# In re Gault/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Black White
* Concurrence/Dissent Harlan
* Dissenting Opinion Stewart
MR. JUSTICE STEWART, dissenting.
The Court today uses an obscure Arizona case as a vehicle to impose upon thousands of juvenile courts throughout the Nation restrictions that the Constitution made applicable to adversary criminal trials. I believe the Court's decision is wholly unsound as a matter of constitutional law, and sadly unwise as a matter of judicial policy.
Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected [p79] child, a defective child, or a dependent child, a juvenile proceeding's whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act.
In the last 70, years many dedicated men and women have devoted their professional lives to the enlightened task of bringing us out of the dark world of Charles Dickens in meeting our responsibilities to the child in our society. The result has been the creation in this century of a system of juvenile and family courts in each of the 50 States. There can be no denying that, in many areas the performance of these agencies has fallen disappointingly short of the hopes and dreams of the courageous pioneers who first conceived them. For a variety of reasons, the reality has sometimes not even approached the ideal, and much remains to be accomplished in the administration of public juvenile and family agencies — in personnel, in planning, in financing, perhaps in the formulation of wholly new approaches.
I possess neither the specialized experience nor the expert knowledge to predict with any certainty where may lie the brightest hope for progress in dealing with the serious problems of juvenile delinquency. But I am certain that the answer does not lie in the Court's opinion in this case, which serves to convert a juvenile proceeding into a criminal prosecution.
The inflexible restrictions that the Constitution so wisely made applicable to adversary criminal trials have no inevitable place in the proceedings of those public social agencies known as juvenile or family courts. And to impose the Court's long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. In that era, there were no juvenile proceedings, and a [p80] child was tried in a conventional criminal court with all the trappings of a conventional criminal trial. So it was that a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. The sentence was executed. It was all very constitutional.
A State in all its dealings must, of course, accord every person due process of law. And due process may require that some of the same restrictions which the Constitution has placed upon criminal trials must be imposed upon juvenile proceedings. For example, I suppose that all would agree that a brutally coerced confession could not constitutionally be considered in a juvenile court hearing. But it surely does not follow that the testimonial privilege against self-incrimination is applicable in all juvenile proceedings. Similarly, due process clearly [p81] requires timely notice of the purpose and scope of any proceedings affecting the relationship of parent and child. Armstrong v. Manzo, 380 U.S. 545. But it certainly does not follow that notice of a juvenile hearing must be framed with all the technical niceties of a criminal indictment. See Russell v. United States, 369 U.S. 749.
In any event, there is no reason to deal with issues such as these in the present case. The Supreme Court of Arizona found that the parents of Gerald Gault
    knew of their right to counsel, to subpoena and cross-examine witnesses, of the right to confront the witnesses against Gerald, and the possible consequences of a finding of delinquency.
99 Ariz. 181, 185, 407 P.2d 760, 763. It further found that "Mrs. Gault knew the exact nature of the charge against Gerald from the day he was taken to the detention home." 99 Ariz. at 193, 407 P.2d at 768. And, as MR. JUSTICE WHITE correctly points out, pp. 64-65, ante, no issue of compulsory self-incrimination is presented by this case.
I would dismiss the appeal.

## Notes

* ↑ . I find it strange that a Court so intent upon fastening an absolute right to counsel upon nonadversary juvenile proceeding has not been willing even to consider whether the Constitution requires a lawyer's help in a criminal prosecution upon a misdemeanor charge. See Winters v. Beck, 385 U.S. 907; DeJoseph v. Connecticut, 385 U.S. 982.
* ↑ . State v. Guild, 5 Halst. 163, 18 Am. Dec. 404 (N.J.Sup.Ct.).
* ↑ . Until June 13, 1966, it was clear that the Fourteenth Amendment's ban upon the use of a coerced confession is constitutionally quite a different thing from the Fifth Amendment's testimonial privilege against self-incrimination. See, for example, the Court's unanimous opinion in Brown v. Mississippi, 297 U.S. 278, at 285-286, written by Chief Justice Hughes and joined by such distinguished members of this Court as Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo. See also Tehan v. Shott, 382 U.S. 406, decided January 19, 1966, where the Court emphasized the "contrast" between "the wrongful use of a coerced confession" and "the Fifth Amendment's privilege against self-incrimination." 382 U.S. at 416. The complete confusion of these separate constitutional doctrines in Part V of the Court's opinion today stems, no doubt, from Miranda v. Arizona, 384 U.S. 436, a decision which I continue to believe was constitutionally erroneous.