McKeiver v. Pennsylvania, 403 U.S. 528 (1971)

Author: Justice Brennan

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McKeiver v. Pennsylvania, 403 U.S. 528 (1971)

MR. JUSTICE BRENNAN, concurring in the judgment in No. 322 and dissenting in No. 128.

I agree with the plurality opinion’s conclusion that the proceedings below in these cases were not "criminal prosecutions" within the meaning of the Sixth Amendment. For me, therefore, the question in these cases is whether jury trial is among the "essentials of due process and fair treatment," In re Gault, 387 U.S. 1, 30 (1967), required during the adjudication of a charge of delinquency based upon acts that would constitute a crime if engaged in by an adult. See In re Winship, 397 U.S. 358, 359 and n. 1 (1970). This does not, however, mean that the interests protected by the Sixth Amendment’s guarantee of jury trial in all "criminal prosecutions" are of no importance in the context of these cases. The Sixth Amendment, where applicable, commands that these interests be protected by a particular procedure, that is, trial by jury. The Due Process Clause commands not a particular procedure, but only a result: in my Brother BLACKMUN’s words, "fundamental fairness . . . [in] factfinding." In the context of these and similar juvenile delinquency proceedings, what this means is that the States are not bound to provide jury trials on demand so long as some other aspect of the process adequately protects the interests that Sixth Amendment jury trials are intended to serve.{1}

In my view, therefore, the due process question cannot be decided upon the basis of general characteristics of juvenile proceedings, but only in terms of the adequacy of a particular state procedure to "protect the [juvenile] from oppression by the Government," Singer v. United States, 380 U.S. 24, 31 (1965), and to protect him against "the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

Examined in this light, I find no defect in the Pennsylvania cases before us. The availability of trial by jury allows an accused to protect himself against possible oppression by what is, in essence, an appeal to the community conscience, as embodied in the jury that hears his case. To some extent, however, a similar protection may be obtained when an accused may, in essence, appeal to the community at large, by focusing public attention upon the facts of his trial, exposing improper judicial behavior to public view, and obtaining, if necessary, executive redress through the medium of public indignation. Of course, the Constitution, in the context of adult criminal trials, has rejected the notion that public trial is an adequate substitute for trial by jury in serious cases. But, in the context of juvenile delinquency proceedings, I cannot say that it is beyond the competence of a State to conclude that juveniles who fear that delinquency proceedings will mask judicial oppression may obtain adequate protection by focusing community attention upon the trial of their cases. For, however much the juvenile system may have failed in practice, its very existence as an ostensibly beneficent and noncriminal process for the care and guidance of young persons demonstrates the existence of the community’s sympathy and concern for the young. Juveniles able to bring the community’s attention to bear upon their trials may therefore draw upon a reservoir of public concern unavailable to the adult criminal defendant. In the Pennsylvania cases before us, there appears to be no statutory ban upon admission of the public to juvenile trials.{2} Appellants themselves, without contradiction, assert that "the press is generally admitted" to juvenile delinquency proceedings in Philadelphia.{3} Most important, the record in these cases is bare of any indication that any person whom appellants sought to have admitted to the courtroom was excluded. In these circumstances, I agree that the judgment in No. 322 must be affirmed.

The North Carolina cases, however, present a different situation. North Carolina law either permits or requires exclusion of the general public from juvenile trials.{4} In the cases before us, the trial judge

ordered the general public excluded from the hearing room and stated that only officers of the court, the juveniles, their parents or guardians, their attorney and witnesses would be present for the hearing,

In re Burrus, 4 N.C.App. 523, 525, 167 S.E.2d 454, 456 (1969), notwithstanding petitioners’ repeated demand for a public hearing. The cases themselves, which arise out of a series of demonstrations by black adults and juveniles who believed that the Hyde County, North Carolina, school system unlawfully discriminated against black school children, present a paradigm of the circumstances in which there may be a substantial "temptation to use the courts for political ends." Opinion of MR. JUSTICE WHITE, ante at 552. And finally, neither the opinions supporting the judgment nor the respondent in No. 128 has pointed to any feature of North Carolina’s juvenile proceedings that could substitute for public or jury trial in protecting the petitioners against misuse of the judicial process. Cf. Duncan v. Louisiana, 391 U.S. 145, 188, 193 (1968) (HARLAN, J., dissenting) (availability of resort to "the political process" is an alternative permitting States to dispense with jury trials). Accordingly, I would reverse the judgment in No. 128.

* The Public Defender Service for the District of Columbia and the Neighborhood Legal Services Program of Washington, D.C., have filed a brief amici in which the results of a survey of jury trials in delinquency cases in the 10 States requiring jury trials plus the District of Columbia are set forth. The cities selected were mostly large metropolitan areas. Thirty juvenile courts processing about 75,000 juvenile cases a year were canvassed:

[W]e discovered that, during the past five and a half years, in 22 out of 26 courts surveyed, cumulative requests for jury trials totaled 15 or less. In the remaining five courts in our sample, statistics were unavailable. During the same period, in 26 out of 29 courts the cumulative number of jury trials actually held numbered 15 or less, with statistics unavailable for two courts in our sample. For example, in Tulsa, Oklahoma, counsel is present in 100% of delinquency cases, but only one jury trial has been requested and held during the past five and one-half years. In the Juvenile Court of Fort Worth, Texas, counsel is also present in 100% of the cases, and only two jury trials have been requested since 1967. The Juvenile Court in Detroit, Michigan, reports that counsel is appointed in 70-80% of its delinquency cases, but, thus far in 1970, it has had only four requests for a jury. Between 1965 and 1969, requests for juries were reported as "very few."

In only four juvenile courts in our sample has there clearly been a total during the past five and one-half years of more than 15 jury trial requests and/or more than 15 such trials held.

The four courts showing more than 15 requests for jury trials were Denver, Houston, Milwaukee, and Washington, D.C.


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Chicago: Brennan, "Brennan, J., Concurring and Dissenting," McKeiver v. Pennsylvania, 403 U.S. 528 (1971) in 403 U.S. 528 403 U.S. 554–403 U.S. 557. Original Sources, accessed October 1, 2023,

MLA: Brennan. "Brennan, J., Concurring and Dissenting." McKeiver v. Pennsylvania, 403 U.S. 528 (1971), in 403 U.S. 528, pp. 403 U.S. 554–403 U.S. 557. Original Sources. 1 Oct. 2023.

Harvard: Brennan, 'Brennan, J., Concurring and Dissenting' in McKeiver v. Pennsylvania, 403 U.S. 528 (1971). cited in 1971, 403 U.S. 528, pp.403 U.S. 554–403 U.S. 557. Original Sources, retrieved 1 October 2023, from