1. 387 U.S. 1 (1967).

2. Prior to Gault, courts had divided sharply on the existence and operation of these rights at the adjudicative hearing. While it was held that the juvenile could not be denied the assistance of counsel already retained, see In re Poulin, 100 N.H. 458, 129 A.2d 672 (1957), the rights announced in Gideon v. Wainwright, 372 U.S. 335 (1963) were not generally made available in juvenile courts. Some state statutes provided that whether counsel should be appointed was a matter for the court's discretion. E.g., Ala. Code Ann. tit. 13, §359 (1959); Cal. Welf. & Inst. Code §§633, 634, 679, 700 (1961) (mandatory where felony charge involved); Colo. Rev. Stat. §22-8-6 (1964); Ark. Stat. Ann. 45-227 (1964); Mich. Comp. Laws Ann. §712A.17 (Supp. 1968); Nev. Rev. Stat. §62.085 (1961); N.D. Century Code §27-16-25 (1960); W. Va. Code §49.04 [13] (1961); Wis. Stat. Ann. §48-25-6 (1957). Others mentioned only a right to retained counsel. E.g., Me. Rev. Stat. Ann. tit. 15, §2609 (1964); Miss. Code Ann. §7185.08 (1942); Mo. Stat. Ann. §211.211 (1959); Ohio Rev. Code Ann. §2151.35 (1964); R. I. Gen. Laws §§14-1-30, 14-1-58 (1961). A few states required appointment of counsel for the indigent, at least upon request. Idaho Code §16-1631 (Supp. 1968); Ill. Rev. Stat. ch. 37, §701-20 (1967); Iowa Code Ann. ch. 232, §232.28 (Supp. 1965); Kan. Gen. Stat. §38.821 (1963) (guardian ad litem); Minn. Stat. Ann. §260.155(2) (Supp. 1967); Ore. Rev. Stat. §419.498 (Supp. 1967). In the jurisdictions where the right to counsel in delinquency proceedings was not treated by statute, predictably, the decisions were split. Compare Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965); People v. Fifield, 136 Cal. App. 2d 741, 289 P.2d 303 (1955) with In re Poff, 135 F. Supp. 224 (D.D.C. 1955); Shioutakon v. District of Columbia, 246 F.2d 666 (D.D.C. 1956).

The privilege against self-incrimination was by and large unrecognized in delinquency cases prior to Gault. See P. Driscoll, The Privilege Against Self-Incrimination in Juvenile Proceedings, 15 Juv. Ct. Judges J. 17 (1964); N. Lefstein, In re Gault, Juvenile Courts and Lawyers, 53 A.B.A.J. 811 (1967); President‘s Commission on Law Enforcement and Administration of Criminal Justice, Task Force Report: Juvenile Delinquency and Youth Crime 37 (1967). Some courts indicated that the privilege did not apply to juvenile courts since they were civil rather than criminal in nature. In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943); In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954), cert. denied, 348 U.S. 973; In re Lewis, 51 Wn. 2d 193, 316 P.2d 907 (1957). The Arizona Supreme Court in Application of Gault, supra, without expressly holding that the privilege applied in Arizona delinquency hearings, took the position adopted by the United States Children‘s Bureau in its Standards for Juvenile and Family Courts (1966) that while the right to silence may exist in some sense, the child and his parents need not be informed of it.

Juvenile courts had frequently taken the position that strict application of ordinary rules of criminal procedure would substantially interfere with the relationship between child and the court. Thus admission of hearsay evidence was held not to invalidate an adjudication of delinquency in In re Holmes, supra, State ex rel. Christiansen v. Christiansen, 119 Utah 361, 227 P.2d 760 (1951), and In re Bentley, 246 Wis. 69, 16 N.W. 2d 390 (1944). On much the same theory, the rule preventing the use of unsworn testimony in ascertaining essential facts was not extended to delinquency proceedings in some courts. State ex rel. Christiansen v. Christiansen, supra; State v. Scholl, 167 Wis. 504, 167 N.W. 830 (1918). Other jurisdictions, however, concluded that the use of hearsay and unsworn testimony was improper. In re Sippy, 97 A. 2d 455 (D.C. Mun. Ct. App. 1953); In re Mantell, 157 Neb. 900, 62 N.W. 2d 308 (1954).

3. The decision to use fictional names for the three project cities was encouraged by the project's Advisory Board.

4. For all three cities, delinquency petitions encompass those criminal code and municipal ordinance violations which, if committed by an adult, would constitute an offense. In Metro and Gotham, delinquency petitions are also appropriate where the respondent is charged with an act that would not be illegal if done by an older person, such as violation of curfew, truancy, runaway, and incorrigibility. Such offenses are included in the more than 7,000 complaints listed for these courts. In Zenith, pursuant to the state's juvenile court act, these special youthful offenses are charged in a separately labeled “Minor in Need of Supervision” petition. For the year 1966, more than 5,000 of these petitions were filed in Zenith's court. Youths adjudicated delinquent for any offense, including those applicable only to minors, are subject to institutionalization by the Metro and Gotham juvenile courts. In Zenith, commitment is not authorized for one found to be a “Minor in Need of Supervision.” If, however, a juvenile is adjudicated in need of supervision and subsequently commits the same offense, which offense also constitutes a violation of a lawful court order imposed as a result of the previous court appearance, he then can be adjudicated delinquent and institutionalized on the latter basis.

5. The judges observed in Zenith included a “visiting judge,” not normally assigned to the juvenile court. A distribution of youths by judges in Zenith as well as in Metro and Gotham is contained in Table 3, infra.

6. J. Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 119-20 (1909) (emphasis added).

7. As indicated in table 1 infra, 71 different juveniles were observed in our final sample of analyzed hearings in Metro. The observations of 39 of these juveniles were made in June, and the balance—32—in December and January. It also would have been desirable to have gone back to Gotham's juvenile court in late 1967. However, new rules governing juvenile procedures in Gotham's court went into effect in September 1967, and their rather unusual provisions made further study of compliance with Gault virtually impossible. The rules created two court calendars, one labeled “formal” and the other “informal.” Cases on the formal calendar are determined in advance by the court to be subject to the possibility of commitment, and a lawyer is appointed, if one is not already present, in all such cases. The cases on the informal calendar are declared not subject to commitment, and Gault's requirements are not implemented. The significance of the possibility of commitment, from the standpoint of implementing the rights guaranteed in Gault, is noted in footnote 8, infra.

8. We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.

In re Gault, supra note 1, at 41 (emphasis added). Under the statute that governs Metro's juvenile procedures, referees have the power to make findings and recommendations that must be submitted to a juvenile court judge for approval. Despite the absence of the power of referees to commit juveniles directly to an institution, cases of nine youths heard before Metro's two referees are included in our final sample. See Table 3, infra. It was found that the action of the referees, in actual practice, is rarely reversed by one of the juvenile court judges, and thus the referee's decision may very well “result in commitment to an institution.”

9. For this analysis we have accepted the hypothesis that the presence of counsel insures implementation of the other rights in Gault—or at the very least, that these rights were relinquished upon legal advice. Nevertheless, this is an empirical question that remains to be investigated. Data bearing on this problem are currently being analyzed.

10. It is arguable, however, in light of the Supreme Court's decision in Mempa v. Rhay, 389 U.S. 128 (1967), that the right to counsel must now be extended by juvenile courts to probation revocation hearings.

11. Two cases in our final sample—one in Metro and the other in Zenith—are exceptions to the general rule that we excluded cases where there had been a prior continuance. In one instance, the court had continued the case for the parties to obtain counsel, and in the other the parties were deemed to have waived their right to a lawyer at their first court appearance. Nevertheless, in both cases the court discussed with the parties their right to an attorney and for this reason the cases were included in our sample. In both cases, incidentally, the judge proceeded to hear the case without an attorney.

12. No effort was made in this study to determine whether the actual number of juveniles represented by lawyers in the three juvenile courts was greater after the Gault decision, although it is our definite impression that this is true. Indeed, in Zenith, our sample of cases is relatively small due to the elimination of cases where lawyers were present.

13. Metro's court has jurisdiction of “juvenile traffic offenders” as well as “delinquents.” Although juveniles in these groups are labeled differently, both are subject to commitment to an institution following an adjudication. The sample of youths in Metro includes one boy who was charged with multiple traffic offenses. In Zenith, the sample includes one boy, charged with running away from home, who was previously adjudicated in need of supervision, and who was subject to the possibility of commitment in his appearance before the court. See discussion in note 4, supra.

14. The criteria used to determine whether these rights were significant for youths in the sample are set forth later. See footnotes appended to Table 2.

15. Youths above the age of 18 who commit an offense are beyond the jurisdiction of the juvenile courts in Gotham and Metro. In Zenith, the state's juvenile court act fixes the upper age limit for delinquency at 17 for boys and 18 for girls. Minor in need of supervision petitions may be brought against boys and girls for violations committed before the 18th birthday.

16. See N. Lefstein & V. Stapleton, Counsel in Juvenile Courts: An Experimental Study, 1967 (unpublished ms., National Council of Juvenile Court Judges).

17. We believe this study to be measurably strengthened because it is based on observed courtroom behavior rather than on answers to self-administered questionnaires. Such studies, although useful in many ways, are subject to a variety of well-known errors, principally self-selection (only a portion of the sample may reply) and self-reporting (which may be biased in favor of the respondent's position). It is, therefore, desirable to treat questionnaire surveys on the implementation of Gault with appropriate caution. For an example of such a survey see W. W. Reckless & W. C. Reckless, The Initial Impact of the Gault Decision on Juvenile Court Procedure in Ohio, 18 Juv. Ct. Judges J. 121 (1968).

18. Participant observation is a term of art rather than of science. See R. Gold, Roles in Sociological Field Observation, 36 Social Forces 217-23 (1958) for a discussion of types of data gathering techniques commonly described by the term. In this study the observer was not a participant, except in the sense that he was present in the courtroom during the hearings engaged in taking notes. All observers had permission from the courts' presiding judges and from the judge at the hearing. All judges were informed that the observer was in court to take notes on courtroom interaction, especially between child and judge, as part of a large-scale study of juvenile courts.

Anonymity of all parties appearing before the court was promised and has been preserved.

19. E. Webb, D. Campbell, R. Schwartz & L. Sechrest, Unobtrusive Measures: Nonreactive Research in the Social Sciences 114 (1966).

20. In the use of field data we have attempted to follow Becker and Geer, especially in their model of proof: “We attempted to make explicit those elements in our data which led us to arrive at conclusions in which we had confidence and to explore the reasoning by which we decided that those conclusions were credible.” H. Becker & B. Geer, Participant Observation: The Analysis of Qualitative Field Data, in Human Organization Research 271 (R. Adams & J. Preiss eds. 1966).

21. Keysort cards represent a precomputer method of information retrieval particularly useful in analyzing qualitative data. For a recent application of Keysort cards involving the legal profession, see 0. Lewis & P. Ulrich, Information Retrieval Without Computers, 55 A.B.A.J. 676 (1968).

22. See note 7 supra.

23. In Metro, following a case that had been continued for the appointment of an attorney, the probation officer assigned to the case approached the observer and stated:

“You're a real doll. You just messed up my case.” He said that because I [the observer] was in there. “He [the judge] really bawled me out.” I [observer] said, “You think so?” and he [probation officer] said, “Yea. He would have heard it.” And I said, “Well, why didn't he have them waive it then?” And he said, “Well, he could have done that. ... But he gave me a hard time and it's all because of you. Thanks a lot, doll.” [Observer speaking] This probation officer carries on that way. It's obvious that my presence is an interference with the on-going way of handling things.

24. Jerome Skolnick faced the same problem in his study of police behavior, and concluded the following:

Finally, if an observer's presence does alter police behavior, it can be assumed that it does so only in one direction. I can see no reason why police would, for example, behave more harshly to a prisoner in the presence of an observer than in his absence. Nor can I imagine why police would attempt to deceive a prisoner in an interrogation to a greater degree than customary. Thus, a conservative interpretation of the materials that follow would hold that these are based upon observations of a top police department behaving at its best.

J. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society 36 (1966). The problem of the reactivity of subjects of social science investigation is a chronic one. One recent book on social science methodology stresses the use of “nonreactive” measures in social research. Webb, Campbell, Schwartz & Sechrest, supra note 19.

25. 387 U.S. 1, 36 (emphasis added).

26. See Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv. L. Rev. 775, 797 (1966).

27. 387 U.S. 1, 41.

28. The introduction of the waiver doctrine to delinquency proceedings is discussed in section VIII infra.

29. Nor did the notices in these two cities or in Zenith satisfy Gault's requirement that the parent and the child be served written, timely, and specific notice of the charges. 387 U.S. at 32-33. In Metro, a written notice was served with a copy of the petition attached, but it was not directed to the child as the Supreme Court in Gault required. Although in Gotham both parent and child were afforded written and timely notice, the charge frequently was indicated only by the initials of the offense. For example, the offense of “deportment endangering health and general welfare” appeared in notices as “Juvenile Delinquency: DEHGW.” Moreover, even when the offense could be deciphered, a specific factual description of the conduct was still missing. See In Re Wylie, 231 A.2d 81 (D.C. Ct. App. 1967); N. Dorsen & D. Rezneck, In Re Gault and the Future of Juvenile Law, 1 Fam. L.Q. 1, 14 (Dec. 1967). In Zenith, written notice of the charge was not sent to the youth or his parents. Instead, the parties were informed verbally of the date and time of their first scheduled court hearing, and when a parent appeared a bailiff thrust into his hand a printed form to sign, which purported to waive service of process. The substance of the form was rarely—if ever—explained, and the consequences of waiver never discussed. The child typically was not asked to sign the waiver form. Only after the parent had signed was a copy of the petition containing the charge given to the parent or child. Clearly this procedure did not constitute timely fulfillment of Gault's notice of charges requirement. Nor did the purported waiver of service by the parent appear to have been “knowing and intelligent.” See Carnley v. Cochran, 369 U.S. 506 (1962); Johnson v. Zerbst, 304 U.S. 458 (1938). The procedure also failed to circumvent a statutory requirement that summons and a copy of the petition be served on the parties at least three days before the first court hearing.

30. Cherrie v. United States, 179 F.2d 94, 96 (10th Cir. 1949). See W. Thompson, The Judge's Responsibility on a Plea of Guilty, 62 W. Va. L. Rev. 213, 216 (1960).

31. See Comment, Waiver of the Right to Counsel in State Court Cases: The Effect of Gideon v. Wainwright, 31 U. Chi. L. Rev. 591, 594-95 (1964).

32. See Carnley v. Cochran, 369 U.S. 506 (1962).

33. Id.; Johnson v. Zerbst, 304 U.S. 458 (1938).

34. See Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948) (plurality opinion by Black, J.); Cherrie v. United States, supra note 30; Snell v. United States, 174 F.2d 580 (10th Cir. 1949); People v. Hardin, 207 Cal. App. 2d 336, 24 Cal. Rptr. 563 (Dist. Ct. App. 1962).

35. See Uverges v. Pennsylvania, 335 U.S. 437 (1948) (17 years old); People v. Devanish, 285 App. Div. 826, 136 N.Y.S.2d 759 (1955) (16 years old); In re Gooding, 338 P.2d 114 (Okla. Crim. 1959) (18 years old). Accord United States ex rel. Brown v. Fay, 242 F. Supp. 273 (S.D.N.Y. 1965) (16 years old); People v. Byroads, 24 App. Div.2d 732, 263 N.Y.S.2d 401 (1965) (17 years old) (mem.); United States ex rel. Slebodnik v. Pennsylvania, 343 F.2d 605 (3rd Cir. 1965) (applying Pennsylvania law to a 17-year-old).

36. Certainly there is much evidence to indicate that receipt and endorsement of a paper does not necessarily imply knowledge of the contents of the matter signed. The failure of poor persons to know and understand their commercial contracts has been carefully researched, see D. CAPLOVITZ, THE POOR PAY MORE 188-89 (1967), and the lack of education frequently found among the urban poor is unquestionable. See PRESIDENT'S COMMISSION ON LAw ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 69-70 (1967).

Paulsen, Juvenile Courts, Family Courts, and the Poor Man, in THE LAW OF THE PooR 310, 372 (J. tenBroek, ed. 1966).

37. See Powell v. Alabama, 287 U.S. 45, 73 (1932): "Attorneys are officers of the court, and are bound to render services when required by such appointment."

38. This manner of informing of the right to appointed counsel was very common in Metro, and was incorporated into the written notice of rights sent to the parents of those appearing before the juvenile court. See text at note 29, supra. Because of the classification adopted, it is unnecessary to consider whether appointment to "Legal Aid," though entered on the record and formally made, is satisfactory where, as in Zenith, appointment is not made to an individual practitioner and the Legal Aid Office is not established as an office licensed to practice law and would, apparently, not technically be bound by an appointment.

39. See Tables 1 and 2 supra, and accompanying text for discussion of the Zenith as well as Gotham and Metro samples.

40. See United States ex rel. Brown v. Fay, 242 F. Supp. 243 (D.C.N.Y. 1965); People v. Byroads, 24 App. Div.2d 732, 263 N.Y.S.2d 401 (1965).

41. It may be argued that Gotham's juvenile court was merely awaiting the anticipated changes in the rules of court, supra note 7. If this is a plausible argument, however, it does not abrogate the authority of the Supreme Court's decision in Gault. Indeed, if anything, it indicated the power of juvenile court tradition in resisting change.

42. As noted previously, the written notice of counsel supplied in these two cities was also deficient. See page 506, supra.

43. See Cherrie v. United States, 179 F.2d 94 (10th Cir. 1949); Thompson, supra note 30.

44. See pages 550-552, infra, for a discussion of social factors influencing communication processes and their relevance to the issue of valid waiver.

45. E. D. Morgan, Basic Problems of Evidence (Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association 1963), quoted in E. Webb, The Interview, or The Only Wheel in Town, 23 (unpublished ms. Northwestern University, undated).

46. The significance of the judge's status vis-a-vis those appearing before him is discussed later. See pages 550-552, infra.

47. Although foreknowledge of a juvenile's prior history may well constitute prejudicial error, traditional juvenile court philosophy and practice has tended to support procedures whereby the judge becomes familiar with the youth's background before an adjudication hearing. See generally, E. Krasnow, Social Investigation Reports in the Juvenile Courts: Their Uses and Abuses, 12 Crime & Delin. 151 (1966); Teitelbaum, The Use of Social Reports in Juvenile Court Adjudications, 7 J. Fam. L. 425 (1967).

48. See In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943); Driscoll, supra note 2; President's Commission on Law Enforcement and Administration of Justice, supra note 2.

49. See Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965); United States Children's Bureau, Standards for Juvenile and Family Courts 72 (1966).

50. 387 U.S. 1, 51-52.

51. Id. at 55.

52. 8 J. Wigmore, Evidence §2260, at 369 (McNaughten Rev. 1961).

53. Id. at §2268, p. 406, and cases cited at n. 6. The Uniform Rules of Evidence, rule 23 (1), provides a typical statement of the principle: “Every person has in a criminal action in which he is an accused a privilege not to be called as a witness and not to testify.”

54. See United States v. Housing Foundation of America, 176 F.2d 665 (3d Cir. 1959).

55. Griffin v. California, 380 U.S. 609 (1965).

56. 304 U.S. 458 (1938).

57. Wood v. United States, 128 F.2d 265, 277 (D.C. Cir. 1942).

58. 384 U.S. 436, 475 (1966).

59. 369 U.S. 506 (1962).

60. 78 N.Y.S.2d 596 (Sup. Ct. 1948).

61. Id. at 600. See People v. Glaser, 238 Cal. App.2d 819, 48 Cal. Rptr. 427 (1965), cert. denied, 385 U.S. 880, reh. denied, 385 U.S. 965; State v. De Cola, 33 N.J. 335, 164 A.2d 729 (1960) (grand jury investigation); People v. Morett, 69 N.Y.S.2d 540 (App. Div. 1947); State v. Halvorsen, 110 N.W.2d 132 (S.D. 1961) (coroner's inquest).

62. The final sample of cases is discussed at pages 497-500, supra; see Table 2 supra, for the number of cases in the three cities where the privilege was deemed relevant.

63. United States v. Gernie, 252 F.2d 664 (2d Cir. 1958), cert. denied, 356 U.S. 968, reh. denied, 357 U.S. 944; Knox v. State, 234 Md. 203, 198 A.2d 285 (1964); Commonwealth ex rel. Blackman v. Banmiller, 405 Pa. 560, 176 A.2d 682 (1962); State v. Nelson, 65 Wash. 2d 189, 396 P.2d 540 (1964). See United States v. Cioffi, 242 F.2d 473 (2d Cir. 1957), cert. denied, 353 U.S. 975; People v. Sierra, 117 Cal. App. 2d 649, 256 P. 2d 577 (1953). But see Wood v. United States, 128 F.2d 265 (D.C. Cir. 1942).

64. 387 U.S. at 42-57, passim.

65. 61 Cal. Rptr. 874 (1967).

66. Id. at 877, n. 5.

67. Id. at 877 (emphasis added).

68. 387 U.S. 1, 44 (emphasis added).

69. Cf. People v. Chlebowy, supra note 56.

70. However, the validity of the guilty plea upon which waiver of the privilege is predicated may be questioned and the effect of an unrepresented juvenile's admission is considered later. See text at notes 107-11, infra.

71. A “partial advice” category, used in Tables 4 and 5, supra, to describe compliance with the right to counsel, is inappropriate in analyzing the privilege against self-incrimination. Since the only requirement for compliance with the privilege is that the juvenile be informed of his right to silence, advice must be either full or not at all.

72. See pages 519-520, supra.

73. 8 Wigmore, Evidence §2268, at 406, and cases cited at n. 6.

74. State v. Halvorsen, 110 N.W.2d 132 (S.D. 1961).

75. Id. at 134.

76. Id. at 136-37.

77. See discussion at pages 550-552, infra.

78. See Table 6 supra.

79. 387 U.S. at 43.

80. Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).

81. 387 U.S. at 56.

82. See Dorsen & Rezneck, supra note 29, at 20; Teitelbaum, supra note 47, at 431. Cf. Cal. Welf. & Inst'ns. Code §701 (1966), which permits the juvenile court to admit any evidence that is relevant and material, but requires that a finding of delinquency be supported by a preponderance of the evidence admissible in criminal cases.

83. 5 Wigmore, Evidence §1395 (3d ed. 1940).

84. See Pointer v. Texas, 380 U.S. 400 (1965); Dorsen & Rezneck, supra note 29, at 20; Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434 (1966); Comment, Federal Confrontation: A Not Very Clear Say on Hearsay, 13 U.C.L.A. L. Rev. 366, 372 (1966).

85. As a result, the same cases, with but one exception, have been analyzed in the two categories, i.e., 121 cases were deemed relevant for the privilege against self-incrimination and 122 cases have been included in the right to confrontation sample. The additional case in the confrontation category is explained in Table 2, note d, supra. The standards of relevancy are set forth on pages 497-500, supra.

86. See page 498, supra.

87. The relationship is particularly striking when the categories of “Committed to institution” and “Committed to institution-sentence suspended” are combined and then correlated with whether any mention was made of the right to counsel:

This distribution yields a lambda of .40 (a directly interpretable measure of association for nominal scales). See L. C. Freeman, Elementary Applied Statistics 71-78 (1965). Although a chi-square test of significance is not strictly applicable, due to lack of random assignment, computation of this statistic yields a value of 14.17, p. < .001. It is obvious that there is an unusually strong relationship between institutionalization and the likelihood that a child will in some manner be told of his right to a lawyer.

88. 387 U.S. 1, 41.

89. The state statute governing Metro's court provides that If the court finds that the child ... is delinquent ... it may by order entered proceed as follows: (A) Place the child ... in an institution ...; (B) Commit the child temporarily or permanently ... to the youth commission or to a county or district training facility ... or to any institution, or to any agency ... authorized and qualified to provide or secure the care, treatment or placement required in the particular case. ...

90. Combining “commitment” and “suspended commitment” categories (supra note 87) and correlating them with the mention of the privilege against self-incrimination yields a lambda of 0 and a chi-square value of 3.34, .05>p<.10. There is no discernible relationship between these categories.

91. See page 517, supra.

92. Given the overall thrust of the data reported in this part of the article and in sections IV through VI, it is not surprising to find that in Metro and Gotham the overwhelming majority of youths in our sample were adjudicated delinquent. The following table summarizes the outcomes of all cases in the three cities:

a. This includes one case that was technically dismissed but the juvenile was held in custody for a violation of parole.

b. In three of these cases the evidence against the juvenile was heard by the judge before the continuance was granted.

c. In one case the continuance for a witness was unimportant, since the case against the juvenile turned on an eyewitness identification and the complainant—the only eyewitness to the offense—was unable to make a positive identification.

d. This figure includes two cases where our observer left the courtroom before the conclusion of the case.

93. In re Gault, 387 U.S. 1, 55 (1967). The failure to consider the waiver issue with care is especially surprising because several of the justices displayed great interest in the question during oral argument.

94. Id. at 42.

95. Johnson v. Zerbst, 304 U.S. 458 (1938).

96. Williams v. Huff, 142 Fed. 91 (D.C. Cir. 1941); People v. Hardin, 207 Cal. Supp.2d 336, 24 Cal. Rptr. 563 (1962); Carpentier v. Lainson, 248 Iowa 1275, 84 N.W.2d 32 (1957).

97. Shaffer v. Warden of Md. House of Correction, 211 Md. 635, 126 A.2d 573 (1956).

98. See United States v. Dunbar, 55 F. Supp. 678 (E.D.N.Y. 1944) (“limited schooling”); Ex parte Ray, 87 Okla. Crim. 436, 198 P.2d 756 (1948) (3d grade).

99. 62 Cal. Rptr. 586, 432 P.2d 202 (1967).

100. Id. at 595, 432 P.2d at 211.

101. Id. at 594, 432 P.2d at 210.

102. See People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466 (1968), holding that a murder confession was not inadmissible “merely because of his youth [14 years of age] and below normal mental faculties [mental age of 9 years, 9 months].”

103. Miranda v. Arizona, 384 U.S. 436, 475 (1966).

104. Carnley v. Cochran, 369 U.S. 506 (1962).

105. 287 U.S. 45 (1932).

106. Id. at 69.

107. Such a situation may arise where, lor example, a youth is charged with criminal trespass to a vehicle. This offense typically applies where the accused has knowingly entered a vehicle without the authority of the owner. One unsophisticated in law may not surprisingly conclude that the mere fact of having ridden in what turned out to be a stolen car constitutes guilt of the offense charged. His erroneous conclusion may be reinforced by the fact that he is treated as guilty by the police and the juvenile court's intake officer, as indicated by the fact that he is arrested, questioned and then referred to court as a delinquent.

108. 387 U.S. 1, 33.

109. Admittedly, plea bargaining is not so great a factor in juvenile cases as in adult prosecutions, because the result of having been found involved, no matter what the charge, is the same (i.e., delinquent) and because dispositions, since they take into account the social record of the child, are not directly related to the underlying charge.

110. Comment, Waiver of the Right to Counsel in State Court Cases: The Effect of Gideon v. Wainwright, 31 U. Chi. L. Rev. 591, 601 (1964).

111. See text at notes 151-178, infra.

112. 372 U.S. 335 (1963).

113. Id. at 344. The difficulty of the defendant's position is, of course, maximized where the State's Attorney's Office appears for the people. Speaking of adult cases, the United States Supreme Court has recognized that “A layman is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance and bewilderment.” William v. Kaiser, 323 U.S. 471, 476 (1943). While most juvenile courts do not now employ the services of the prosecutor's office, Gault recognized that the situation of a minor before the court is such that the right to counsel is of fundamental importance even without prosecutorial participation. The present trend, it may be noted, is toward bringing the State's Attorney into juvenile court, and the Vera Institute of Justice has recently begun a study directed to that end for New York City.

114. See text at notes 103-04, supra. See generally Comment supra note 110.

115. President's Commission on Law Enforcement and Administration of Criminal Justice, supra note 2, at 32.

116. See text at note 135 infra.

117. C. Schinitsky, The Role of the Lawyer in Children's Court, 17 Record of N.Y.C.B.A. 10, 15 (1962), quoted in Task Force Report at 32.

118. See H. Pollock, Equal Justice in Practice, 45 Minn. L. Rev. 737, 741 (1961).

119. 387 U.S. at 36, citing Powell v. Alabama, 287 U.S. 45, 61 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).

120. One former juvenile court judge in Los Angeles made it a practice to call attorneys into chambers to explain that “his function in juvenile court was very different from that of counsel in any other kind of court ...,” and that he could best serve his client's interests “by helping to interpret the philosophy of the court to the ward ...” W. McKesson, Right to Counsel in Juvenile Proceedings, 45 Minn. L. Rev. 843, 846 (1961). The same judge met the suggestion by counsel that strict rules of evidence be followed by stating that it would then be necessary to transfer the case to criminal court. “This suggestion usually brought a change of attitude in belligerent counsel.” Id.

121. 387 U.S. 1, 21.

122. Id. at 19-20.

123. Id. at 38, n. 65.

124. 380 U.S. 609 (1965).

125. Id. at 613, quoting Wilson v. United States, 149 U.S. 60 (1892).

126. President's Commission on Law Enforcement and Administration of Criminal Justice, supra note 2, at 37.

127. See Brookhart v. Janis, 384 U.S. 1 (1966).

128. 380 U.S. 400 (1965).

129. Id. at 403 (emphasis added).

130. Id. at 407.

131. Id. (emphasis added).

132. See Comment, Federal Confrontation: A Not Very Clear Say on Hearsay, 13 U.C.L.A. L. Rev. 366, 367 (1966).

133. 380 U.S. 415 (1965).

134. 384 U.S. 1 (1966).

135. Schinitsky, supra note 117.

136. 387 U.S. at 41-42.

137. Id. at 55.

138. “The privilege is that of the person under examination as witness and ... is intended for his protection alone.” 8 Wigmore, Evidence §2270, at 414-15.

139. Id., n. 1.

140. If the child is of very tender years, and as a practical matter could not be found to make a valid waiver, and appeared through counsel, the attorney, should he decide to have the youth testify, would in effect waive the minor's privilege on his behalf. The child himself, by hypothesis, is not capable of making an effective waiver, and if he is incompetent for that purpose, it is clear that the decision to take the stand is for all intents and purposes made by the lawyer, though for the child's benefit. The Supreme Court apparently suggests that this decision can be made by a parent as well as by counsel, assuming he is present and competent.

141. See In re Sippy, 97 A.2d 455 (D.C. Mun. Ct. App. 1953).

142. See, e.g., Powell v. Alabama, 287 U.S. 45, 69 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

143. A short but comprehensive discussion of role theory is found in T. Sarbin, Role Theory, in 1 Handbook of Social Psychology 223 (G. Lindzey ed. 1954).

144. E. Maccoby and N. Maccoby, The Interview: A Tool of Social Science, in 1 Handbook of Social Psychology 462 (G. Lindzey ed. 1954).

145. Id. at 463.

146. W. Haggstrom, The Power of the Poor, in Poverty in America 329 (L. Fermin, J. Kornbluh & A. Haber eds. 1966).

147. “The poor are generally ineffective constituents of legal institutions. They rarely have the motivation or capacity for using legal agencies to their own advantage or for exerting pressures on agencies to remain true to statutory objectives.” J. E. Carlin, J. Howard, & S. L. Messinger, Civil Justice and the Poor: Issues for Sociological Research, 1 L. & Soc. Rev. 9, 43 (1966).

148. Webb, supra note 45, at 15.

149. Maccoby and Maccoby, supra note 144, at 472. A related problem is the predisposition to respond to questions without regard to their content. This phenomenon, termed a “response set,”

150. L. Kohlberg, Development of Moral Character and Moral Ideology, in 1 Review of Child Development Research 383, 407 (L. Hoffman & M. Hoffman eds. 1964).

151. If, for example, a minor and his parent decided to proceed without an attorney after having consulted with one and decided his services were unnecessary, a valid waiver might be found. See Dorsen & Rezneck, supra note 29, at 1, 18.

152. Winslich v. Farrow, 159 S.W. 520 (Mo. App. 1942); McCormick v. Crotts, 198 N.C. 664, 153 S.E. 152 (1930); Hines v. Cheshire, 36 Wn. 2d 467, 219 P.2d 100 (1950).

153. The usual rule is that infancy is a defense to an action upon a negotiable instrument to the extent that it is a defense to a simple contract. W. Britton, Bills and Notes §126 (1943); Uniform Negotiable Instruments Law §22; Uniform Commercial Code §§3-207 and 3-305, and Comments thereto.

154. Uniform Commercial Code §3-305, Comment 4.

155. 1 S. Rowley, Partnerships §6.4 (2d ed. 1960).

156. Pelletier v. Couture, 148 Mass. 269, 19 N.E. 400 (1889); Sacco v. Schallus, 11 N.J. Super. 197, 79 A.2d 143 (1950). See 1 Rowley, id.; Comment, 28 Tenn. L. Rev. 395 (1961). Even the limitation of the infant's right to withdraw his capital contribution is attributable to the desire for commercial stability rather than to any belief in the minor's competency. See Note, 40 Harv. L. Rev. 472, 475 (1927).

157. Woodson v. Hare, 244 Ala. 301, 13 So. 2d 172 (1943). See W. Seavey, Agency §14 (1964).

158. Hodge v. Feiner, 388 Mo. 268, 90 S.W.2d 90 (1936); Wilcox v. Wunderlich, 73 Utah 1, 272 Pac. 207 (1928).

159. Seavey, supra note 157 (emphasis added).

160. See H. Wood, Validity of Transactions with Minors and Incompetents, 1951 U. Ill. L.F. 212, 217. It appears that a youth over the age of 14 could dispose of his personalty. Deane v. Littlefield, 18 Mass. (1 Pick.) 239, 243 (1822).

161. E.g., Mass. Ann. Laws ch. 191, §1 (1955).

162. E.g., Ill. Rev. Stat. ch. 3, §42 (1965).

163. In re Tetsubumi Yano's Estate, 188 Cal. 645, 206 Pac. 995 (1922); Cadwell v. Sherman, 45 Ill. 348 (1867).

164. Ordinarily a testator must have sufficient mental ability “to know and remember who are the natural objects of his bounty, to comprehend the kind and character of his property, and to make disposition of that property according to some plan formed in his mind.” Malone v. Malone, 26 Ill. App. 2d 291, 167 N.E.2d 703 (1960). See Sloger v. Sloger, 26 Ill. App. 2d 366, 186 N.E.2d 288 (1963). If the testator possesses such capacity, he need not be of absolutely sound mind. Anthony v. Anthony, 20 Ill.2d 584, 170 N.E.2d 603 (1961). One may have adequate testamentary capacity though not capable of engaging in an ordinary business transaction, McClean v. Barnes, 285 Ill. 203, 120 N.E.2d 628 (1918), and it has been held that old age, or feeble health, or both, even though combined with a defective memory, do not necessarily constitute incompetence to make a valid will. Challiner v. Smith, 396 Ill. 106, 71 N.E.2d 324 (1947).

165. Doornbos v. Doornbos, 12 Ill. App. 2d 473, 139 N.E.2d 844 (1956); Yager v. Yager, 313 Mich. 300, 21 N.W.2d 138 (1946). It is generally held that a judgment secured against an unrepresented minor, while it may be erroneous and subject to reversal, see Haskell v. Perkins, 16 Ill. App. 2d 428, 148 N.E.2d 625 (1958), is voidable only. See Skaggs v. Industrial Commission, 371 Ill. 535, 21 N.E.2d 731 (1939); Bucher v. Haskell, 292 N.Y.S. 387 (App. Div. 1936). Some courts, however, have gone further and found that lack of representation constitutes a jurisdictional defect, and any judgment against the minor is void. See In re Powell, 167 Kan. 283, 205 P.2d 1193 (1949); Bielawski v. Burke, 121 Vt. 62, 147 A.2d 674 (1959).

166. See In re Anderson's Estate, 20 Ill. App.2d 305, 155 N.E.2d 839 (1959); Quillen v. Board of Education, 203 Misc. 400, 115 N.Y.S.2d 122 (Sup. Ct. 1952).

167. 1 W. Blackstone, Commentaries *436.

168. State v. Gans, 168 Ohio St. 174, 179, 151 N.E.2d 709, 712-13 (1958), cert. denied, 359 U.S. 945 (1959) (emphasis added). The strength of this societal judgment that minors below a given age are not capable of entering into marriage is further indicated by the decisions holding that acts leading to the marriage of a girl below marriageable age constitute contributing to the delinquency of a minor, even in the absence of other indications of delinquency on the part of the minor. Thus, the adoptive parents of an 11-year-old girl, who took her out of state and consented to her marriage have been held guilty of an act tending to cause delinquency. Id. See Denkins v. Denkins, 76 N.Y.S.2d 465 (Dom. Rel. Ct. 1948). But see Spencer v. People, 133 Colo. 96, 292 P.2d 971 (1956).

169. Masterson v. Cheek, 23 Ill. 72 (1859); Cole v. Manners, 76 Neb. 454, 307 N.W. 777 (1906) (lease); Faircloth v. Johnson, 189 N.C. 429, 127 S.E. 346 (1925) (mortgage); 3 American Law of Property §12.69 (A. J. Casner ed. 1952). The minority rule is even more cautious, holding that deeds by minors are void. 3 American Law of Property §12.69 (A. J. Casner ed. 1952).

170. Gillmett v. Tourncott, 213 Mich. 617, 182 N.W. 128 (1921); Person v. Chase, 37 Vt. 647 (1865). Compare Mott v. Iossa, 119 N.J.Eq. 185, 181 Atl. 689 (1935) (gift by minor voidable, but not void).

171. The rule that delivery and acceptance of a deed are ordinarily essential to the validity of a conveyance is relaxed where the deed is beneficial to an infant grantee. Masterson v. Cheek, supra note 169; McReynolds v. Stoat, 288 Ill. 22, 122 N.E. 860 (1919). Similarly, no formal acceptance on the part of a minor donee is required; if the gift is to the minor's advantage, acceptance is presumed by law. Klingaman v. Burch, 216 Ind. 695, 25 N.E.2d 996 (1940); Davis' Committee v. Loney, 290 Ky. 644, 162 S.W.2d 189 (1942).

172. It has been held that if a gift of land does not inure to the minor's benefit, it will be repudiated by law even though the infant may have made a formal acceptance. See De Levillain v. Evans, 39 Cal. 120 (1870). And he cannot be bound by any gift he may purport to make. Gillmett v. Tourncott, supra note 170. The doctrine of equitable conversion has been held inapplicable to transactions involving a minor party, on the theory that an infant is not capable of determining whether a change in property nature is beneficial. Horton v. McCoy, 47 N.Y. 21 (1871).

173. W. Prosser, Law of Torts §128 (3d ed. 1964). Indeed, 6-year-old children have been held liable in trespass, for entering plaintiff's premises and destroying the shrubbery, Huchting v. Engel, 17 Wis. 230 (1863), and for assaulting plaintiff by hitting him with a stone, Jorgenson v. Nudelman, 45 Ill. App. 2d 350, 195 N.E.2d 422 (1963).

174. Id. at 1024.

175. See People v. Lara, 62 Cal. Rptr. 586, 596, 432 P.2d 202, 212 (1967).

176. Huchting v. Engel, 17 Wis. 230 (1863).

177. Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941).

178. Prosser, supra note 173 at 1025.

179. E. Studt, The Client's Image of the Juvenile Court, in Justice for the Child 200 (M. Rosenheim ed. 1962).

180. M. Baum & S. Wheeler, Becoming an Inmate, in Controlling Delinquents 153, 165 (S. Wheeler ed. 1968).

181. The bulk of the youths accepted their commitment as fair. ... Save for those whose first reaction was one of indignation, they did not, by and large, deny the rightness or justness of the decision. This seems very important, for it means that despite their haziness about the court proceeding, despite the fact that they have been told, oftentimes various and conflicting things about what is happening to them, despite their shock and unhappiness at commitment, they still largely accord legitimacy to the decision, and by doing so, to the decisionmaking apparatus of the courts. Id. at 171.

See B. A. Maher, The Delinquent's Perception of the Law and the Community, in Controlling Delinquents 187, 220 (S. Wheeler ed. 1966).

182. E.g., Cal. Welfare & Institutions Code §500 et seq. (1961); Ill. Rev. Stat. ch. 37 §701 et seq. (1966); N. Y. Family Court Act (1962).

183. The status of the privilege against self-incrimination and rights to counsel, cross-examination, confrontation prior to Gault are discussed in note 2 supra.

184. At least three states undertook substantial revision of their juvenile court laws during 1967, apparently in response to the Gault decision. Colorado enacted a new Children's Code, Colo. Rev. Stat. ch. 22, §22-1-1 et seq. (Supp. 1967), explicitly guaranteeing the right to retained or appointed counsel (§22-1-6), and providing generally that the rules of evidence applicable to civil proceedings shall apply to delinquency hearings (§22-1-7). Vermont added a new chapter to its Code, specifically devoted to juvenile court procedures. Vt. Stat. Ann. tit. 33, ch. 12 (Supp. 1968). This chapter contains provisions relating to notice of charges (§§645-648), the privilege against self-incrimination (§652), and the right to counsel (§653). California's Welfare and Institutions Code was amended to further guarantee the rights to notice of charges (Cal. Welf. & Inst. Code §§630, 630.1, 658 [Supp. 1967]), counsel (§§634, 679, 700), confrontation and cross-examination (§702.5) and the privilege against self-incrimination (§702.5). It is also noteworthy that other amendments were directed to assuring that a juvenile to be charged with delinquency would be afforded Miranda-type rights. (Cal. Welf. & Inst. Code §§625, 627.5 [Supp. 1967]). The practical effect of Gault's requirements, particularly the right to counsel, have not gone unnoticed. One observer states that “Already the trend is clear. In Philadelphia, only about 5 percent of the children appearing in juvenile court had been represented by counsel in the period immediately preceding 1967. At present, close to 40 percent of the children are represented.” S. Coxe, Lawyers in Juvenile Court, 13 Crime & Delin. 488 (1967). Presumably statutory modifications of the sort mentioned above will further reinforce this trend.

185. See pages 497-498, supra.

186. Is it conceivable that what we have reported observing in Metro and Gotham is terribly unusual, so much so that one would have great difficulty finding other courts that indulged in the same practices? The answer is yes—it is conceivable—but we strongly doubt it. First, we know of nothing extraordinary about these courts, save perhaps that they frequently functioned under the gaze of our observers. In addition, frequent conversations during the past several years with juvenile court judges and occasional observations of delinquency hearings in various parts of the country have substantiated our belief that the courts in Metro and Gotham are quite typical. Significantly, in the only study we have seen of actual court hearings made subsequent to Gault, substantially the same findings as our own are reported. During October and November 1968, The Washington Post published a series of articles based on a 5 month survey of the six suburban juvenile courts in the metropolitan area surrounding Washington, D. C. (Incidentally, none of the courts studied were Metro, Gotham or Zenith.) The following excerpts are from the third article in the Washington Post series and appeared on page G2 in the paper's October 24, 1968, edition:

187. See generally, section I, supra.

188. 384 U.S. 436 (1966).

189. R. Medalie, L. Zeitz & P. Alexander, Implementation of Miranda in D. C., 66 Mich. L. Rev. 1347 (1968); A. Reiss & D. Black, Interrogation and the Criminal Process, 374 Annals 47 (1967); and Interrogation in New England: The Impact of Miranda, 76 Yale L.J. 1519 (1967).

190. E. Lemert, Legislating Change in the Juvenile Court, 1967 Wis. L. Rev. 421, 431.

191. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 87 (1967).