An Expert’s Dilemma In Reporting Child Abuse.

Child AbuseAt issue here are two divergent legislative schemes: 1) An expert engaged to assist a lawyer in representation of a client is obligated to maintain the confidentiality of client communications. [Evidence Code sections 912 and 952.]; 2) Under the Child Abuse and Neglect Reporting Act [CANRA; Penal Code section 11164, et seq.], psychiatrists, psychologists, clinical social workers and other mental health professionals are “mandated reporters” and, as such, have an affirmative duty to report suspected child abuse or neglect to a child protective agency or other appropriate authority. Failure to report suspected child abuse is a misdemeanor. [Penal Code section 11166, subdivision (c).] The duty to report child abuse is not excused or barred by the psychotherapist-patient privilege of Evidence Code section 1014. (Penal Code section 11171.2 subdivision (b); People v. Stritzinger (1983) 34 Cal.3d 505, 512, [668 P.2d 738; 194 Cal.Rptr. 431];  Evidence Code section 1027.)

The lawyer for a juvenile accused of a crime requested the court to appoint a psychologist to assist in defending the juvenile. The court denied a request to appoint a psychologist who was not a member of the court’s panel, whose members informed the juvenile’s lawyer they would report to authorities any information of child abuse or neglect or Tarasoff threats. [See, Tarasoff v. Regents of California (1976) 17 Cal.3d 425, [551 P.2d 334; 131 Cal.Rptr. 14]. The juvenile court denied the motion. The appellate court reversed, stating:  “The court erred in limiting [the juvenile’s] choice of expert assistance in this manner. In the absence of clear legislative guidance, we decline to read into CANRA a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant’s right to a fair trial. Accordingly, we grant his petition for a writ of mandate and direct the court to vacate its order denying the motion to appoint [a named psychologist who indicated she would abide by duty of confidentiality] as a defense expert and to issue a new order granting the motion.” Elijah W. v.  Sup. Ct. (The People) (Cal. App. Second Dist., Div. 7; May 8, 2013) 216 Cal.App.4th 140.

About Mark Mellor

Mr. Mellor obtained his Bachelor of Science Degree from Cornell University in 1988. While at Cornell he was a member of Cornell University’s National Debate and Forensics Team, repeatedly recognized as an exceptional debater and individual public speaker throughout the country. Mr. Mellor obtained his Juris Doctorate from Southwestern University School of Law in 1992. He was admitted to both the California and the District of Columbia Bars and has been practicing law for over 18 years in both state and federal courts, including the Ninth Circuit Court of Appeals. Mr. Mellor started his own Real Estate and Business Litigation Practice in 2001 and has had three published opinions in the California Courts of Appeal since that time. Mr. Mellor is a past chair of the Executive Committee for the Litigation Section of the State Bar of California and was chair in (2007-2008); vice-chair (2006-2007); treasurer (2005-2006); secretary (2004-2005) and Executive Committee member (2002-2004). He also assists with the State Bar’s Real Estate Section Committee in California. He has special interests in real estate and business litigation involving loan modifications, foreclosures, mechanic’s liens, construction defects, business contracts, business entity formation, and technology.
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