Procedural Rights in the Juvenile Court: Incorporation or Due Process?

The landmark Supreme Court decision in In re Gault established, among other things, a juvenile's right to counsel in delinquency prosecutions. However, the decision left unanswered certain questions relating to the nature and scope of that right. In this article, the author examines whether or not Gault initiated a special due process right to counsel for juveniles apart from that body of sixth amendment law previously developed in criminal cases. Alternatively, he wonders whether Gault was meant to initiate a process of selective incorporation of the Bill of Rights into the juvenile justice system.

The author critically analyzes the resulting trends of decisional and statutory law in various jurisdictions. The particular focus on the right to counsel at pre-trial identification procedures provides a most useful paradigm for examining incorporation in the juvenile context.