Symposium on Juvenile Problems: In re Gaul

Sheridan, William H.

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 43 | Issue 3 Article 8Spring 1968The Gault Decision and Probation ServicesWilliam H. SheridanDepartment of Health, Education, and WelfareFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, and the Juvenile Law CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized editor of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationSheridan, William H. (1968) "The Gault Decision and Probation Services," Indiana Law Journal: Vol. 43 : Iss. 3 , Article 8.Available at: http://www.repository.law.indiana.edu/ilj/vol43/iss3/8THE GAULT DECISION AND PROBATION SERVICESWILLIAM H. SHERIDANtIn In re Gault,' the Supreme Court removed some of the mythswhich have shrouded the operation of juvenile courts for several decades.The hue and cry from a few quarters notwithstanding, this decision willneither frustrate the purpose nor destroy the concept of the juvenile court.It will, however, require changes in court practices and procedures andmay also necessitate legislative revision. It is also hoped that it willpromote the development of court rules, which are seriously lacking in thejuvenile courts. There is ample evidence that the decision has stimulateddispassionate analysis of an institution which has had and will continueto have a profound impact on the lives of millions of children and families.Hopefully this analysis will generate the action which has long beenneeded to improve our juvenile courts.In Gault, six basic issues were presented: right to notice of charges,right to counsel, right to confrontation and cross-examination, privilegeagainst self-incrimination, right to a transcript of the proceedings, andright to appellate review. The Court narrowed the application of itsfindings by cautioning that "we are not here concerned with the pro-cedures of constitutional rights applicable to the pre-judicial stages of thejuvenile process, nor do we direct our attention to the post adjudicative ordispositional process." 2 Mr. Justice Fortas then referred to a footnotediscussing the use of preliminary conferences and consent decrees todispose of cases short of adjudication.3 Such functions, as a rule, aredischarged at what is referred to as the intake stage in the juvenile courtprocess.4 In other words, the Court directed its attention to the six issuesas they relate to the adjudicative hearing, i.e., the hearing to determinethe validity of the allegations in the petition.'tAssistant Director, Division of Juvenile Delinquency Service, Children's Bureau,Department of Health, Education, and Welfare.1. 387 U.S. 1 (1967).2. Id. at 13.3. Id. at 31 n.48.4. Sheridan, Juvenile Court Intake, 2 1. FAMILY L. 139-156 (1962); Waalkes,Juvzenile Court Intake-A Unitue and Valuable Tool, 10 CRIME & DE..INQ-ENCY 117-123(1964) ; Wallace & Brennan, Intake and the Family Court, 12 BUFF. L. REv. 422-451(1963).5. Part II of the decision dealing with the background and history of the juvenilecourt and the cases cited may provide indications as to the direction of future decisions.See Dorsen & Rezneck, Gault and the Future of Juvenile Law, 1 FAMIY L.Q. 1-46(1967) ; Neigher, The Gault Decision: Due Process and the Juvenile Courts, 31FED. PRo0ATioN 8-18 (1967).See Generally CH:LDRFN'S BUREAU, PUB. No. 437, STANDARDS FOR JUVENMLE ANDINDIANA LAW JOURNALThe Article discusses Gault with reference to its impact uponprobation practices. The extent and nature of its impact will be affectedby the nature of the role probation services play in the juvenile courtprocess, which varies from court to court in a given jurisdiction. There-fore, what the writer considers to be the primary and appropriatefunctions of probation officers at various stages of juvenile court pro-ceedings will be set forth. These are: (a) assisting with intake, which ispre-judicial in nature and essentially a screening process in the form of abrief review to determine what action on the complaint, if any, is nesess-ary for the protection of the child or the community; (b) after a petitionhas been filed, making a predispositional study of the child and family andthe preparation of recommendations based upon the study for use by thecourt at the dispositional hearing; (c) presenting the findings of thestudy to the court in the dispositional hearing; and (d) providing case-work, groupwork, or other therapeutic services or help for children whohave been placed on probation or placed under the supervision of theprobation officer by court order.These functions limit the probation officer's role to pre-judicial anddispositional aspects of juvenile court procedure, both of which the courtspecifically exempted from its concern in this case. Consequently onemight expect the findings in Gault to have little impact upon probationpractices. However, action necessary to implement some of the court'sfindings in the areas of notice, right to counsel, and self-incriminationwill need to be taken prior to the adjudication hearing and, therefore, mayhave a significant impact upon the activities of the probation officer.6FAMILY COURTS (1965) [hereinafter cited as STANDARDS: CHILDREN'S BUREAU,PROPOSED FAMILY COURT AcT [hereinafter cited as PROPOSED AcT]: UNIFORM JUVENILECOURT AcT (Third Tentative Draft) [hereinafter cited as UNIFORm ACT].6. A youngster's right to confrontation and cross-examination in the adjudicativehearing should have no effect upon probation practices. It has been recommended thatthese rights, with some modification, should also be available to the youngster in thedisposition hearing with reference to the persons who conduct studies and examinations;this would include probation officers. See STANDARD JUVENILE COURT AcT § 19(comment) and STANDARD FAmY COURT AcT § 19 (comment) [hereinafter cited asSTANDARD AcTs] for the Children's Bureau recommended procedure. These acts wereprepared by the National Council on Crime and Delinquency in cooperation with theChildren's Bureau and the National Council of Juvenile Court Judges in 1959.The comment provides that:[iun the disposition part of the hearing any relevant and material infor-mation, including that contained in a written report, study or examination,shall be admissible, and may be relied upon to the extent of its probativevalue; provided that the maker of such a written report, stuyd or examin-ation shall be subject to both direct and cross-examination when he is reason-ably available....For provisions similar to the above, see Hawaii Family Court Act, No. 232, ch. 333,1965 Hawaii Sess. Laws 360, amending, HAWAII REv. Laws, ch. 333 (1955); UNIEoiuAcT. If the right to confrontation is later applied to these circumstances, probationpractices will affected.656GAULT AND PROBATION SERVICESNotice and Right to CounselThe issue of right to counsel in the adjudicative hearing should notaffect probation practice, since the probation officer should not be involvedin this aspect of the juvenile court process." Effective use of this rightmay be directly related, however, to the time when notice of the right to'counsel is given to the child. It has been advocated that notice be givenat the time of service of summons8 or at the time the child is placed indetention, whichever occurs first,' or at the time of intake." Althoughthe timeliness of notice was not an issue in Gault, probation officers mayeventually have responsibility for providing notice as part of the intakeprocess.It may well be, however, that attorneys will be increasingly involvedin the intake phase and at the disposition hearing as -well. This will haveconsiderable impact upon probation practices, particularly in those courtswhere few if any attorneys have appeared in the past. The nature of theimpact may be partly discerned from the attitudes of some probationofficers who have complained that the presence of an attorney tends tocreate an adversary proceeding" and, as a result, conflict coupled witha feeling of mutual distrust develops between the probation officer andcounsel. It has also been alleged that the lack of counsel for the stateplaces the probation officer in the role of "prosecutor" in the eyes of theyoungster and his family. Thus Gault may enable probation officers toassume their proper role. The increasing appearance of defense attorneysshould provide a powerful incentive to the state to see that its interests arealso protected by attorneys. If this is done, not only would probationofficers be able to devote more time to their proper functions, but theharmful results of their presence in the adversary setting would besignificantly reduced.While the Juvenile Court judge may, of course, receive ex parte analysesand recommendations from his staff, he may not, for purposes of a decisionon waiver, receive and rely upon secret information, whether emanatingfrom its staff or otherwise. The Juvenile Court is governed in this respectby the established principles which control courts and quasi-judicial agenciesof the Government.Kent v. United States, 383 U.S. 541, 565 (1966). Although Kent was decided onstatutory grounds and related to a waiver proceeding, the principle stated above mightwell be considered applicable to the dispositional hearing in order to meet the essentialsof due process and fair treatment. However, the right to confrontation and cross-examination in the disposition hearing was not considered by the Court in Gaudt.7. An exception to this occurs when a youngster is before the court for a violationof probation, in which case the probation officer may have requested the hearing.8. See UNIFORm AcT § 17.10. See STANDAmS 55.11. In the opinion of the writer, this element has always been present. Theindividual has a right to object to the state's interfering in his life and the state shouldbe required to prove the necessity of such intervention. Obviously, an adversarysituation arises, at least in the eyes of the child and his family.657INDIANA LAW IOURNALThe lawyer's role, however, must not be confused with that of theprobation officer. Some advocate that the lawyer make social studies, makereferrals to various community agencies for treatment, and provide con-tinuing counseling of a social nature after disposition-i.e., become theprobation officer. The extension of the role of the lawyer into the non-legal phases of the juvenile court process is, however, neither practical nordesirable. Although an attorney should have general knowledge of thenature and adequacy of the treatment services available to his client, hewill find that he has neither the time nor the competence to assumeresponsibility for providing them himself. However, in communitieswhere services are lacking in availability or quality, he, as a citizen andinterested professional, should actively seek improvement.Privilege Against Self-Incrimination.The issue of privilege against self-incrimination arose in relation toadmissions made by Gault to the judge in the adjudicative hearing. Anyadditional questioning by the probation officer and any admissions whichmay have been made to him did not, however, appear in the record. Forthis reason, the Court specifically pointed out it was not considering thestatus of out-of-court admissions made to the probation officer. Even ifsuch admissions had appeared in the record, their validity should not bean issue in the adjudicative hearing since the probation officer and hisreport should have no role in this hearing. As an additional safeguard, ithas been recommended12 that use of any information secured by theprobation officer during the pre-adjudicative process should be prohibitedin any hearing prior to disposition in the juvenile court or conviction in acriminal court if the case is transferred.Therefore, with the exception of the right to counsel, Gault clearlywill have little if any impact on probation services as functionally definedin this paper. It is equally obvious from a reading of the facts in Gaultthat probation practices in Arizona are at considerable variance with theauthor's definition. This is true of numerous other courts with similarpractices.12. The UNIFORMt AcT § 10, provides that:No incriminating statement made by a patricipant while such counsel andadvice is being given, offered or sought, or 'in the discussions or conferencesincident thereto, shall be admitted in evidence over objections on any hearingprior to the hearing on disposition or, in a criminal proceeding against him,at any time prior to conviction.The PROPOSED ACT §§ 14, 30, provides similar protections with respect to statementsmade and information secured during the intake and pre-disposition study. Also, seeSTANDARD: 59. "Futhermore, no statement made during a preliminary conference maybe used later in a juvenile hearing to determine the allegation in the petition or priorto conviction if transferred to adult court." Similar provisions are also included insome of the more recent state juvenile court statutes.GAULT AND PROBATION SERVICESThe probation officer was deeply involved in the Gault case but as aprobation officer in title only. He was in fact a policeman and a prosecut-ing official. He took the child into custody, initiated proceedings, filed andverified the petition, appeared as the complaining witness to testify againstthe child, and generally conducted himself as a prosecuting official. Inaddition, he was obligated to protect the interests of neglected, delinquentand dependent children in the county as well as to "be present in courtwhen cases are heard covering children and represent their interests."'13Obviously, these duties are in conflict-a fact which was recognized bythe court. Such a situation must create confusion for all concerned andparticularly for the poor, uneducated, or uninformed persons who areoften centrally involved. As already noted, in Arizona these functions ofthe probation officer are assigned by statute, and several other states havesimilar provisions.'4In most states, the statute authorizes any person to file a petition.'5In addition the statutes of many of these states specifically authorize theprobation officer to perform this function. Since probation practices oftenvary from community to community, even with a state, the actual numberof courts in which the officer files the petition is not known; however,evidence gained by the children's bureau through consultations andsurveys indicates that this practice is extensive. In about forty percent ofthe states, the probation officer, by statute, is vested with the full powersof a peace officer, and in about the same percentage of states he is chargedwith representing the interests of the child in court.Statutory revision will, therefore, be necessary in some states in orderto modify probation practices. In other states, hopefully, such modificationcould be accomplished through court rules.Another practice which has led to confusion as to the role of theprobation officer is the failure of many courts to recognize the need fora bifurcated hearing, i.e., separation of the adjudicative and dispositional13. Aiuz. REv. STAT. ANN. § 8-204(C) (3) (1956).14. California has the same provisions. In Iowa either the district attorney or theprobation officer is required to file the petition. In Virginia the probation officer isrequired to file if directed by the judge.15. The STANDARD AcTs, use the phrase "any person" without any expresslimitation on the commencement of proceedings by the probation officer. Sec. 6"Powers and Duties of Probation Officers," of the UsFoam, AcT, provides that 'aprobation officer does not have the powers of a law enforcement officer nor may hecommence or conduct proceedings under this Act against a child who is or may beunder his care of supervision." Sec. 6 of the PROPOSED AcT, provides that "a probationofficer does not have the powers of a law enforcement officer nor may he commence orconduct proceedings under this Act against a child who is or may be under his care ofsupervision." Sec. 6 of the PROPOSED AcT, provides that ".... a probation officer doesnot have the powers of a law enforcement officer nor may he commence proceedingsunder this Act with respect to a child who is not on probation; ...."INDIANA LAW JOURNALphases.16 Although the Supreme Court distinguished between these twophases in Gault, there is no evidence that the trial court recognized thatdistinction. Even if it had, such a distinction would be meaninglesssince the probation officer was discharging several inconsistent roles.It has also been stated that the Gault decision requires that theadministration or probation services be divorced from the judiciary."Regardless of the validity of this conclusion, such action would aid inclarifying the role of the probation officer and has been recommended bythe author for several additional reasons." No doubt other cases raisingissues pertinent to the pre-adjudication and dispositional phases ofjuvenile court procedures will reach the Supreme Court in the near fu-ture. 9 Decisions on those issues will probably also have a direct bearingon probation practices.The need for clarification of the role of the probation officer is thusincreasingly apparent. Every effort must be made to assure that probationprocedures do not conflict with current due process safeguards or thosedecreed applicable in the future. Hopefully the Gault decision, in additionto establishing procedural safeguards in juvenile court proceedings, willalso lead to the clarification of the role of the probation officer in suchproceedings.16. See STANDARD AcTs § 19 (Comment); UNIFORM ACT § 28; PRESIDENT'SComm'x ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TnE CHALLENGEOF CRIME IN A FREE Soc=y 87 (1967) ; STANDARDS, 67.17. Note, Juvenile Justice in California-A Re-Evaluation 19 HASTINGS L.J.119 (1967-68).18. Sheridan, New Directions For the Juvenile Court, 31 FED. PRoB. 15 (1967).19. In re Whittington, appeal docketed, 36 U.S.L.W. 3163 (U.S. Oct. 17, 1967)(No. 701).

The Gault Decision and Probation Services

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The Gault Decision and Probation Services

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Indiana University Bloomington Maurer School of Law