dissenting.
I agree that the juvenile court here made no record that child posed an immediate or serious risk of dangerous or disruptive behavior, and therefore erred in not ordering his leg irons removed. However, because I disagree that the error was harmless beyond a reasonable doubt, I respectfully dissent.
In assessing the effect of the juvenile court’s error, the majority focuses on the possible types of prejudice set out in State v. Kessler, 57 Or App 469, 474, 645 P2d 1070 (1982) (risk of impinging on presumption of innocence and the dignity of judicial proceedings, as well as inhibiting consultation with counsel and decision whether to testify). The majority holds the error harmless beyond a reasonable doubt because it finds that child’s appearance in leg irons did not prejudice the juvenile court as trier of fact, and that child did, in fact, testify and consult with counsel. 138 Or App at 148.1 disagree with the majority’s harmless error analysis for two reasons.
First, in addition to the Kessler factors, I would also consider the potentially prejudicial effect on a child’s ability to testify, because shackling is likely to be more psychologically jarring for children than adults.1 Wearing leg irons may seriously undermine a child’s confidence in telling his side of the story, which would adversely affect the credibility determinations of even the most experienced juvenile judge.
Second, central to the majority’s harmless error analysis is child’s failure to demonstrate how the shackling prejudiced him. Specifically, the majority notes that child’s counsel ‘ ‘made no record either during or after the proceeding as to any prejudicial impact on the juvenile court as a trier of fact.” 138 Or App at 148. Because I believe that unnecessarily shackling children in a delinquency hearing is presumptively prejudicial, I would hold that child was not required to make a record of prejudice.
*150This is no more than we grant adult defendants who are shackled without cause. In both Kessler and State v. Bird, 59 Or App 74, 650 P2d 949, rev den 294 Or 78 (1982), the state argued that the error was harmless because the defendants failed to prove how they were prejudiced by their unwarranted physical restraints. We held that
“the prejudice to a defendant shackled or otherwise physically restrained during trial is manifest and need not be proven in an individual case. By showing that he was required to wear leg shackles, without a showing of substantial necessity, defendant has demonstrated a violation of his due process right to a fair trial.” Kessler, 57 Or App at 474-75; Bird, 59 Or App at 78 (quoting Kessler) (emphasis supplied).2
Similarly, in Duckett v. Godinez/McKay, 67 F3d 734 (9th Cir 1995), the Ninth Circuit refused to place the burden of proving prejudice on an adult habeas petitioner who had been shackled without compelling reasons during his sentencing hearing. Id. at 749. Although the petitioner had presented no evidence of prejudice at the trial level, the court declined to perform a harmless error analysis because “[t]he risk of doubt * * * is on the state.” Id.;3 but see State v. Long, 195 Or 81, 244 P2d 1033 (1952) (handcuffing the defendant during voir dire did not require reversal where potential jurors may not have seen handcuffs, defense counsel neither questioned or objected to any juror on that basis and where “there was reasonable grounds for precautions which were taken”)4
*151If we do not require criminal defendants to demonstrate prejudice from unwarranted shackling, we cannot place that burden on juveniles. Physically restraining children without the proper findings not only violates the protections afforded adults, it also thwarts the historical purpose of Oregon’s juvenile justice system.
Since 1907, the focus of this state’s juvenile proceedings has been on “rehabilitation” of delinquents and not on “crime control.” State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 567, 857 P2d 842 (1993). The purpose of a delinquency hearing is not to punish or convict, but rather to salvage, guide, and protect delinquent youths as wards of the court. Id. at 568. The role of a juvenile judge is fundamentally different from that of a judge in an adult criminal prosecution. The ultimate question in juvenile court is not guilt or innocence, but rather “what kind of care, custody, and control will best meet the needs of the child.” State v. Stewart, 123 Or App 147, 155, 859 P2d 545 (1993) (De Muniz, J., dissenting), adhered to as modified 126 Or App 456, 868 P2d 794 (1994), aff'd 321 Or 1, 892 P2d 1013 (1995).
Leaving child in leg irons without finding that he is dangerous, disruptive or prone to escape is so far removed from the “best interest of the child” that prejudice is presumed. The burden is then on the state, as in Kessler, Bird and Duckett, to prove harmless error by demonstrating a lack of prejudice.
I am aware that the recently passed Juvenile Justice Task Force Bill (SB 1) replaces the ‘ ‘best interest of the child’ ’ standard with the stated purpose of protecting the public, reducing juvenile delinquency and providing fair and impartial procedures for dealing with delinquent conduct.5 Or Laws 1995, ch 422, § la(l). However, SB 1 becomes operative January 1, 1996. It was not the law at the time of child’s hearing, and thus is not dispositive to this appeal. Furthermore, even if SB 1 effectively overrules Reynolds and makes delinquency hearings more akin to criminal prosecutions, that is all the more reason not to deny juveniles the protections afforded adult defendants.
*152I also acknowledge that the majority would be correct in finding harmless error if there was “overwhelming evidence” that child committed an act, which if done by an adult, would constitute sex abuse in the third degree. See State v. Schroeder, 62 Or App 331, 338, 661 P2d 111, rev den 295 Or 161 (1983) (unwarranted shackling of adult defendant is harmless error beyond a reasonable doubt if there is “overwhelming evidence of his guilt”). However, in reviewing this record, I cannot conclude that such evidence exists.
This case is similar to State v. Glick, 73 Or App 79, 697 P2d 1002 (1985). In Glick, we could not say that shackling the defendant without cause was harmless error beyond a reasonable doubt because the evidence came down to a credibility contest between the defendant and alleged victim. Id. at 83 n 1. In other words, we could not tell what effect, if any, the defendant’s shackles had on the jury’s credibility determinations.
Here, the dispositive issue, as conceded by child’s counsel below, was not whether child touched the alleged victim, but whether he did so with the requisite intent of sexually gratifying either the victim or himself. As in Glick, the only witnesses to the underlying incident were these two parties, and the juvenile court judge essentially was asked to weigh the credibility of their conflicting accounts. I cannot conclude from the record that child’s shackles did not affect his credibility,6 and thus cannot say the failure to remove his leg irons was harmless error beyond a reasonable doubt.
I would remand for a new hearing, directing the juvenile court to allow child to appear without physical restraints, unless the court receives evidence and finds that child poses an immediate or serious risk of dangerous or disruptive behavior.
The majority here apparently considered this factor because it found that child “presented his version of events without any suggestion of discomfort or reluctance.” 138 Or App at 148.
Although Kessler was a jury case in which we could more easily infer prejudice, its holding applies equally to prejudice in nonjury proceedings, e.g., influencing the defendant’s consultation with counsel and decision whether to testify. 57 Or App at 474.
The Duckett court did not go as far as finding reversible error, but instead remanded for a hearing on prejudice. 67 F3d 749. However, Duckett was an appeal from an adult habeas corpus action governed by a different standard of review. We review juvenile delinquency hearings de novo. ORS 419A.200C5); ORS 19.125(3). Because Kessler and Bird presume prejudice absent a finding of substantial necessity, as in this case, we are not required to remand to the juvenile court for a hearing on prejudice.
It is unclear whether Long means that shacking errors are harmless unless the defendant makes a record of prejudice, or merely that shackling is not error if supported by “reasonable grounds. ’ ’ For reasons stated later in this dissent, I would resolve that uncertainty in child’s favor.
Even under this new system, shackling a child without the requisite findings is not a “fair and impartial procedure.”
The transcript of child’s testimony shows many pauses, repetitions and unfinished sentences, as if he were hesitant and unsure of himself. Whether this is child’s normal way of speaking, or the proceedings themselves made him nervous or the shackles undermined his confidence, I cannot say. Under Kessler, Bird and Duckett, however, the state has the burden to demonstrate that the shackling did not prejudice child.