Constitutional and Due Process Concerns: Juvenile and Family Courts of the Future
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Description
This paper addresses some of the constitutional and due process issues which must be considered when planning any change in the processing of cases involving intra-family violence. Of necessity, this examination is preliminary. It is meant only to identify issues and frame themes which need to be considered in greater depth depending on the precise contours of proposed changes. The issues analyzed here are based on a model for a future court which many of the papers presented at this symposium have advocated: a single family court which processes all matters relating to the family, including dependency, neglect, abuse, termination of parental rights, delinquency, supervision, divorce, custody, visitation, and intra-family violence inflicted on persons of any age, including sex abuse and assaults. The last category, intra-family violence may or may not be limited to misdemeanor cases. The following discussion will assume a court with jurisdiction over all criminal cases relating to family violence. Most of the issues discussed here would be analyzed identically regardless of the seriousness of the offense. The principal novel proposal for this court of the future is the consolidation of civil and criminal jurisdiction in one court devoted to the family. This consolidation raises immediate and obvious consitutional and due process concerns. However, closer examination suggests that few of these concerns are unique to the issue of joining courts together. Most of the issues concerning prosecution of two related matters are the same whether one court or more than one court hears the matters. This does not mean there are no serious constitutional issues to consider. However, most issues must be addressed first by policy considerations and then by careful analysis, point by point, of due process concerns. For example, a principal benefit of a single forum for prosecuting related matters is increasing the probability that relevant information about an offender or a family will not be lost. The fewer the individuals who need information, the smaller the risk that information will be lost or overlooked. If, for example, the same probation officer and prosecutor are involved in both the civil and criminal case, then planners need not worry about designing a system in which prosecutors from different offices learn to communicate with each other. But preferring a system which maximizes the flow and use of relevant information in this way leaves the separate policy question whether there is information which we do not want shared or used in related cases. For example, advocates for change might envision a system in which judges in criminal cases know more about an offender than most judges currently do. These advocates may propose unifying courts to effect this change. However, the question whether judges should have this information is a separate substantive issue which needs to be considered apart from the proposal to unify courts. In other words, proposals for procedural changes should not to be confused with proposals for substantive changes as well. In this paper, I will attempt to identify the consitutional and due process issues arising from any effort to combine courts and processes. However, it is essential that the distinction be maintained between this type of change and one which deliberately seeks to change more than mere structure. This paper assumes that the idea behind the proposed change is to do no more than provide an opportunity for fact- finders and other court personnel to obtain relevant information to which they are already currently entitled. Proposals to change substantive rules about admissibility of evidence and the like must be considered apart from the kinds of structural changes which are at the heart of the proposals for a future juvenile court.
Source Publication
Families in Court
Source Editors/Authors
Meredith Hofford
Publication Date
1989
Recommended Citation
Guggenheim, Martin, "Constitutional and Due Process Concerns: Juvenile and Family Courts of the Future" (1989). Faculty Chapters. 1274.
https://gretchen.law.nyu.edu/fac-chapt/1274
