matter of constitutional principle in California

1992As a matter of constitutional principle, the United States Supreme Court has held that a state's compelling interest in protecting child victims of sex crimes from further trauma may in some instances outweigh the right to confrontation. ( Maryland v. Craig (1990) 497 U.S. 836, 852 [ 111 L.Ed.2d 666, 683 , 110 S.Ct. 3157 ] [upholding procedure of closed-circuit television testimony by child in criminal case].) Likewise, the California courts have approved the use of statutory procedures in dependency cases which deprived parents accused of molestation of the opportunity to confront and cross-e

1992As a matter of constitutional principle, the United States Supreme Court has held that a state's compelling interest in protecting child victims of sex crimes from further trauma may in some instances outweigh the right to confrontation. ( Maryland v. Craig (1990) 497 U.S. 836, 852 [ 111 L.Ed.2d 666, 683 , 110 S.Ct. 3157 ] [upholding procedure of closed-circuit television testimony by child in criminal case].) Likewise, the California courts have approved the use of statutory procedures in dependency cases which deprived parents accused of molestation of the opportunity to confront and cross-e

1968(Stovall v. Denno, 388 U.S. 293, 302 [ 18 L.Ed.2d 1199, 1206 , 87 S.Ct. 1967 ]; People v. Feggans, 67 Cal.2d 444 , 448 *46 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ].)” In Simmons v. United States (1968) 390 U.S. 377, 384 [ 19 L.Ed.2d 1247, 1253 , 88 S.Ct. 967 ], in discussing the use of photographs in aid of identification, the court states the rule applicable: “We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

1968(Stovall v. Denno, 388 U.S. 293, 302 [ 18 L.Ed.2d 1199, 1206 , 87 S.Ct. 1967 ]; People v. Feggans, 67 Cal.2d 444 , 448 *46 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ].)” In Simmons v. United States (1968) 390 U.S. 377, 384 [ 19 L.Ed.2d 1247, 1253 , 88 S.Ct. 967 ], in discussing the use of photographs in aid of identification, the court states the rule applicable: “We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

1993Therefore, the court was entitled to consider those statements under the hearsay exception recognized in In re Malinda S. Further, Kailee’s remarks to her aunt and pediatrician about her vaginal soreness were admissible under the physical sensation exception to the hearsay rule to establish her “present physical condition and her view of its cause.” (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [ 12 Cal.Rptr.2d 294 ].) In addition, the independent observations of Kailee’s mother, aunt and grandmothers that she slept in the same room with appellant, that her behavior changed after visiting a

1993Therefore, the court was entitled to consider those statements under the hearsay exception recognized in In re Malinda S. Further, Kailee’s remarks to her aunt and pediatrician about her vaginal soreness were admissible under the physical sensation exception to the hearsay rule to establish her “present physical condition and her view of its cause.” (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [ 12 Cal.Rptr.2d 294 ].) In addition, the independent observations of Kailee’s mother, aunt and grandmothers that she slept in the same room with appellant, that her behavior changed after visiting a

2005In these proceedings, ‘the paramount concern is the child’s welfare.’ {In re Malinda S., supra, 51 Cal.3d at p. 384 , italics added.) We further note that ‘[a]s a matter of constitutional principle, the United States Supreme Court has held that a state’s compelling interest in protecting child victims of sex crimes from further trauma may in some instances outweigh the right of confrontation.

1993Preliminarily, we note that “[dependency proceedings are civil in nature, designed not to prosecute a parent, but to protect the child." In these proceedings, ‘the paramount concern is the child’s welfare.” (In re Malinda S., supra, 51 Cal.3d at p. 384 , italics added.) We further note that “[a]s a matter of constitutional principle, the United States Supreme Court has held that a state’s compelling interest in protecting child victims of sex crimes from further trauma may in some instances outweigh the right of confrontation.

2005(Maryland v. Craig (1990) 497 U.S. 836, 852 [ 111 L.Ed.2d 666 , 110 S.Ct. 3157 ] [upholding procedure of closed-circuit television testimony by child in criminal case].)’ [Citation.]” (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1044 [ 17 Cal.Rptr.2d 643 ]; see Kailee B., supra, 18 Cal.App.4th at pp. 725-726.) As we recognized in Kailee B., a young child may not qualify to testify as a witness for any number of reasons, including the overwhelming intimidation of a courtroom setting.

2005(Maryland v. Craig (1990) 497 U.S. 836, 852 [ 111 L.Ed.2d 666 , 110 S.Ct. 3157 ] [upholding procedure of closed-circuit television testimony by child in criminal case].)’ [Citation.]” (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1044 [ 17 Cal.Rptr.2d 643 ]; see Kailee B., supra, 18 Cal.App.4th at pp. 725-726.) As we recognized in Kailee B., a young child may not qualify to testify as a witness for any number of reasons, including the overwhelming intimidation of a courtroom setting.

1995Power must be placed somewhere, and *1741 confidence reposed in some one.” (Myers v. English, supra, 9 Cal. at p. 349 , original italics, disapproved in other part in Mandel v. Myers (1981) 29 Cal.3d 531, 551, fn. 9 [ 174 Cal.Rptr. 841 , 629 P.2d 935 ].) In Wilson v. Superior Court, supra, 194 Cal.App.3d at page 1268 , the court referred to the same subject matter: “It is well established as a matter of constitutional doctrine, basic to our form of government, that the judicial branch cannot directly and prospectively require a specific legislative act.” The court in Wilson then drew a paralle

1995Power must be placed somewhere, and *1741 confidence reposed in some one.” (Myers v. English, supra, 9 Cal. at p. 349 , original italics, disapproved in other part in Mandel v. Myers (1981) 29 Cal.3d 531, 551, fn. 9 [ 174 Cal.Rptr. 841 , 629 P.2d 935 ].) In Wilson v. Superior Court, supra, 194 Cal.App.3d at page 1268 , the court referred to the same subject matter: “It is well established as a matter of constitutional doctrine, basic to our form of government, that the judicial branch cannot directly and prospectively require a specific legislative act.” The court in Wilson then drew a paralle

1993(Ma ryland v. Craig (1990) 497 U.S. 836, 852 [ 111 L.Ed.2d 666, 683 , 110 S.Ct. 3157 ] [upholding procedure of closed-circuit television testimony by child in criminal case].)” (In re Elizabeth T. (1992) 9 Cal.App.4th 636, 641 [ 12 Cal.Rptr.2d 10 ].) Certainly, the due process rights of parents in dependency proceedings are no more extensive than the rights of defendants in criminal proceedings, the latter entailing a greater threat to an individual’s liberty interests. 4 Here, Ashley was unavailable as a witness by reason of her incompetency to testify.

1993(Ma ryland v. Craig (1990) 497 U.S. 836, 852 [ 111 L.Ed.2d 666, 683 , 110 S.Ct. 3157 ] [upholding procedure of closed-circuit television testimony by child in criminal case].)” (In re Elizabeth T. (1992) 9 Cal.App.4th 636, 641 [ 12 Cal.Rptr.2d 10 ].) Certainly, the due process rights of parents in dependency proceedings are no more extensive than the rights of defendants in criminal proceedings, the latter entailing a greater threat to an individual’s liberty interests. 4 Here, Ashley was unavailable as a witness by reason of her incompetency to testify.

1980Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden'tification.””’ (Also see People v. Lawrence (1971) 4 Cal.3d 273, 278-279 [ 93 Cal.Rptr. 204 , 481 P.2d 212 ].) The procedure used here was not “impermissibly suggestive” as contended by defendant.

1980Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden'tification.””’ (Also see People v. Lawrence (1971) 4 Cal.3d 273, 278-279 [ 93 Cal.Rptr. 204 , 481 P.2d 212 ].) The procedure used here was not “impermissibly suggestive” as contended by defendant.

1980Gertz declared that states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual “so long as they do not impose liability without fault” ( 418 U.S. at p. 347 [ 41 L.Ed.2d at p. 809 ]), and while Gertz involved media defendants some courts have found the principle applicable to nonmedia defendants as well.

1980Gertz declared that states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual “so long as they do not impose liability without fault” ( 418 U.S. at p. 347 [ 41 L.Ed.2d at p. 809 ]), and while Gertz involved media defendants some courts have found the principle applicable to nonmedia defendants as well.

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1978The California Supreme Court (People v. Mason, 5 Cal.3d 759 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a “reduced expectation of privacy” (id. at pp. 764-765) flowing from the individual’s consent given as part of the sentencing procedure. 2 Under the Mason rationale a probationer who has waived *833 the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated “by legitimate governmental demands.” Consent to sea

1968(Stovall v. Denno, 388 U.S. 293, 302 [ 18 L.Ed.2d 1199, 1206 , 87 S.Ct. 1967 ]; People v. Feggans, 67 Cal.2d 444 , 448 *46 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ].)” In Simmons v. United States (1968) 390 U.S. 377, 384 [ 19 L.Ed.2d 1247, 1253 , 88 S.Ct. 967 ], in discussing the use of photographs in aid of identification, the court states the rule applicable: “We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

1968(Stovall v. Denno, 388 U.S. 293, 302 [ 18 L.Ed.2d 1199, 1206 , 87 S.Ct. 1967 ]; People v. Feggans, 67 Cal.2d 444 , 448 *46 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ].)” In Simmons v. United States (1968) 390 U.S. 377, 384 [ 19 L.Ed.2d 1247, 1253 , 88 S.Ct. 967 ], in discussing the use of photographs in aid of identification, the court states the rule applicable: “We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.