This week, project participants for ALI’s Children and the Law Restatement gather in Philadelphia to discuss Preliminary Draft No. 5, which includes three Sections from Part III. Children in the Justice System:

  • 15.60. Use of Delinquency Finding as a Predicate for Enhancing a Criminal Sentence
  • 17.12. Use of Incriminating Disclosures in Connection with Transfer Proceedings
  • 17.13. Right to Independent Expert Assessment in Transfer Proceedings

Several portions of the Children in the Justice System Chapters were approved by ALI membership at the 2018 Annual Meeting. Including § 14.20. Rights of a Juvenile in Custody; Definition of Custody.

Section 17.12. Use of Incriminating Disclosures in Connection with Transfer Proceedings addresses the applicability of the Fifth Amendment and immunity for incriminating statements made during transfer hearings or in expert assessments conducted in connection with transfer proceedings. The Black Letter of the current draft states that the “privilege against self-incrimination applies in a juvenile transfer proceeding whether it is held in a juvenile court or a criminal court.” The Comments explain the rationale and the support for this position.

The below text is excerpted from the Comments of § 17.12, Preliminary Draft No. 5. This content has not been approved by Council or membership and therefore should not be considered the position of the Institute.


  1. Rationale. In re Gault, 387 U.S. 1 (1967), held that the Fifth Amendment right against self-incrimination applies to juvenile delinquency proceedings, which “must be regarded as ‘criminal’ for purposes of the privilege,” not only because of the deprivations associated with a delinquency adjudication itself, but also because statements made at any stage of the delinquency proceeding might also incriminate the juvenile in criminal proceedings. It is now generally understood that the Fifth Amendment applies in transfer proceedings under the Gault rationale even though the transfer adjudication is not intended to adjudicate the juvenile’s guilt and focuses instead on which court will have jurisdiction over the case. The juvenile therefore has an absolute right to remain silent at the transfer hearing. However, it is understood that when juveniles invoke their right to remain silent during and in connection with the transfer proceeding, the state’s interest in a reliable transfer adjudication as well as the juvenile’s interest in resisting transfer could both be frustrated. Accordingly, state courts and lawmakers typically provide “use immunity” for the juvenile by limiting the use of incriminating statements made at and in connection with the transfer hearing in any subsequent criminal adjudication or delinquency adjudication. This Section does so as well.
  1. Admissions of guilt. The Fifth Amendment entitles a juvenile to refuse to testify at a transfer hearing. It follows that requiring the juvenile to confess as a condition for retaining or invoking juvenile-court jurisdiction would also violate the Fifth Amendment even if the use of the admission in any subsequent criminal prosecution were barred. Requiring the juvenile to concede liability for delinquency—in a clinical interview or in a courtroom—cannot be used as a necessary condition for avoiding criminal prosecution. This principle also forbids a state from establishing a presumption favoring transfer to the criminal court (e.g., based on the juvenile’s age and the charged offense) that can only be rebutted if the juvenile admits guilt.
  1. Court-ordered clinical assessments for transfer. States commonly require clinical assessment of a juvenile eligible for transfer, typically by a court-appointed examiner. It is clear that the Fifth Amendment applies to a transfer assessment, just as it applies to a court-ordered pretrial assessment of the juvenile’s adjudicative competence or mental state at the time of the offense. See Estelle v. Smith, 451 U.S. 454 (1981) and In re Gault, 387 U.S. 1 (1967). The juvenile therefore has a right to decline to answer possibly incriminating questions during the clinical examination.

Defendants and their attorneys often face a strategic dilemma in preparing for transfer hearings. Should the youth engage in open communication with juvenile-court staff and court-ordered clinical examiners, hoping to demonstrate amenability to rehabilitation and support other statutory criteria (e.g., immaturity or mitigated culpability) favoring retention of the case in juvenile court? Or should the juvenile invoke his or her constitutional right to remain silent in an effort to avoid self-incrimination, even though doing so might increase the probability of transfer? Recognizing this dilemma, state courts and legislatures have generally and wisely concluded that youths should be encouraged to demonstrate their suitability for juvenile-court jurisdiction and have therefore banned use of statements made during the transfer evaluation against them in the adjudicatory hearing or in any criminal proceeding (“use immunity”) except under specific circumstances (e.g., if the statements made during the evaluation are used at the later proceeding to impeach the juvenile’s testimony or to rebut a specific claim raised by the defense). See also Comment d.

  1. Scope of use immunity. States vary in the scope of “use immunity.” There are essentially four approaches. Some simply preclude the state from using statements made during the exam or at the transfer hearing on the issue of guilt in any subsequent adjudication, while allowing the statement to be used in connection with disposition or sentencing. Others ban any affirmative prosecutorial use of statements made during an exam or at the transfer hearing against the juvenile in any subsequent adjudication except in rebuttal of a claim raised by the defense or for impeachment of the defendant’s own testimony. Others ban use of such statements against the juvenile generally while allowing an exception only for impeachment. Finally, other states ban any prosecutorial use of statements at all over defense objection. This Section allows prosecutorial use of the juvenile’s statements at the transfer hearing only for impeachment. However, it allows statements made by the juvenile during the transfer examination, and professional opinion based on these statements, to be used by the prosecution not only for impeachment but also in rebuttal of defense claims. The latter approach is congruent with standards that typically govern use of information and opinion in pretrial mental-health examinations in criminal cases.

For access to the Black Letter of § 17.12, Preliminary Draft No. 5, please contact The contents of Preliminary Draft No. 5 have not been approved by Council or membership and therefore should not be considered the position of the Institute.


Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Medicine and Law Emeritus at the University of Virginia School of Law, having retired from teaching in 2023. He formerly served as director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss's research interests include children's and parents' rights and the legal system's allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law. 

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law.  Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

David D. Meyer

Associate Reporter (2016-2020), Children and the Law

David Meyer became the 22nd Dean of Tulane Law School in 2010. His expertise relates to constitutional law and family law, and he has written extensively on topics at the intersection of the two fields. He served as U.S. national reporter on family law at several congresses of the International Academy of Comparative Law, including Washington (2010), Utrecht (2006) and Brisbane (2002), and he has delivered endowed lectures or keynote addresses at BYU, Florida, Hofstra, Michigan State and other venues.

Jennifer Morinigo

The American Law Institute


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