clear and convincing evidence for fact finding in neglect cases and for the finding of need for care or rehabilitation at the dispositional hearing in delinquency and need of supervision cases.

It should be noted that neglect cases, in the committee's opinion, need not proceed with the highest or most exacting standard of proof for factfinding, in that the resultant stigma is of a lesser order; in that the proceeding is unmittigatedly oriented to concern with the welfare of the juvenile; and in that any accusatory aura in the neglect proceeding is directed toward the parent, guardian, or custodian named in the petition, and not toward the child.

It was suggested to the committee that, where trial is to a court sitting without a jury, the precise standard of proof is without great significance. It was suggested that no judge would order the confinement of a juvenile except upon a strong factual showing of involvement. The committee's view is to the contrary, however: the clear danger exists that, with the enormous caseload in the Family Division, a judge assigned there might develop some prejudicial predisposition. At the same time, the committee is advised that a juvenile's involvement in fact-the actual commitment by the juvenile of the alleged acts-constitutes a therapeutic prerequisite, without which treatment may be entirely fruitless and even affirmatively harmful. A child cannot be effectively treated, it is suggested, unless he first is convinced that he has acted wrongly.

The Senate District Committee has concluded, again, that, inasmuch as the bill as reported provides a sufficiently high standard of proof for fact finding, the option of trial to a jury is both unnecessary and illadvised. It is readily apparent that trial to a jury is the least expeditious means of factfinding. At the same time, the therapeutic need for expedition is especially great in a system devoted to impressionable juveniles; and expedition is indeed especially important in a system purported oriented in its entirety to therapy or treatment.

The committee likewise was persuaded of the following: (1) that the trial of a child before a jury may frequently prove unnecessarily traumatic, as the child's case, ordinarily in his presence, is discussed openly, formally, in the heat of an adverse setting, and before a panel of strangers, laymen, drawn from the adult community; and (2) that the jury's role in a juvenile proceeding is critically distinct from its role in the trial of an adult.

With regard to this last, it is notable that the jury in a juvenile court simply determines the facts, and all considerations regarding disposition are left to the court alone. No statutory penalty or mode of treatment is prescribed for any delinquent act; and consequently for the jury to find that the juvenile committed the acts alleged is not to assure any, much less any particular, treatment.

In contrast, in adult proceedings the jury traditionally serves a mixed, fact finding and dispositional function-as a buffer of representatives of the adult community standing between the adult defendant and punishment in the name of the community. The jury in criminal proceedings knows that to find that the defendant committed the acts alleged is to assure the imposition of a sentence (within the statutorily provided range of penalties for the offense); the jury traditionally makes, and can and must at least implicitly make, the determination as to whether a penalty ought to be imposed.

The Senate District Committee was persuaded that factfinding in a juvenile court may be better performed by an experienced judge, especially inasmuch as proceedings involving extensive testimony by juvenile parties and witnesses probably require a special, intellectual appreciation of the juvenile perspective as it affects juvenile perception. Or, at least, the committee concluded, there is no reason to suppose that a jury would perform the simple factfinding function more competently than an experienced judge.

Lastly, it should be noted that the original bill S. 2981 (as introduced) likewise eliminates jury trials from juvenile proceedings, as does the HEW guide model. Moreover, approximately four-fifths (4%) of the States provided that all juvenile proceedings shall be conducted before a judge only. And, while the U.S. Supreme Court has not ruled on the question of whether trial to a jury is constitutionally required in juvenile proceedings, the highest courts of at least four States, in cases which postdate the landmark Supreme Court case of In re Gault (371 U.S. 1 (1967)), have specifically denied that such a requirement exists. (It will be recalled that it was In re Gault which most emphatically ruled that certain minimal procedural rights are required in juvenile court proceedings, but which did not specify, as being among those rights, trial by jury or, indeed, even adjudication upon evidence beyond a reasonable doubt.)

DETAILED SUMMARY OF BILL

Section 16-2301 defines the basic terms used throughout the bill (S. 2981). Most of the definitions are pro forma and need no further explanation. Several, however, contain substantive matter of special interest and are discussed herein.

In subsection (3) of section 16-2301, "child" is generall defined to include persons under 18 years of age. However, excluded from the definition of "child" are older juveniles previously found to have committed a serious criminal act and subsequently charged with certain serious felonies. Specifically, excluded from the jurisdiction of the Family Division are those 16- and 17-year-olds who have previously been found delinquent or have been the subject of a consent decree for a delinquent act where a transfer motion for criminal prosecution could have been filed pursuant to subsection (a) of section 11-1104, and who are subsequently charged by the U.S. Attorney with murder, manslaughter, rape, mayhem, arson, kidnapping, burglary, robbery, any assault with intent to commit any of the above offenses, or assault with a dangerous weapon. Thus, a person would not be within the jurisdiction of the Family Division, for example, if at age 15 he stole a car and was found delinquent on a petition alleging unauthorized use of a motor vehicle (D.C. Code, § 22-2204) and if at age 16 he was arrested for robbing a grocery store and was charged by the U.S. Attorney with robbery (D.C. Code, § 2901).

It is anticipated that the police officer who makes an arrest of a person 16 or 17 years of age for one of the serious violent crimes enumerated in subsection 3(A) (ii) will be able to ascertain quickly and easily from the Family Division whether the person arrested has previously been found delinquent or been the subject of a consent decree for a delinquent act which could have resulted in a transfer for

criminal prosecution under subsection (a) of section 11-1104. The Family Division rules should provide procedures whereby an arresting officer can expeditiously learn the juvenile record of the person arrested, so that the officer will know whether to present his case to the U.S. Attorney for criminal prosecution. (See proposed D.C. Code section 11-1105 of S. 2601 relating to the definition of and access to Family Division records.) Where an arresting officer learns that the 16- or 17-year-old has been arrested for a crime enumerated in subsection 3 (A) (ii) of section 16-2301 also falls within subsection 3 (A) (i), he should present the facts of the case to the U.S. Attorney for a prosecutive determination. If the U.S. Attorney declines to charge the individual arrested with an offense enumerated in subsection 3 (A) (ii), the arresting officer may then take the case to the Family Division in order that juvenile proceedings may be instituted.

Subsection (3) of section 16-2301 also provides that adult jurisdiction shall not be affected by a subsequent plea or verdict as to any lesser included offense. For example, a 16- or 17-year-old (one with a recent prior record of delinquency) who is charged with assult with a dangerous weapon (D.C. Code, § 22-502) but convicted by plea or verdict of simple assault is to be sentenced by the adult court. In addition, provision is made that adult jurisdiction shall not be affected by the fact that a 16- or 17-year-old is charged jointly with an offense not enumerated in 3(A) (ii) but based upon the same acts or transaction giving rise to the charge of one of the enumerated offenses. For example, a person charged by the U.S. Attorney with armed robbery (D.C. Code, $$ 2901, 3202) may, in addition, be charged and convicted of carrying a dangerous weapon (D.C. Code, § 3204), and sentenced by the adult court for carrying a dangerous weapon.

Also excluded from the definition of child are those 16 years of age and over, charged with traffic offenses. Inasmuch as the licensing statute treats a youth as an adult at age 16, it is desirable to have the companion enforcement statute and rules conform to this. Specifically included in the definition of "child" are those who are under 21 and charged with an enumerated violent crime or a traffic offense committed before the age of 16, or a delinquent act committed before the age of 18.

Subsections (7), (8), and (9) of section 16-2301 define the circumstances and conduct which bring a child within the jurisdiction of the Family Division. Subsection (7) defines "delinquent act" as an act consisting an offense under the law of the District of Columbia, or of a State if the act occured in the State, or under Federal law. Traffic offenses are not delinquent acts unless committed by an individual under 16 years of age. Subsection (8) defines "persons in need of supervision" to include those habitually and unjustifiably truant, those who have committed offenses commitable only by children, such as violation of the drinking-age laws, and those who have been habitually disobedient to the reasonable and lawful demands of their parents and who are ungovernable. In the case of all alleged to be in need of supervision, as well as delinquent, the child must also be found to be in need of care or rehabilitation. Subsection (9) defines "neglected child" to include a child abandoned or abused by his parent, guardian, or other custodian; a child without proper parental care or control, subsistence, education as required by law, or other care

or control necessary for his physical, mental, or emotional health (where the deprivation is not due to lack of financial means); a child whose parent, guardian, or other custodian is unable to discharge his responsibilities to the child because of incarceration, hospitalization. or other physical or mental incapacity; and a child who has been placed for care or adoption in violation of law. A child shall not be deemed neglected, however, by reason solely of being treated by an accredited religious practioner.

Subsections (20), (21), and (22) of section 16-2301 define “guardianship of the person of a minor," "legal custody," and residual parental rights and responsibilities." Although these terms are used very little in the bill, they relate to important concepts referred to frequently by the courts but undefined in existing law.

Section 16-2302 guarantees to a child alleged to be delinquent or in need of supervision the right to retained or appointed counsel at all critical stages of Family Division proceedings. It also guarantees retained or appointed counsel to the parent, guardian, or custodian of a child alleged to be neglected and permits appointment of separate counsel for the child where appropriate. This includes the right to appointed counsel where the child and his parent "are financially unable to obtain adequate representation." This standard is the standard of need utilized in the Criminal Justice Act (18 U.S.C. 3006A) and the District of Columbia Public Defender Act (S. 2602). This section also permits the appointment of counsel for the child over the objection of the child, his parents, guardian or other custodian. It is contemplated by this section that the rules of the Superior Court will set forth in detail the specific procedure governing the appointment of counsel.

The District of Columbia Code at present is silent with respect to the right to counsel in juvenile proceedings, but the U.S. Supreme Court in In re Gault, 387 U.S. 1 (1967), held that there is a constitutional right to retained or appointed counsel in delinquency proceedings and earlier District of Columbia case law had reached a similar result. The proposed section guarantees representation at "all critical stages" of the proceedings, the concept used in Miranda v. Arizona, 384 U.S. 436 (1966). It defines what is a critical stage only insofar as it is necessary to insure that the right exists at least as early as the time a child admits or denies the allegations in the petition. Further detail is left to the courts, and the statute is cast in terms which will absorb future court decisions without necessitating statuory change.

Similarly, the proposed section does not attempt to resolve the questions whether a child of any age or a child of certain age may waive representation by counsel or whether a parent may waive representation for a child at any time or in certain circumstances. Such questions have not been finally resolved by the courts and may be resolved on an ad hoc as well as an absolute basis. Again it was thought preferable to cast the statutory language in terms which could absorb the case law as it develops.

The proposal also provides for a right of counsel in neglect cases but it is primarily a right of the parent. In such cases it is the parent's conduct, not the child's, which is called into question and it is the parent who may lose his parental rights over the child, or in some cases, be subjected to prosecution. In light of this, it is the parent who is primarily in need of representation.

At the same time, it is recognized that the child may have interests adverse to the parent in particular cases and that those interests may require separate representation. Accordingly, the court is authorized to appoint separate counsel for the child in accordance with section 16-918 (as amended by the Court Reorganization Act S. 2601).

Lastly, it was the judgment of the committee that significant expedition in juvenile proceedings requires that counsel be available to assist a child at any stage. Short of mandating the assistance of counsel-in the likely absence at present of the means for providing same-the committee firmly anticipates that the new Superior Court or Family Division will shortly develop a system of assistance like the New York law guardian system for juvenile proceedings.

Section 16-2303 describes the procedure by which complaints concerning persons within the jurisdiction of the family division are to be reviewed and the decision whether or not to file a petition initiating judicial action is to be made. It also provides a time limitation for the filing of petitions and makes the government of the District of Columbia a party to all proceedings in the family division under this subchapter.

This section specifically provides that all complaints shall initially be referred to the Director of Social Services. He must review the complaints in light of the interest of the child and the public, applying criteria to be established by Superior Court rule, and will recommend to the Corporation Counsel whether a petition of delinquency, need of supervision, or neglect should be filed. If he does not recommend the filing of a petition, the Director shall notify the complaining party that he has a right to ask the Corporation Counsel to review that decision.

If a petition is to be filed, it may be signed by any person having knowledge of the facts (such as an arresting officer) or by one who is informed of the facts and believes they are true (such as a social service officer). However, only the Director of Social Services, a police officer, school official, public or private social service worker or public or private child care agency may sign a petition alleging need of supervision. A parent may not sign such a petition.

All petitions shall be verified and may be verified upon information and belief where the complaining party does not have direct personal knowledge of the facts.

The role of the Corporation Counsel is expanded to include not only the decision of whether to file a petition but the actual preparation of the petition. He is specifically made responsible for the preparation of all petitions after making an inquiry into the facts and a determination of whether a delinquency, in need of supervision or neglect petition shall be filed. He is also responsible on request of the complaining party for reviewing delinquency and neglect complaints for which the Director of Social Services has refused to recommend that a petition be filed. The Corporation Counsel's decision on whether to file a petition alleging delinquency or neglect is final. In need of supervision cases, however, the decision of the Director of Social Services not to recommend filing may not be overturned; in need of supervision cases, social policy, in the Committee's view, is paramount.

The petition is to be a concise document which gives a specific notice to persons involved of the charges alleged. It is to set forth the facts