Terry W., In re
| Decision Date | 30 June 1976 |
| Docket Number | Cr. 27488 |
| Citation | 130 Cal.Rptr. 913,59 Cal.App.3d 745 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of TERRY W., a person coming under the Juvenile Court Law. Clarence E. CABELL, acting Chief Probation Officer of Los Angeles County, Petitioner and Respondent, v. TERRY W., Defendant and Appellant. |
Cedric Sarnoff, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Wilbur F. Littlefield, Public Defender, Harold E. Shabo and Laurance S. Smith, Deputy Public Defenders, as amici curiae on behalf of appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Penina S. Van Gelder, Deputy Attys. Gen., for petitioner and respondent.
This appeal from an adjudication of delinquency pursuant to Welfare and Institutions Code section 602 asserts that there should be a judicially declared evidentiary privilege exercisable by a child to prevent disclosure by his parent of communications made in the course of the parent-child relationship. Concluding that the privilege is not constitutionally required and is contrary to express statute, we affirm the adjudication.
The home of Ernest Long was burglarized. The only evidence connecting Terry W. with the crime is his confession to his mother. The confession was received in evidence over the objection of Terry's trial counsel on the ground of a 'parent-child privilege' analogous to the attorney-client bar to disclosure of confidential communications. 1 Terry was adjudicated a delinquent ward of the juvenile court and this appeal followed.
Evidence Code section 911 states: 'Except as otherwise provided by statute' no person has a privelege to refuse to be a witness, no person has a privilege to refuse to disclose any matter or to refuse to produce physical evidence, and no person has a privilege that another shall not be a witness or disclose matter or produce physical objects. No statute declares a parent-child privilege. On its face, section 911 thus validates the juvenile court's action receiving Terry's confession in evidence.
Terry, through counsel and with the support of an amicus brief, argues that as applied to the situation of communications between a parent and child, Evidence Code section 911 violates the federal and California Constitutions by impinging upon the right to counsel and the privilege against self-incrimination while also invading the penumbra of the right of privacy. He argues, also, that the compulsion upon a parent to testify against his child violates fundamental fairness and the purpose of the juvenile court law. The arguments, while persuasive that perhaps some sort of parent-child privilege should be created (see Coburn, Child-Parent Communications: Spare the Privilege and Spoil the Child, 74 Dick.L.Rev. 599), do not establish that the privilege is constitutionally compelled or that it exists by statutory construction.
Terry's contention of the existence of the parent-child privilege as ancillary to the right to counsel is based upon People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793. There our Supreme Court held that a request by a minor to see his parents made in the course of a custodial interrogation was the equivalent of an assertion of the Miranda right to counsel so as to preclude further questioning. People v. Burton, however, does not equate communication to and advice from a parent with communication to and advice from an attorney. It says only that, in the case of a minor, the natural manner in which to claim a reluctance to respond to custodial interrogation is a request for help from a parent or guardian. (6 Cal.3d at p. 382, 99 Cal.Rptr. 1, 491 P.2d 793.)
There are undoubtedly situations where a communication from child to parent falls within the attorney-client or other professional privilege. Where, for example, the communication to the parent is to further the child's interest in communication with, or is necessary for transmission of information to, a lawyer (Evid.Code, § 952), a physician (Evid.Code, § 992), or a psychotherapist (Evid.Code, § 1012), the communication is protected by the pertinent statutory privilege. Nothing in the record at bench leads to such a conclusion, however. The confession occurred after counsel was appointed for Terry, and no claim was made in the juvenile court that Terry's statement to his mother was intended for communication to his counsel or to a physician or psychotherapist.
The argument that disclosure of the communication violates the privilege against self-incrimination runs afoul of the principle that the privilege is...
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In re Jury
... ... 2. State Courts Have Overwhelmingly Rejected the Privilege. The overwhelming majority of state courts, like their federal counterparts, have also declined to recognize a common-law parent-child privilege. See, e.g., In re Inquest Proceedings, 676 A.2d 790 (Vt.1996) 14 ; In re Terry W., 59 Cal.App.3d 745, 130 Cal. Rptr. 913 (1976); Marshall v. Anderson, 459 So.2d 384 (Fla.Dist.Ct.App.1984); People v. Sanders, 99 Ill.2d 262, 75 Ill.Dec. 682, 457 N.E.2d 1241 (1983); Gibbs v. State, 426 N.E.2d 1150 (Ind.Ct.App.1981); Cissna v. State, 170 Ind.App. 437, 352 N.E.2d 793 ... ...
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...2d 538, 21 Cal. Rptr. 185, §1:130 Terry, People v. (1974) 38 Cal. App. 3d 432, 113 Cal. Rptr. 233, §16:110 Terry W ., In re (1976) 59 Cal. App. 3d 745, 130 Cal. Rptr. 913, §10:20 Tesoro del Valle Master Homeowners Assoc. v. Griffin (2011) 200 Cal. App.4th 619, 133 Cal. Rptr. 3d 167, §§2:20,......
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Privilege
...States v. Davies , 768 F.2d 893 (7th Cir. 1985) cert. den . 474 U.S. 1008, 106 S. Ct. 533, 88 L.Ed.2d 464 (1985); In re Terry W , 59 Cal.App.3d 745, 130 Cal.Rptr. 913 (1976). 77 People v. Asta , 337 Mich. 590, 60 N.W.2d 472 (1953); see also People v. Ward , 226 Mich. 45, 196 N.W. 971 (1924)......
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Privilege
...States v. Davies , 768 F.2d 893 (7th Cir. 1985) cert. den . 474 U.S. 1008, 106 S. Ct. 533, 88 L.Ed.2d 464 (1985); In re Terry W , 59 Cal.App.3d 745, 130 Cal.Rptr. 913 (1976). 74 People v. Asta , 337 Mich. 590, 60 N.W.2d 472 (1953); see also People v. Ward , 226 Mich. 45, 196 N.W. 971 (1924)......
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Privilege
...States v. Davies , 768 F.2d 893 (7th Cir. 1985) cert. den . 474 U.S. 1008, 106 S. Ct. 533, 88 L.Ed.2d 464 (1985); In re Terry W , 59 Cal.App.3d 745, 130 Cal.Rptr. 913 (1976). 74 People v. Asta , 337 Mich. 590, 60 N.W.2d 472 (1953); see also People v. Ward , 226 Mich. 45, 196 N.W. 971 (1924)......