Swisher v. Brady

Mr. Justice Marshall,

with whom Mr. Justice Brennan and Mr. Justice Powell join, dissenting.

Appellees are a class of juveniles who, following adjudicatory hearings on charges of criminal conduct, were found nondelin-quent by a “master.” Because the State has labeled the master’s findings as “proposed,” the Court today allows the State in effect to appeal those findings to a “judge,” who is empowered to reverse the master’s findings and convict the juvenile. The Court’s holding is at odds with the constitutional prohibition against double jeopardy, made applicable to the States by the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), and specifically held to apply to juvenile proceedings in Breed v. Jones, 421 U. S. 519 (1975).

The majority does not purport to retreat from our holding in Breed. Yet the Court reaches a result that it would not countenance were this a criminal prosecution against an adult, for the juvenile defendants here are placed twice in jeopardy just as surely as if an adult defendant, after acquittal in a trial court, were convicted on appeal. In addition to violating the Double Jeopardy Clause, Maryland’s scheme raises serious due process questions because the judge making the final adjudication of guilt has not heard the evidence and may reverse the master’s findings of nondelinquency based on *220the judge’s review of a cold record. For these reasons, I dissent.

I

While the first inquiry in any double jeopardy case must be whether jeopardy has attached, see Crist v. Bretz, 437 U. S. 28, 32-33 (1978); Serfass v. United States, 420 U. S. 377, 388 (1975), I agree with the Court that jeopardy does attach at the master’s hearing, ante, at 215 n. 12. In Breed v. Jones, supra, we held that jeopardy attaches “at a proceeding whose object is to determine whether [a juvenile] has committed acts that violate a criminal law.” 421 U. S., at 529. The master’s hearing clearly has this as an object. Under Maryland law, the master is empowered to conduct a full “adjudicatory hearing,” in order “to determine whether the allegations in the petition .. . are true.” Rule 914 (a); Md. Cts. & Jud. Proc. Code Ann. § 3-801 (b) (Supp. 1977); see Rules 911, 914 (f).1 And it is at this hearing that the State intro*221duces the evidence on which it seeks to have the determination of guilt or innocence rest. See Serfass v. United States, supra, at 389. See also Crist v. Bretz, supra, at 51-52 (Powell, J., dissenting).

My disagreement with the Court lies in its misapplication of well-settled double jeopardy rules applicable once jeopardy has attached. As the Court itself recognizes, ante, at 214, the Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal,” Arizona v. Washington, 434 U. S. 497, 503 (1978). Just as unequivocally, it prevents the prosecution from seeking review or reversal of a judgment of acquittal on appeal. Kepner v. United States, 195 U. S. 100 (1904). And even where the first trial does not end in a final judgment, the “defendant’s valued right to have his trial completed by a particular tribunal,” absent a “ ‘manifest necessity’ ” for terminating the first proceedings, is protected by this Clause. Wade v. Hunter, 336 U. S. 684, 689-690 (1949), quoting United States v. Perez, 9 Wheat. 579, 580 (1824); see ante, at 214-215.

These rules are designed to serve the underlying purposes of the Double Jeopardy Clause, the most fundamental of which is to protect an accused from the governmental harassment and oppression that can so easily arise from the massed power of the State in confrontation with an individual. See Green v. United States, 355 U. S. 184, 187 (1957). As the Court recognizes, the Double Jeopardy Clause serves to preclude the State from having “ ‘another opportunity to supply evidence which it failed to muster in the first proceeding’ ” ; to avoid the risk that a defendant, though in fact innocent, may be convicted by a successive decisionmaker; and to prevent the State from unfairly subjecting a defendant “to the embarrassment, expense, and ordeal of a second trial.” Ante, *222at 216. It is against these touchstones of law that the Maryland scheme must be evaluated.

A

After rejecting the State's chief argument — that jeopardy does not attach in hearings before a master — the Court reaches its result primarily by ignoring the undisputed fact that state law commits to the master a factfinding function. Admittedly, the Maryland proceedings are somewhat difficult to classify into the customary pigeonholes of double jeopardy analysis, but that is precisely because the State has engaged in a novel redefinition of trial and appellate functions in a quasi-criminal proceeding, intentionally designed to avoid the constraints of the Double Jeopardy Clause.2 While a State is, of course, free to designate a “master,” a “judge,” or some other officer to conduct juvenile adjudicatory hearings, our Constitution is not so fragile an instrument that its substantive prohibitions may be evaded by formal designations that fail to correspond with the actual functions performed.

Viewing the master and judge in terms of their relative functions, I think the appropriate analogy is between a trial judge and an appellate court with unusually broad powers of review. In the cases before us, the masters had made unequivocal findings, on the facts, that the State had not proved its case, and the State sought to have the judge overturn these findings.3 By ignoring these functional considerations, *223the Court permits the State to circumvent the protections of the Double Jeopardy Clause by a mere change in the formal definitions of finality. The Court thus makes the linchpin of its holding a formalism that belies our insistence that “courts eschew . . . 'label [s]-of-convenience . . . attached to juvenile proceedings In re Gault, [387 U. S. 1,] 50 [(1967)], and that the juvenile process ... be candidly appraised/ [id.,} at 21.” Breed v. Jones, 421 U. S., at 529.

The Court describes the Maryland system as one permitting “the presentation and recording of evidence in the absence of the only officer authorized by the state constitution . . . and by statute ... to serve as the factfinder and judge.” Ante, at 212. It is inaccurate, however, to say that only the judge is “authorized” under Maryland law to act as a factfinder.4 The master does not simply act as a referee at the hearing, deciding evidentiary questions and creating a record placed before the judge. Rather, Rule 911 directs that, at the end of the disposition hearing (which follows the adjudicatory hearing), the master “transmit to the judge the entire file in the case, together with a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition.” Rule 911 (b).5

*224That Maryland contemplates an actual factfinding function for the master is emphasized by the fact that neither the Rule nor the statute requires the “judge” to read the entire record, listen to the tape recording of the adjudicatory hearing, or otherwise expose himself to the full factual record as it was presented to the master. Indeed, the Rule expressly recognizes that the judge may enter his order “based on” the master’s findings. Rule 911 (d). The master himself thus serves as a factfinder of first instance; while his findings are only “proposed,” they may be accepted by the judge without an independent review of the entire record.

*225(2)

In Kepner v. United States, 195 U. S. 100 (1904), we held that the Double Jeopardy Clause prohibited an appellate court in the Philippines from reversing a verdict of acquittal rendered by the trial court in a bench trial and entering a verdict of guilty.6 The Government had argued that, under controlling Spanish law, “[t]he original trial is a unitary and continuous thing, and is not complete until the appellate court has pronounced judgment.” Brief for United States, O. T. 1903, No. 244, p. 39. This Court, however, held that American constitutional law governed and that the Double Jeopardy Clause prohibited the Government from appealing a judgment of acquittal entered by the first trier of facts. In so holding, the Court rejected Mr. Justice Holmes’ “continuing jeopardy” argument, 195 U. S., at 134-137 (dissenting opinion), an argument that we have consistently refused to adopt, see, e. g., United States v. Wilson, 420 U. S. 332, 352 (1975), and to which the State’s position here bears an uncomfortable resemblance.7

*226There are, of course, differences between Kepner and the instant case. In Kepner the court of first instance apparently had authority to enter an adjudication that would be final absent an appeal by either party, whereas here the masters do not have power to enter a final order of acquittal. But as we have repeatedly emphasized, an “acquittal” is not necessarily determined by the form of the order. United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977); see United States v. Wilson, supra, at 336; United States v. Sisson, 399 U. S. 267, 270 (1970). As the Kepner Court noted in support of its holding that a bench acquittal could not be appealed, a jury verdict of acquittal, even when not followed by a formal judgment of the trial court, bars further proceedings under the Double Jeopardy Clause. 195 U. S., at 130. Here, while the master does not formally make a final adjudication, in all other respects his proposed finding of nondelinquency is fully equivalent to an acquittal: after a plenary adjudicatory hearing, he makes “a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., supra, at 571. And the State's exception to the master’s finding of nondelinquency engenders the same anxiety and burden as would a State’s appeal from an adult court’s verdict of acquittal.

The Court’s rationale allows States to avoid the Kepner holding by the simple expedient of changing the definitions of finality without changing the functions performed by judges at different levels of decision. The decision today might well be read to hold that the Double Jeopardy Clause is no bar to structuring a juvenile justice system or, for that matter, an *227adult criminal justice system so as to have several layers of adjudication, none of which is final until the State has exhausted its last appeal.8 This proliferation of levels at which a defendant — juvenile or adult — must defend himself against an adjudication of guilt is precisely the kind of evil that the Double Jeopardy Clause was designed to forbid. Yet under the Court's rationale, this is seemingly permissible so long as the State takes care to define the lower levels of decision-making as only “proposed” or “tentative” in nature, thereby commingling traditional trial and appellate functions.

B

Even if the master’s findings are not regarded as an acquittal, the Double Jeopardy Clause does more than simply protect acquittals from review on direct appeal. It also protects the defendant’s right to go to judgment before a “particular tribunal” once jeopardy has attached, absent a “ ‘manifest necessity’ ” justifying termination of the first proceeding. Wade v. Hunter, 336 U. S., at 689-690. This rule is designed in part to ensure that the government not be able to bolster its case by additional evidence or arguments, once it believes that its evidence has not persuaded the first tribunal. See Arizona v. Washington, 434 U. S., at 503-505, and n. 14. But *228the Maryland system is structured so as to give the State precisely this type of proscribed opportunity, where it disagrees with the favorable rulings of the first trier of fact.

As recognized by the Court, jeopardy attaches at the master’s hearing. This hearing is a formal, adjudicatory proceeding at which the State’s witnesses testify and are cross-examined; the juvenile may present evidence in his own defense; and the juvenile is entitled to counsel and to remain silent. Presentation of evidence at that proceeding is keyed to the reactions and attitudes of the presiding master, who acts, for purposes of the adjudicatory hearing, as the “particular tribunal.” A juvenile who has had such a hearing may justifiably expect that, when the master who has heard all this evidence announces a finding in his favor, it will be final. But a juvenile tried before a master in Maryland is never, as a matter of law, entitled to have his trial “completed” before the master, since his recommendations must be confirmed by the judge and may be ignored by him.

Thus, endemic to the Maryland system is a kind of interrupted proceeding which ensures that the defendant cannot get the benefit of the first trier of fact’s reaction to the evidence. The system thereby poses a substantial risk that innocent defendants may be found guilty, since it allows the State a second opportunity to persuade a decisionmaker of the juvenile’s guilt, after the first trier of fact has concluded that the State has not proved its case. See Ashe v. Swenson, 397 U. S. 436, 446 (1970). Unless justified by a “manifest necessity” — not present here — the Double Jeopardy Clause condemns such a system. As we wrote in Green v. United States, 355 U. S., at 187-188, the “underlying idea” of the Double Jeopardy Clause

“is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him *229to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

For these reasons, I conclude that the Maryland Rule, insofar as it permits a judge to review and set aside a master’s findings favorable to the defendant on the facts of the case, violates the Double Jeopardy Clause.

II

As the majority accurately states, the only issue raised in the complaints or focused upon in the parties’ briefs was that of double jeopardy. It is argued by amicus, however, that the Maryland system, even if it were found to avoid double jeopardy problems, violates the Due Process Clause by permitting ultimate factfinding by a judge who did not actually conduct the trial.9 The Court does not reach this issue, apparently believing that it is not properly presented here.10 *230See ante, at 212, 213, 216 n. 14, 219. It is thus important to emphasize that the Maryland system and ones like it have not been held constitutional today; the Court’s only holding is that such systems are not unconstitutional under the Double Jeopardy Clause. It is entirely open to this Court, and lower courts, to find in another case that a system like that in Maryland violates the Due Process Clause.

In In re Winship, 397 U. S. 358 (1970), we held that a juvenile accused of a crime may be convicted only upon proof beyond a reasonable doubt, even if he is prosecuted in a juvenile court. The rationale of Winship suggests that the Due Process Clause requires the most reliable procedures to be used in making the reasonable-doubt determination in juvenile proceedings. As we have repeatedly emphasized:

“ 'To experienced lawyers it is commonplace that the outcome of a lawsuit — and hence the vindication of legal rights — depends more often on how the factfinder appraises the facts than on a disputed construction of a statute .... Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied.’ ” Wingo v. Wedding, 418 U. S. 461, 474 (1974), quoting Speiser v. Randall, 357 U. S. 513, 520 (1958).

Over 30 years ago, in Holiday v. Johnston, 313 U. S. 342 (1941), we recognized the importance to a reliable factfinding process of hearing live witnesses. The issue there was whether, on a federal habeas corpus petition, a District Judge could utilize a United States Commissioner to hold the evidentiary hearing and make recommended findings of fact and conclusions of law. Although our holding that the prisoner had a right to testify and present his evidence before a judge was a statutory one, our reasoning went to the fundamental nature *231of the kind of factfinding on which many judicial determinations must rest:

“One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. ... We cannot say that an appraisal of the truth of the prisoner’s oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge’s own exercise of the function of the trier of the facts.” Id., at 352.

Four Terms ago, in Wingo v. Wedding, supra, we adhered to this view, holding that the successor habeas corpus statute also required the district judge personally to conduct evidentiary hearings in habeas corpus cases. We not only disapproved the practice of referring evidentiary hearings to masters, but also held that the judge’s listening to an electronic recording of the testimony was no substitute for his personally hearing and observing the witnesses to evaluate their credibility.

These decisions arose in the context of habeas corpus proceedings, where the prisoner has the burden of demonstrating that he is being held in violation of the Constitution. In a criminal proceeding, where the issue posed is the threshold one of whether a defendant has been proved guilty of a crime beyond a reasonable doubt, the same considerations surely have at least as much force. Indeed, the need for achieving the most reliable determinations of evidentiary facts, and particularly of credibility, exists a fortiori where the factual determinations must be made beyond a reasonable doubt.

As the Maryland courts have held, In re Brown, 13 Md. App. 625, 632-633, 284 A. 2d 441, 444-445 (1971), and as is self-evident from the structure of Rule 911, the master’s function at the hearing is, in large part, to assess the credibility of the witnesses. That function simply cannot be replicated by the “judge,” acting in his essentially appellate capacity reviewing the record; as amicus cogently notes, “[t]rials-by-transcript can never be more than trials by substantial evi*232dence.” 11 It would thus appear that the Maryland system of splitting the hearing of evidence from the final adjudication violates the Due Process Clause.

It is no answer to this problem that the juvenile defendant may elect to submit additional material to the judge when the State takes an exception to the master’s finding. In the first place, the State apparently must agree to the supplementation of the record, and can thus stymie a defendant’s efforts to persuade the judge that he is not guilty. See Rule 911 (c). But more importantly, when a juvenile seeks to reopen the proceeding before the judge — in order to avoid having a case decided against him on the basis of a cold record in violation of the Due Process Clause — he is being subjected to a second trial of the sort clearly prohibited by the Double Jeopardy Clause. The constitutionality of forcing a juvenile to such a choice between fundamental rights is questionable at best. Cf. United States v. Jackson, 390 U. S. 570 (1968); North Carolina v. Pearce, 395 U. S. 711 (1969).

Ill

That the current Maryland scheme cannot pass constitutional muster does not necessarily mean that the idea of using masters, or some other class of specially trained or selected personnel for juvenile court adjudications, is either unconstitutional or unwise. Using masters to adjudicate the more common charges may save scarce judicial resources for the more difficult cases. It may also aid the ultimate goals of a juvenile justice system by ensuring that the decisionmakers have some familiarity with the special problems of juvenile dispositions. But the State must find a way of implementing this concept without jeopardizing the constitutional rights of juveniles. Whether it does so by endowing masters with the power to make final adjudications or by some other means, *233matters not. 'What does matter is that, absent compelling circumstances not present here, the system of juvenile justice in this country must not be permitted to fall below the minimum constitutional standards set for adult criminal proceedings.

Accordingly, I dissent.

Thus, unlike a preliminary hearing (to which the State analogizes a master’s hearing), where the inquiry is one of probable cause, the adjudicatory hearing conducted by the master is the beginning of the unitary process designated by the State of Maryland to determine the truth of the charges. The Maryland Court of Special Appeals has rejected the State’s argument that masters’ hearings are not adjudicatory:

“We think it within the clear contemplation of the Maryland law that the 'adjudicatory hearing’ is that phase of the total proceeding whereto witnesses are summonsed [sic]; whereat they are sworn, confronted with the alleged delinquent, examined and cross-examined; whereat their demeanor is observed, their credibility assessed and their testimony . . . transcribed by a court reporter; whereat the alleged delinquent is represented by counsel and where he enjoys the right to remain silent . . . ; whereat the State’s Attorney marshals and presents the [State’s] evidence . . . ; and whereat the presiding judge or master makes and announces his finding ....

“Conversely, we think it . . . equally clear . . . that the 'adjudicatory hearing’ is not that phase of the proceeding, frequently conducted ex parte and ... in camera, whereat the supervising judge ratifies, modifies or rejects the finding and recommendations of the master.” In re Brown, 13 Md. App. 625, 632-633, 284 A. 2d 441, 444-445 (1971).

Although the Brown opinion was rendered prior to Maryland’s revision of

In response to an earlier decision holding that a second hearing before the judge, when the State excepted to the master’s findings of non-delinquency, violated the Double Jeopardy Clause, Aldridge v. Dean, 395 F. Supp. 1161 (Md. 1975), the State of Maryland modified its procedures to preclude a new hearing before the juvenile judge on the State’s exceptions, unless both “parties” consent. See ante, at 210-211, 212. Following passage of these amended rules, the State moved to dismiss the instant proceeding as moot; the motion was denied.

For example, in one instance, the State’s case rested on the identification testimony of the victim of a bicycle theft. At the close of the *223evidence, the master announced that, because he was not persuaded beyond a reasonable doubt of the accuracy of the witness’ identification, especially since it was uncorroborated, he found the defendant not guilty. In re McLean, summarized in 8 Record, Petitioner’s Exhibit No. 49, p. 16. On the State’s exception, the juvenile judge convicted the defendant.

It is not disputed here that, under the Maryland State Constitution, the State may validly delegate to masters authority to make proposed findings of fact under Rule 911.

We therefore need not rely on appellees’ statistical proof, convincing as it may be, to conclude that in Maryland masters are supposed to find facts. Appellees’ evidence, however, supports this interpretation of Maryland law.

In Baltimore City in 1975 and 1976, there were seven masters and one *224Juvenile Court Judge. The District Court found that, except when the State filed an exception, all of the masters’ recommended findings of non-delinquency had been approved by the judge. 436 F. Supp. 1361, 1364 (Md. 1977) (three-judge court).

Moreover, the first judge presented with appellees’ double jeopardy claim — the state trial judge serving as the only Juvenile Court Judge in Baltimore from 1967-1975 — agreed with the juveniles that permitting the State to take exceptions violated the Double Jeopardy Clause. His conclusion rested in part on his perception that

“it is impossible for the Judge . . . , who also carries a full docket of cases himself, to exercise any independent, meaningful judgment in the overwhelming majority of the many thousands of [masters’] orders put before him each year .... With this being the case it is difficult to see how realistically a Master can be called only an adviser .... [T]he Master conducts, for all intents and purposes, full blown and complete proceedings through the adjudicatory and dispositional phases and ... as a practical matter he imposes sanctions and can effectively deprive youngsters of their freedom.” In re Anderson, No. 158187 (Cir. Ct. Balt. City, Juv. Div., Aug. 1, 1973), p. 39.

The Juvenile Court Judge’s decision was ultimately reversed on appeal. In re Anderson, 272 Md. 85, 321 A. 2d 516 (1974).

A report of the State Commission on Juvenile Justice in January 1977, after spending 18 months studying the Maryland juvenile courts, reached the same conclusion: “[W]ithout bearing legal responsibility for his decisions, the Master’s recommended decisions become, in effect, final orders of the Court.” Final Report of the Commission on Juvenile Justice to the Governor and General Assembly of Maryland 13 (1977).

In Kepner, the Court was technically construing an Act of Congress extending certain procedural protections to criminal trials conducted in the Philippines, which was a United States possession. However, the Court made clear that it construed the statutory language to incorporate the constitutional principles of double jeopardy, see 195 U. S., at 124, and its decision is thus properly regarded by the Court today as a constitutional one, see ante, at 217 n. 15.

The Court explained the Spanish system of jeopardy, which the Government urged as applicable, as follows:

“Under that system of law ... a person was not ... in jeopardy in the legal sense until there had been a final judgment in the court of last resort. The lower courts were deemed examining courts, having preliminary jurisdiction, and the accused was not finally convicted or acquitted until the case had been passed upon in the . . . Supreme Court .... The trial was regarded as one continuous proceeding, and the protection given was against a second conviction after this final trial had been concluded in due form of law.” 195 U. S., at 121.

The Court went on to make plain that this definition of finality of judg*226ments of acquittal was inconsistent with our Double Jeopardy Clause. Thus it wrote that “[t]he court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense, if Congress used the terms as construed by this court in passing upon their meaning.” Id., at 133.

Thus, for example, a State might provide that in all bench trials, a judgment of acquittal does not become “final” for a certain amount of time in which an appellate court may review it. While this is an unlikely eventuality, it points up the fallacy in the Court’s reasoning.

Fortunately, the damage done by the Court’s holding today is limited in its application by the Sixth Amendment right to a jury trial. Not only would it offend the Double Jeopardy Clause for a jury’s verdict of acquittal to be set aside (whether or not a judgment were entered on the verdict), see United States v. Sanges, 144 U. S. 310 (1892), cited in Kepner v. United States, 195 U. S., at 130, but it would also dilute the constitutional right to a jury trial in criminal cases. The jury trial right has been held inapplicable to juvenile proceedings, however. See McKeiver v. Pennsylvania, 403 U. S. 528 (1971).

Brief of State Public Defender of California as Amicus Curiae.

Although the Court does not reach this issue, cf. Dandridge v. Williams, 397 U. S. 471, 475-476, n. 6 (1970) (when “attention has been focused on other issues,” remand may be appropriate), I believe it would be within its power to do so. See Helvering v. Gowran, 302 U. S. 238, 245 (1937) (Brandéis, J.). Affirming the judgment below on this ground would not have the effect of expanding the relief granted: an injunction against the State’s taking of exceptions. See United States v. New York Telephone Co., 434 U. S. 159, 166 n. 8 (1977). While the due process claim was not raised in appellees’ complaints, it was argued in substance to the District Court in opposition to appellants’ motion to dismiss the complaint. See Plaintiffs’ Memorandum in Response to Motion to Dismiss 9 n. 29, 2 Record Exhibit 19; Plaintiffs’ Memorandum in Opposition to Motion to Dismiss, 2 Record Exhibit 29. Moreover, appellees’ brief here makes the following argument: “It is only logical to assume that if a case is tried before enough judicial officers, one of them will eventually conclude that the defendant is guilty beyond a reasonable doubt. . . . [S]uch a process would emasculate this Court’s decision in In re Winship, 397 U. S. 358 (1970).” Brief for Appellees 86. While this is not identical to the due process argument urged by amicus, it illustrates the intimate *230relationship between the double jeopardy and due process problems inherent in the Maryland scheme.

Brief for State Public Defender of California as Amicus Curiae 26.