Johnson v. District of Columbia ( 1970 )

NEBEKER, Associate Judge

(dissenting) :

The predicate for my disagreement with the majority is the way in which I read In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970), and In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967). To me, those cases logically extend to paternity procedures presently conducted under D.C.Code 1967, § 16-2341 et seq.¹

Prior to trial in 1969, counsel for appellant requested the trial judge to apply the standard of proof beyond a reasonable doubt. The trial judge, relying on previous decisions of this court,² refused to apply that standard and expressly found appellant to be the father of the child in question on the preponderance standard.³

Appellant now argues that the subsequent decision in Winship, supra, requires application of the reasonable doubt standard in this paternity proceeding. He recognizes and the District of Columbia argues that Winship dealt only with a juvenile court delinquency proceeding. However, as appellant observes, the Supreme Court relied heavily on In re Gault, supra, in rejecting what it referred to as “the ‘civil’ label-of-convenience which has been attached to juvenile proceedings” to justify a lesser standard of proof. 387 U.S. at 50, 87 S.Ct. at 1455. That Court also rejected any attempt to “justify the preponderance standard on the related ground that juvenile proceedings are designed not to punish, but to save the child.” In re Winship, 397 U.S. at 365, 90 S.Ct. at 1073. Appellant also accurately observes: “[Cjivil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts” where the defendant may suffer a loss of liberty if the verdict is against him. In re Winship, 397 U.S. at 365-366, 90 S.Ct. at 1073.

Therefore, it seems to me in our disposition of this issue, we cannot be governed by basic social or legal purpose of the proceedings⁴ any more than by a label used as a shorthand description.⁵ We must look to the nature of the proceedings and the consequences arising from its commencement and determination.

Appellant correctly points out that paternity proceedings are begun as a “prosecution upon information.” D.C.Code 1967, § 16-2342. If necessary the “accused” may “be arrested and brought before the court.” D.C.Code 1967, § 16-2345. Prior to trial, the “accused” may be committed to jail in lieu of bond. D.C.Code 1967, § 16-2346. Presumably, however, the Bail Reform Act of 1966, 18 U.S.C. § 3146 (Supp. V, 1969), et seq., governs the setting of bail. Cf. Hoffman v. United States, 131 U.S.App.D.C. 201, 403 F.2d 927 (1968), applying that Act to an extradiction proceeding.

I also see trappings of criminal process in these paternity proceedings because, m lieu of giving security to guarantee payments, appellant was placed “on probation to the court on condition that payments be made”, and in default “the court may revoke probation and commit the defendant to jail” for no more than one year at a time. D.C.Code 1967, § 16-2350. To assume, as the majority does, that incarceration would not be a direct consequence of these proceedings is, I submit, unreal. Subsequent inability or refusal to pay may be the immediate cause of going to j ail, but, as in a criminal case involving a fine, it is the underlying factual adjudication which is the primary causative factor in loss of liberty.

The District of Columbia argues that such commitment power is limited to the Juvenile Court’s general contempt authority under D.C.Code 1967, § 11-1581. That section, however, limits punishment to $200 or six months or both. Of course, a trial for contempt not committed before the court must be afforded the contemner if charged under that provision. But to the contrary, no trial in a strict or formal sense is available to one who defaults in support payments ordered from paternity proceedings. Stevens v. District of Columbia, D.C.Mun.App., 127 A.2d 147 (1956). Indeed, the only issue on revocation of probation is whether the court abused its discretion. Stevens v. District of Columbia, supra. It is thus apparent that appellant would be given no new hearings on facts found at the paternity hearing by a mere, and in this case by the “slightest”, preponderance of the evidence. Accordingly, he may be deprived of his liberty for up to one year on facts found by a preponderance of the evidence and which would not have been so found under the stricter standard.

Of course, I realize that commitment may occur in a case where an alimony or support order arises from a divorce proceeding or from other civil proceedings where the preponderance standard unquestionably applies. Therefore, it would seem that the possibility of subsequent incarceration is not necessarily and exclusively the determinative factor.

As I understand it, the considerations which led to the holdings in Winship, supra, and In re Gault, supra, included the nature of the proceedings from their beginning, the status or potential status of liberty during the proceedings and afterward, and the effect of the adjudication in the form of “stigma”. The Supreme Court, in Winship, 397 U.S. at 363, 90 S.Ct. 1068, spoke of stigma resulting in a finding of violations of a criminal law. In a paternity proceeding the critical fact is whether an illegal act of sexual intercourse resulted in birth out of wedlock. Whether that determination is viewed as a violation of an unused criminal statute or not it unquestionably can have broad and serious stigmatic ramifications for the adjudicated father. We have earlier recognized these consequences as “definitely of criminal overtone.” District of Columbia v. Turner, D.C.Mun.App., 154 A.2d 925 (1959).

I would, therefore, hold that as to the present case, where the trial court was asked to apply the stricter standard of proof and stated that if the daw so required it would find for the accused, the decision in Winship, supra, requires entry of a finding in his favor. To the extent that our previous decisions are in conflict, I view them as overruled by Winship.

As noted, the proceedings in this, case took place before the decision of the Supreme Court in Winship. Accordingly, the trial judge then correctly applied the existing law. Since, however, application of the stricter standard relates to a serious flaw in,⁶ or the integrity of,⁷ the fact-finding process, I believe it must be applied to this case. See also In re Ellis, 429 F.2d 214 (D.C.Cir., 1970), applying Winship to earlier juvenile court delinquency proceedings in which the point was preserved for review. Moreover, since the trial judge expressly found in favor of appellant on the reasonable doubt standard, I see no occasion to consider applicability of the harmless constitutional error standard. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967). Accordingly, I would reverse with instructions to enter judgment for appellant.

1 . That type of proceeding has been completely changed under Sec. 121, (§ 16-2341 et seq.) of the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No.91-358, 84 Stat. 473, 544. All trappings of existing criminal character are removed, and the nature of the proceeding is expressly civil. That provision of the Act, however, becomes effective in February, 1971.

2 . Hawkins v. District of Columbia, D.C.App., 203 A.2d 116 (1964) ; Jackson v. District of Columbia, D.C.App., 200 A. 2d 199, 201 (1964) ; District of Columbia v. Turner, D.C.Mun.App., 154 A.2d 925 (1959). In District of Columbia v. Turner, supra at 927, citing Bragg v. District of Columbia, D.C.Mun.App., 98 A.2d 784, 785 (1953), we did, however, speak of the legal sufficiency of uncorroborated testimony in terms of “clear and convincing.” This observation is significant in light of the Supreme Court’s subsequent decision in Woodby v. Immigration Service, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), cited in In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068 (1970), relating to the standard of proof in deportation proceedings.

3 .The trial judge was “slightly more” of the view that appellant was the father. He also expressed his evaluation of the testimony as amounting to “a slightest tipping of the scales” in favor of the prosecution.

4 . Harrison v. District of Columbia, D.C.Mun.App., 95 A.2d 332, 333 (1953).

5 . See note 2, supra.

6 . Robert v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

7 . Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).