gault.

## Notes

1 See also Paulsen, Juvenile Courts and the Legacy of '67, 43 Ind.L.J. 527, 551-552 (1968).
2 For an interesting analysis of standards of proof see Kaplan, Decision Theory and the Factfinding Process, 20 Stan.L.Rev. 1065, 1071-1077 (1968).
3 The preponderance test has been criticized, justifiably in my view, when it is read as asking the trier of fact to weigh in some objective sense the quantity of evidence submitted by each side rather than asking him to decide what he believes most probably happened. See J. Maguire, Evidence, Common Sense and Common Law 180 (1947).
4 F. James, Civil Procedure 250-251 (1965); see E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 84-85 (1956).
5 In dissent my Brother BLACK again argues that, apart from the specific prohibitions of the first eight amendments, any procedure spelled out by a legislature-no matter how unfair-passes constitutional muster under the Due Process Clause. He bottoms his conclusion on history that he claims demonstrates (1) that due process means 'law of the land'; (2) that any legislative enactment, ipso facto, is part of the law of the land; and (3) that the Fourteenth
Amendment incorporates the prohibitions of the Bill of Rights and applies them to the States. I cannot refrain from expressing my continued bafflement at my Brother BLACK'S insistence that due process, whether under the Fourteenth Amendment or the Fifth Amendment, does not embody a concept of fundamental fairness as part of our scheme of constitutionally ordered liberty. His thesis flies in the face of a course of judicial history reflected in an unbroken line of opinions that have interpreted due process to impose restraints on the procedures government may adopt in its dealing with its citizens, see, e.g., the cases cited in my dissenting opinions in Poe v. Ullman, 367 U.S. 497, 522, 539-545, 81 S.Ct. 1752, 1765, 1774-1778, 6 L.Ed.2d 989 (1961); Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 1459, 20 L.Ed.2d 491 (1968); as well as the uncontroverted scholarly research (notwithstanding H. Flack, The Adoption of the Fourteenth Amendment (1908)), respecting the intendment of the Due Process Clause of the Fourteenth Amendment, see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). Indeed, with all respect, the very case cited in Brother BLACK'S dissent as establishing that 'due process of law' means 'law of the land' rejected the argument that any statute, by the mere process of enactment, met the requirements of the Due Process Clause. In Murray's Lessee v. Hoboken Land & Improv. Co., 18 How, 272, 15 L.Ed. 372 (1856), an issue was whether a 'distress warrant' issued by the Solicitor of the Treasury under an act of Congress to collect money due for taxes offended the Due Process Clause. Justice Curtis wrote: 'That the warrant now in question is legal process, is not denied. It was issued in conformity with an Act of Congress. But is it 'due process of law?' The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will.' Id., at 276. (Emphasis supplied.)
6 The New York statute was amended to distinguish between a 'juvenile delinquent,' i.e., a youth 'who does any act which, if done by an adult, would constitute a crime,' N.Y.Family Court Act § 712 (1963), and a '(p)erson in need of supervision' (PINS) who is a person 'who is an habitual truant or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority.' The PINS category was established in order to avoid the stigma of finding someone to be a 'juvenile delinquent' unless he committed a criminal act. The Legislative Committee report stated: "Juvenile delinquent' is now a term of disapproval. The judges of the Children's Court and the Domestic Relations Court of course are aware of this and also aware that government officials and private employers often learn of an adjudication of delinquency.' N.Y.Jt. Legislative Committee on Court Reorganization, The Family Court Act, pt. 2, p. 7 (1962). Moreover, the powers of the police and courts differ in these two categories of cases. See id., at 7-9. Thus, in a PINS type case, the consequences of an erroneous factual determination are by no means identical to those involved here.
7 In Gault, for example, I agreed with the majority that due process required (1) adequate notice of the 'nature and terms' of the proceedings; (2) notice of the right to retain counsel, and an obligation on the State to provide counsel for indigents 'in cases in which the child may be confined'; and (3) a written record 'adequate to permit effective review.' 387 U.S., at 72, 87 S.Ct., at 1467. Unlike the majority, however, I thought it unnecessary at the time of Gault to impose the additional requirements of the privilege against self-incrimination, confrontation, and cross-examination.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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