Cabell v. Terry W.

Opinion

THOMPSON, J.

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.

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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 privilege to refuse to be a witpess, 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 td the situation of communications between a parent and

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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,