McKeiver v. Pennsylvania/Concurrence Brennan
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, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (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, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 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, not a particular procedure, 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. 
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, 85 S.Ct. 783, 788, 13 L.Ed.2d 630 (1965), and to protect him against 'the complaint, biased, or eccentric judge.' Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (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 substitution 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 reservior 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.  Appellants themselves, without contradiction, assert that 'the press is generally admitted' to juvenile delinquency proceedings in Philadelphia.  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.  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 schoolchildren, 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, 88 S.Ct. 1444, 1469, 1472, 20 L.Ed.2d 491 (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.
^1 'A criminal process which was fair and equitable but used no juries is easy to imagine. It would make use of alternative guarantees and protections which would serve the purposes that the jury serves in the English and American systems.' Duncan v. Louisiana, 391 U.S. 145, 150 n. 14, 88 S.Ct. 1444, 1448, 20 L.Ed.2d 491 (1968). This conclusion is, of course, inescapable in light of our decisions that petty criminal offenses may be tried without a jury notwithstanding the defendant's request. E.g., District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937).
^2 The generally applicable statute, Pa.Stat.Ann., Tit. 11, § 245 (1965), merely provides that juvenile proceedings shall 'be separate' from regular court business. Pa.Stat.Ann., Tit. 11, § 269-402 (1965), requiring exclusion of the general public from juvenile hearings, applies only to Allegheny County. Both of the instant cases were tried in Philadelphia County.
^3 'The judges of the Philadelphia Juvenile Court exercise varying degrees of control over admission to the courtroom, but the press is generally admitted. * * *' Brief for Appellants 9 n. 9.
^4 N.C.Gen.Stat. § 110-24 (1966), in force at the time of these trials, appears on its face to permit but not require such exclusion, as does identical language in the present statute, N.C.Gen.Stat. § 7A-285 (1969). The North Carolina Supreme Court in the present cases has read these statutes as a legislative determination 'that a public hearing is (not) in the best interest of the youthful offender.' In re Burrus, 275 N.C. 517, 530, 169 S.E.2d 879, 887 (1969).