Rogers v. United States

ROGERS, Chief Judge,

with whom NEWMAN and FERREN, Associate Judges, and MACK, Associate Judge, Retired, join, concurring in part and dissenting in part:

I join the majority opinion adopting Federal Rule 405(a) permitting lay character witnesses to testify as to their opinion of a defendant as well as their knowledge of the defendant’s reputation. [Majority opinion at 74.]

I am unable to join the majority opinion holding that a reputation character witness may be cross examined by the government concerning the witness’ knowledge of a defendant’s juvenile arrests. To have a consistent body of law means that the court is limited in the extent to which it can deviate from the legislative policy that juvenile proceedings are generally confidential. D.C.Code §§ 16-2331, 16-2335 (1989 Repl.). That policy, made by Congress in this instance, was made with no less recognition than is suggested in the majority opinion that there is an informal transmission of information among groups with whom a person lives, works or goes to school. [Majority op. at 75] The longstanding policy choice by Congress to treat juvenile proceedings differently than adult criminal proceedings and to maintain so far as possible the confidentiality of such proceedings rather was designed to assure to a category of persons that matters arising out of their actions while under a certain age would not adversely affect them in the *80future. The courts in this jurisdiction have long ruled in accordance with that policy in recognition of the fact that juvenile proceedings are “founded upon strong social policy, and their aim is amnesty and oblivion for the transgressions of youthful offenders.” Thomas v. United States, 74 App.D.C. 167, 170, 121 F.2d 905, 908 (1941). Referring to the time prior to the reorganization of the District of Columbia Courts by Congress in 1970,1 the United States Court of Appeals for the District of Columbia Circuit wrote

The primary function of juvenile courts, properly considered, is not conviction or punishment for crime, but crime prevention and delinquency rehabilitation. It would be a serious breach of public faith, therefore, to permit these informal and presumably beneficent procedures to become the basis for criminal records, which could be used to harass a person throughout his life. There is no more reason for permitting their use for such a purpose, than there would be to pry into school records or to compile family and community recollections concerning youthful indiscretions of persons who were fortunate enough to avoid the juvenile court.

Id. at 170-71, 121 F.2d at 908-09.

Although juvenile procedures are no longer as informal as described in Thomas, supra, App.D.C. at 169 n. 12, 121 F.2d at 907 n. 12, Congress did not retreat from its previous position that an adjudication not subject the youthful offender to the disabilities that arise as a result of a criminal conviction and proceedings involving the offender be confidential. See D. C. Code §§ 16-2316(e), 16-2318 (1989 Repl.). In amending the statute relating to proceedings involving juvenile delinquents and other youthful persons as part of the 1970 Court Reform Act, Congress maintained the practice of non public hearings and in addition made limited access to juvenile records greater than under prior law by providing, for example, that law enforcement and fingerprint records and files are confidential, D.C.Code §§ 16-2333, 16-2334 (1989 Repl.), and that juvenile proceeding records can be sealed against even limited access.2 D.C.Code § 16-2335 (1989 Repl.).

For this reason and for the reasons set forth in Judge Newman’s dissenting opinion in the division opinion, Rogers v. United States, 534 A.2d 928, 933-36 (D.C.1987), it is readily understandable that the practice at issue today has not previously been approved. As the court continues to clip away at the Congressional policy and purpose, the problems of having a consistent body of law are obvious. Compare McAdoo v. United States, 515 A.2d 412 (D.C. 1986) (juvenile adjudications) with Devore v. United States, 530 A.2d 1173 (D.C.1987) (juvenile’s wrongful acts). If, as the majority opinion implies [Majority opinion at 75, 76 n. 10 & 77], the legislative policy of confidentiality is so far removed from the reality of community life and does not serve important societal interests, then the remedy lies within the legislature and not this court.

Accordingly, I respectfully dissent from Part II of the majority opinion and I concur in the separate opinion by Judge NEWMAN.

. The District of Columbia Court Reform and Criminal Procedure Act of 1970, Act of July 29, 1970, Pub.L. No. 91-358, 84 Stat. 473 (1970 Court Reform Act), abolished the D.C. Juvenile Court, D.C.Code §§ 11-1501, 11-1589 (1967), and transferred matters within its jurisdiction to the Family Division of the new Superior Court of the District of Columbia. D.C.Code §§ 11-902, 11-1101 (1989 Repl.).

. See Lawton, Juvenile Proceedings-The New Look, 20 Am.U.L.Rev. 342, 366-71 (1970-71). See also Darling, Youthful Offenders and Neglected Children Under the D.C. Crime Act, 20 Am.U.L. Rev. 373, 427-28 (1970-71).