BAZELON, Circuit Judge.
We here review convictions for assault with a dangerous weapon
The police took appellant into custody on the evening of February 21, 1960, and placed him in a line-up where he was identified by a store clerk as one of two persons who had robbed the store and as the one who had stabbed him. Appellant was taken to the Receiving Home for
At trial, the store owner testified, without objection, that when she identified appellant — which identification was made, as we have said, at the Robbery Squad office and in the presence of police officers — he admitted that he had taken part in the robbery, but he denied that he had stabbed the store clerk. Thereafter, a police detective testified that appellant had made similar statements to him in questioning earlier that day. Court-appointed defense counsel objected to the detective's testimony on the ground "that you cannot use a statement taken from a witness who has been under arrest and not taken to an arraigning magistrate during that interval, from 10:30 that night until 10:30 the following morning [at which time appellant made the admissions to the detective.]" In ruling upon the objection, the court stated: "* * * I would say that the time interval is not unreasonable. * * * But, in any event, the whole rule [Rule 5 and the Mallory doctrine] does not apply to juveniles, so the objection is overruled."
In Pee v. United States, 1959, 107 U.S.App.D.C. 47, 274 F.2d 556, we held that the District Court in an adult proceeding erred in failing to apply the Federal Rules and the Mallory case
The difficulty, however, lies in the practical problem of applying Rule 5 and Mallory to inculpatory statements made by the child before the Juvenile Court waived its jurisdiction.
Pee makes plain that from the moment a child commits an offense, "in effect he is exempt from the criminal law"
It is, of course, because children are, generally speaking, exempt from criminal penalties that safeguards of the criminal law, such as Rule 5 and the exclusionary Mallory rule, have no general application in juvenile proceedings. Aside from the requirements of expressly applicable statutes, the principles of "fundamental fairness" govern in fashioning procedures and remedies to serve the best interests of the child.
In United States v. Dickerson, 1959, 106 U.S.App.D.C. 221, 225, 271 F.2d 487, 491, we strongly intimated that any "departure in practice from that philosophy would require the application of procedural safeguards observed in criminal proceedings." These strict safeguards, however, are wholly inappropriate for the flexible and informal procedures of the Juvenile Court which are essential to its parens patriae function. To avoid impairment of this function, the juvenile proceeding must be insulated from the adult proceeding. This requires that admissions by a juvenile in connection with the non-criminal proceeding be excluded from evidence in the criminal proceeding. We hold this requirement applicable in this case and in all similar cases in the future.
Whether spontaneous statements by a juvenile not in connection with nor in the course of any official interrogation or inquiry would be admissible in the adult proceeding is not before us. Nor are we concerned here with the admissibility in the Juvenile Court proceeding of statements made subsequent to apprehension. Accordingly, we intimate no views on these matters.
Exclusion of appellant's statement does not bar the criminal proceeding itself. And if the prosecutor decides that without the statement he cannot make a successful case, he can ask the District Court to "exercise the powers conferred upon the juvenile court in this Act in conducting and disposing" of the case. See § 11-914, supra, note 3. Or, perhaps, he could request the Juvenile Court to reconsider and rescind its order waiving jurisdiction.
WILBUR K. MILLER, Chief Judge, dissents.
"If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this Act in conducting and disposing of such cases."
"Because of the child's presumed immaturity, special safeguards should be thrown around a police officer's interview with a child in investigating a delinquent act. In certain situations, depending on the age of the child, and the act committed, waiver to criminal court may be a possibility. Moreover, at the time of the interview, it is not known whether or not the court specializing in children's cases will retain jurisdiction over the case if a petition is filed, or will waive its jurisdiction and permit the child to be tried in a criminal court. Therefore, it cannot always be assumed that the police interview will lead only to a noncriminal proceeding.
"Before being interviewed, the child and his parents should be informed of his right to have legal counsel present and to refuse to answer questions if he should so decide. In cases where waiver is possible, he should also be cautioned that if he answers, his answers may be used not only before the specialized court but possibly in a criminal court. Where a child has been questioned alone by a police officer, without having been given an opportunity to secure the presence of his parents, guardian, or counsel, his statement during such interview should be presumed to have been induced either by the child's immaturity or by the idea that they would be used only in the specialized court and they should, therefore, unless the presumption is overcome, be excluded from admission before a criminal court in which the child may be a defendant.
"Whenever possible and especially in the case of young children, no child should be interviewed except in the presence of his parents or guardian. This should always be the policy when a child is being questioned about his participation or when a formal statement concerning the child's participation in the alleged delinquent act is being taken. * * *"
See also Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547, 561-62 (1947), although dealing solely with admissions made in juvenile court itself. Of course, the problem is accentuated in cases, such as this one, where the admissions are extra-judicial, entirely unenvironed by any court protections. Moreover, we do not believe that the question of admissibility of the child's statements as evidence against him in the District Court should vary from case to case depending on criteria which could at best only partially indicate the child's capacity to waive his rights.