Fourteenth Amendment, Section 1 — Procedural Due Process: Criminal Cases
Fourteenth Amendment, Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Amdt14.S1.5.5 Criminal Cases
Amdt14.S1.5.5.1 Overview of Procedural Due Process in Criminal Cases
The Fourteenth Amendment’s guarantee of procedural due process affects procedures in state criminal cases in two ways. First, through the doctrine of incorporation, the Supreme Court has held that the Due Process Clause applies to the states nearly all the criminal procedural guarantees of the Bill of Rights, including those of the Fourth, Fifth, Sixth, and Eighth Amendments.1 Second, the Court has held that the Due Process Clause prohibits government practices and policies that violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights.2 The procedural due process protections of the Fourteenth Amendment are comparable in scope to the limitations that the Fifth Amendment imposes on federal criminal proceedings.3
The Court has explained, “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”4 In assessing whether a challenged criminal procedure denies a person procedural due process, the Court generally considers whether the practice violates “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.”5 The Court has also held that, “as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice,” and that to find a denial of due process the Court “must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”6
Procedural due process analysis contains a historical component, as Supreme Court cases “have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country.”7 The Court thus asks “whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.”8
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Amdt14.S1.5.5.2 Impartial Judge and Jury
Bias or prejudice either inherent in the structure of a trial system or imposed by external events can infringe a person’s right to a fair trial. Thus, as in the civil context,1 procedural due process requires criminal cases to be overseen by an unbiased judge and decided by an impartial jury.
For instance, in Tumey v. Ohio, the Supreme Court held that it violated due process for a judge to receive compensation out of fines imposed on convicted defendants, and no compensation (beyond his salary) “if he does not convict those who are brought before him.”2 In other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify the judge from citing and sentencing the contemnors.3
The Court has also found due process violations when a biased or otherwise partial juror participated in a criminal trial, although there is no presumption that all jurors with a potential bias are in fact prejudiced.4 Public hostility toward a defendant that intimidates a jury is a classic due process violation.5 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.6 For instance, the Supreme Court has raised concerns about the impact on a jury of televising trials, though ultimately the Court has held that the Constitution does not altogether preclude televising state criminal trials.7
The way a criminal defendant appears in court may also raise due process concerns about jury impartiality. The Court has held that it violates due process when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.8 Likewise, Court has held that the use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, raises due process concerns. In Deck v. Missouri, the Court noted a rule dating back to British common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.”9 The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and “affronts the dignity and decorum of judicial proceedings.”10 The Court in Deck disapproved of the routine use of visible restraints when a defendant has already been found guilty and a jury is considering the application of the death penalty. The Court explained that such restraints can be used only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it.11
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Amdt14.S1.5.5.3 Identification in Pre-Trial Process
In criminal trials, the jury usually decides the reliability and weight to be accorded an eyewitness identification, guided by instructions from the trial judge and subject to judicial authority under the rules of evidence to exclude overly prejudicial or misleading evidence. At times, however, a defendant alleges that an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under the Due Process Clause.1 These cases most commonly challenge police-arranged procedures such as lineups, showups, and photographic displays,2 but some challenge identifications with less police involvement.3
The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.4 Two elements are required for due process-based suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.5 Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case.6 The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.7 Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful.8
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Amdt14.S1.5.5.4 Plea Bargaining in Pre-Trial Process
A criminal defendant may elect to plead guilty instead of requiring that the prosecution prove him guilty. Often, a defendant who pleads guilty does so as part of a “plea bargain” with the prosecution, where the defendant is guaranteed a lighter sentence or is allowed to plead guilty to a lesser offense.1 The Supreme Court has held that the government may not structure its system to coerce a guilty plea.2 However, the Court has upheld guilty pleas that are entered voluntarily, knowingly, and understandingly, even if the defendant pled guilty to obtain an advantage.3
The guilty plea and the often concomitant plea bargain are important components of the criminal justice system,4 and it is permissible for a prosecutor negotiating a plea bargain to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.5 A defendant who pleads guilty gives up the right to challenge most aspects of the proceeding against him. However, some constitutional challenges may survive a plea if they go to “‘the very power of the State’ to prosecute the defendant.”6 Moreover, a prosecutor denies due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.7
In accepting a guilty plea, a court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly.8 The Court has also held that “the adjudicative element” inherent in accepting a guilty plea must include safeguards “to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”9
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Amdt14.S1.5.5.5 Guilt Beyond a Reasonable Doubt
Absent a guilty plea,1 the Due Process Clause requires proof beyond a reasonable doubt before a person may be convicted of a crime. The reasonable doubt standard is closely related to the rule that a defendant is presumed innocent unless proven guilty.2 These rules help to ensure a defendant a fair trial3 and require that a jury consider a case solely on the evidence.4 The Supreme Court has explained:
The reasonable doubt standard plays a vital role in the American scheme of criminal
procedure. It is a prime instrument for reducing the risk of convictions resting on
factual error. The standard provides concrete substance for the presumption of
innocence—that bedrock “axiomatic and elementary” principle whose “enforcement
lies at the foundation of the administration of our criminal law.”5
For many years, the Court presumed that “reasonable doubt” was the proper standard for criminal cases.6 However, because the standard was so widely accepted, it was not until 1970 that the Court expressly held that due process required the standard. That year, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments protect the accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”7
The Court had long held under the Due Process Clause that it must set aside convictions that are supported by no evidence at all.8 However, the holding in Winship left open the question of whether appellate courts reviewing criminal convictions should weigh the sufficiency of trial evidence. In the 1979 case Jackson v. Virginia, the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt.9 The appropriate inquiry is not whether the reviewing court itself believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.10
Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.11 Thus, the Court held in Mullaney v. Wilbur that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce his offense from homicide to manslaughter.12 The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision called into question practices in many states under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant task given the large numbers of affirmative defenses.13
In a subsequent case, however, the Court rejected the argument that Mullaney means that the prosecution must negate an insanity defense.14 Later, in Patterson v. New York, the Court upheld a state statute that required a defendant asserting extreme emotional disturbance as an affirmative defense to murder to prove the defense by a preponderance of the evidence.15 According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (including death, intent to kill, and causation) beyond a reasonable doubt, while allowing the defendant to prove by preponderance of the evidence an affirmative defense that would reduce the degree of the offense.16
Another distinction that can substantially affect the prosecution’s burden is whether a fact to be proven in a criminal trial is an element of a crime or a factor in determining a convicted offender’s sentence. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence standard.” The Court has taken a formalistic approach to this issue, allowing states to designate which facts fall under which of these two categories. For instance, the Court has held that a state may designate as a sentencing factor the question whether a defendant “visibly possessed a gun” during a crime, allowing a judge to resolve the question based on the preponderance of evidence.17
Although the Court has generally deferred to the legislature’s characterizations in this area, it limited that principle in Apprendi v. New Jersey, holding that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.18 The Court subsequently overruled conflicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.19 These holdings are subject to at least one exception, however, as the Apprendi Court held that its limitation does not apply to sentencing enhancements based on recidivism.20 Legislatures might also evade these limitations by revising criminal provisions to increase maximum penalties, then providing for mitigating factors that could reduce sentences within the newly established sentencing ranges.
An issue related to the burden of proof involves statutory presumptions, where proof of a “presumed fact” that is a required element of a crime is established through proof of another fact, known as the “basic fact.”21 In Tot v. United States, the Court held that a statutory presumption was valid under the Due Process Clause only if it met a “rational connection” test.22 In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received the firearm in interstate commerce. “Under our decisions,” it explained, “a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.”23
In Leary v. United States, the Court applied a more stringent due process test to require that, for a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”24 The Leary Court struck down a provision that permitted a jury to infer from a defendant’s possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court’s satisfaction that, although the greater part of marijuana consumed in the United States was of foreign origin, there was still a significant amount produced domestically, and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.25 The Court left open the question of whether a presumption that survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.”26
In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”27 But, with respect to permissive presumptions,
the prosecution may rely on all of the evidence in the record to meet the reasonable
doubt standard. There is no more reason to require a permissive statutory
presumption to meet a reasonable-doubt standard before it may be permitted to play
any part in a trial than there is to require that degree of probative force for other
relevant evidence before it may be admitted. As long as it is clear that the presumption
is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test
described in Leary.28
Applying that analysis, the Court concluded that a statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle did not violate due process.29
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Amdt14.S1.5.5.6 Evidentiary Requirements in Criminal Cases
Beyond the general rule that the prosecution must prove a criminal defendant’s guilt beyond a reasonable doubt,1 the Due Process Clause also imposes certain limitations on specific evidentiary matters in criminal trials. For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding hypnotically refreshed testimony.2 And, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process calls for reciprocal discovery in such circumstances, requiring the state to give the defendant pretrial notice of its rebuttal evidence on the alibi issue.3
In evaluating whether certain procedures satisfy due process, the Court may consider how separate procedures interact. The combination of otherwise acceptable rules of criminal procedure may in some instances deny a defendant due process. Thus, in one case, the Court found that a defendant was denied his constitutional right to present his defense in a meaningful way by the combination of two rules that (1) denied the defendant the right to cross-examine his own witness in order to elicit exculpatory evidence and (2) denied him the right to introduce the testimony of witnesses about matters told to them out of court on the ground that the testimony would be hearsay.4 Conversely, a questionable procedure may be saved by its combination with another. Thus, in another case, the Court held that it does not deny a defendant due process to subject him to trial before a non-lawyer police court judge when he can obtain a later trial de novo in the state’s court system.5
The government violates the Due Process Clause when it obtains a conviction by presenting testimony the prosecuting authorities know was perjured. In one case, the Court stated in dictum that the clause
cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a
conviction through the pretense of a trial which in truth is but used as a means of
depriving a defendant of liberty through a deliberate deception of court and jury by the
presentation of testimony known to be perjured. Such a contrivance . . . is as
inconsistent with the rudimentary demands of justice as is the obtaining of a like
result by intimidation.6
The Court has applied that principle to require state officials to controvert allegations that knowingly false testimony had been used to convict7 and to overturn convictions found to have been so procured.8 Extending the principle, the Court in Miller v. Pate overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a crime belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts, the shorts were not in fact bloodstained, and the prosecution had known those facts.9
This line of reasoning has also required disclosure to the defense of information that the prosecution did not rely on at trial.10 In Brady v. Maryland, the Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”11 In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder.12 In a subsequent case, the Court described the “heart of the holding in Brady” as concerning
the prosecution’s suppression of evidence, in the face of a defense production request,
where the evidence is favorable to the accused and is material either to guilt or to
punishment. Important, then, are (a) suppression by the prosecution after a request by
the defense, (b) the evidence’s favorable character for the defense, and (c) the
materiality of the evidence.13
In United States v. Agurs, the Court summarized and expanded the prosecutor’s obligation to disclose exculpatory evidence to the defense, even in the absence of a request by the defendant, or upon a general request.14 The Agurs Court laid out three due process principles that apply to the use of evidence in criminal cases. First, if the prosecutor knew or should have known that testimony given during the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.15 Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.16 Third, as the Court held for the first time in Agurs, if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” the prosecution has a duty to reveal to the defense obviously exculpatory evidence.17 Under the third prong, if the prosecutor did not reveal relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.18
Agurs left open questions about how courts should evaluate the materiality of undisclosed evidence. The Court addressed those questions in the 1985 case United States v. Bagley.19 In Bagley, the Court established a uniform test for materiality, holding that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.20 That materiality standard, also found in contexts outside of Brady inquiries,21 applies not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses.22 Thus, in a case where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and the punishment, concluding that there was no reasonable probability that the jury would have reached a different result.23
The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor’,” and that “‘the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’”24
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Amdt14.S1.5.5.7 Competency for Trial
The Supreme Court has held that it is a denial of due process to try or sentence a defendant who is “insane” or incompetent to stand trial.1 When it becomes evident during the trial that a defendant is or has become “insane” or incompetent, the court on its own initiative must conduct a hearing on the issue.2 There is no constitutional requirement that the state assume the burden of proving a defendant competent, though the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.3
A person found incompetent for trial may be committed to a psychiatric institution, but a state cannot indefinitely commit a person charged with a criminal offense based on a finding of incompetence to stand trial. Rather, a court has the power to commit the accused for a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, the state must either release the defendant or institute the ordinary civil commitment proceeding that would be required to commit any other citizen.4
When a defendant is found competent to stand trial, the state has significant discretion in how it takes account of any mental illness or defect that affected the defendant at the time of the offense in determining criminal responsibility.5 The Court has identified several tests that states use in varying combinations to assess insanity defenses: the M’Naghten test (cognitive incapacity or moral incapacity),6 volitional incapacity,7 and the irresistible-impulse test.8 Based on these varying tests, the Court has opined that “it is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.”9 To illustrate, in the 2020 case Kahler v. Kansas, the Court held that the Due Process Clause does not require a state to adopt M’Naghten’s moral-incapacity test as a complete insanity defense resulting in an acquittal.10 The Court stated that “[d]efining the precise relationship between criminal culpability and mental illness,” because it involves “hard choices” among competing values and evolving understandings of mental health, “is a project for state governance, not constitutional law.”11
Despite the requirement that states prove each element of a criminal offense,12 criminal trials generally proceed with a presumption that the defendant does not have a severe mental illness, and states may limit the evidence that a defendant may present to challenge that presumption. In Clark v. Arizona, the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense.13 The Clark Court weighed competing interests to hold that such evidence could be “channeled” to the issue of insanity due to “the controversial character of some categories of mental disease,” the “potential of mental disease evidence to mislead,” and the “danger of according greater certainty to such evidence than experts claim for it.”14
If a criminal defendant is acquitted by reason of insanity, due process does not bar commitment of the defendant to a mental hospital, and the period of confinement may extend beyond the period for which he could have been sentenced to prison if convicted.15 The Court has explained that the purpose of confinement is not punishment, but treatment, and therefore the length of a possible criminal sentence is “irrelevant to the purposes of . . . commitment.”16 Thus, a defendant acquitted by reason of insanity may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.”17 However, a state may not indefinitely confine an insanity defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.18
Substantive due process issues may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper, the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs.19 In Sell v. United States, the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial.20 First, however, the government must engage in a fact-specific inquiry as to whether that interest is important in a particular case.21 Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests.22
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Amdt14.S1.5.5.8 Due Process Rights of Juvenile Offenders
All fifty states and the District of Columbia have specialized laws to deal with juvenile offenders outside the criminal justice system for adult offenders.1 Juvenile justice systems handle both offenses that would be criminal if committed by an adult and delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, conduct endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. Reforms during the early part of the twentieth century provided for separating juveniles from adult offenders in adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules that due process required in criminal trials. The justification for this lack of constitutional protections was that juvenile courts were deemed to be civil, not criminal, and that the state was acting as parens patriae for juvenile offenders and was not their adversary.2
In the 1960s, however, the Supreme Court imposed substantial restriction of these elements of juvenile jurisprudence. After tracing in much detail this history of juvenile courts, the Court held in In re Gault that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the beneficial features of the system—emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, and low visibility of the process—but that the consequences of the absence of due process standards made their application necessary.3
Thus, the Court in Gault required notice of charges in time for the juvenile to prepare a defense, a hearing in which the juvenile could be represented by retained or appointed counsel, observance of the rights of confrontation and cross-examination, and protections against self-incrimination.4 The Court also held that before a juvenile could be “waived” to an adult court for trial, there had to be a hearing and findings of reasons.5 Subsequently, the Court held that the “essentials of due process and fair treatment” required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if committed by an adult.6 However, the Court has also held that jury trials are not constitutionally required in juvenile proceedings.7
On a few occasions, the Court has considered whether juveniles must be afforded the rights guaranteed to adults during investigation of crimes. In one such case, the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but also indicated that a juvenile’s waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach requires “inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him.”8 In another case, the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate.9 Instead, a simple reasonableness standard governs searches of students’ persons and effects by school authorities.10
In Schall v. Martin, the Court ruled that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, the terms of confinement serve those legitimate purposes and are nonpunitive, and applicable procedures provide sufficient protection against erroneous and unnecessary detentions.11 The Court found that a statute authorizing pretrial detention of accused juvenile delinquents upon a finding of “serious risk” that the juvenile would commit crimes prior to trial, providing for expedited hearings, and guaranteeing a formal, adversarial probable cause hearing satisfied those requirements.
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