(concurring specially).
I concur in the result but I cannot concur in what is said in Divisions II and III of the opinion.
I. As to Division II the discussion of Code section 622.28 and the common law that it codifies is, to me at least, immaterial. The principles and statutes examined in Division II are valid as to ordinary litigation but they are not valid as to admissibility of evidence in Juvenile Court litigation. This is true because section 232.31 explicitly makes the evidence admissible. If the statute in question is constitutional the ordinary rules as to admission of evidence do not apply.
II. As to Division III, the holding goes beyond the necessities of this case and seeks to promulgate evidentiary rules based on fact situations not before the court. While such an analysis is advisable under certain circumstances (and often indulged in by courts) I submit the opinion goes too far in this case. The basic issues considered in Division III are decided in Harter v. State, 260 Iowa 605, 149 N.W.2d 827, 829, 834, which is clear on both the admissibility of the contested evidence and the constitutionality of the statute which makes it admissible:
“Therefore, evidence, which under the ordinary rules of evidence applicable to a civil trial would be excluded as hearsay, lacking a proper foundation, improper opinion evidence, or not the best evidence, is admissible in such proceedings and the nature of the evidence is to be considered as it affects its probative value rather than its admissibility. In re Yardley, et al., 260 Iowa 259, 149 N.W.2d 162, filed March 7, 1967. * * *.
“We find nothing unconstitutional in the evidentiary rules set forth in section 232.-46. The provisions of chapter 232 seek to retain the advantages of an informal hearing in juvenile court while providing safeguards which will guarantee each party his or her fundamental rights to a fair hearing. * *
Section 232.31 (dealing with cases of neglect and dependency) is identical to section 232.46 (dealing with cases of delinquency) . What was said in Harter v. State, supra, is controlling here until overruled.
In Orcutt v. State, 173 N.W.2d 66 (Iowa 1969), we again held the quoted provisions constitutional both as to sections 232.31 and 232.46. We held the confrontation of witnesses principle was not violated where the parties had a right to demand the presence of witnesses. Since no demand for production of witnesses was made in this case we need not and should not go further. But the majority continues on and decides the proper interpretation in the event the right to confrontation is demanded. The analysis seems to be based largely on a fear the section might otherwise be unconstitutional. I cannot concur in this portion of the opinion.
III.The admonitions in In re Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, require juvenile courts to recognize constitutional safeguards for children just as they are recognized for adults. The subject statutes do not offend in this regard. Gault also requires “sworn testimony subjected to the opportunity for cross-examination”. It does not require *735that all evidence be sworn testimony subjected to an opportunity for cross-examination; i. e., it does not rule out all hearsay evidence and all documentary evidence. In Gault, as in In re Lee, 126 Vt. 156, 224 A.2d 917 (cited by the majority) there was no sworn testimony whatsoever. Both commitments were made on simple un-sworn statements to the court. The sweep of the language in each case is understandable under such fact situations. However, the broad language of the cases was not, I submit, meant to eliminate such statutes as section 232.31. Stated otherwise neither Gault nor Lee eliminates reports and like evidence when used to corroborate sworn cross-examined testimony such as was offered in this case.
The impact of the confrontation clause on hearsay testimony has been the object of considerable consideration in the recent United States Supreme Court decisions. The Supreme Court as a whole is by no means sure of the extent or force of such impact. But I believe it is clear that none of the nine present Justices would eliminate hearsay exceptions altogether and none seem to eliminate reasonable extension of evidentiary rules by such a device as is found in section 232.31.
Since the problem of unconstitutionality has been reopened as to section 232.31 some Supreme Court of the United States statements must be examined here.
In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) the Sixth Amendment’s right of an accused to confront the witnesses against him has been applied to the states. At page 406 of 380 U.S., at page 1069 of 85 S.Ct., at page 928 of 13 L.Ed.2d the court speaking through Justice Black stated: “* * * a major reason underlying the constitutional rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him * *
“* * * This court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 36 L.Ed. 917, 921,. and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 39 L.Ed. 409-411. See also Dowdell v. United States, supra, 221 U.S. 325, at 330, 31 S.Ct. 590, 55 L.Ed. 753, at 757; Kirby v. United States, supra, 174 U.S. 47, at 61, 19 S.Ct. 574, 43 L.Ed. 890, at 896. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U.S. 458, at 474, 20 S.Ct. 993, 44 L.Ed. 1150, at 1156. There are other analogous situations which might not fall tvithin the scope of the constitutional rule requiring confrontation of witnesses. * * (Emphasis supplied.)
In Barber v. Page, 390 U.S. 719, at page 722, 88 S.Ct. 1318, at page 1320, 20 L.Ed.2d 255, at page 258 (1968) an exception to the right of confrontation was restated: “It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E. g., Mattox v. United States, supra, (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence §§ 1395-1396, 1402 (3d ed 1940); C. McCormick, Evidence §§ 231, 234 (1954).”
At page 724 of 390 U.S., at page 1322 of 88 S.Ct., at page 260, of 20 L.Ed.2d the court summarized: “* * * In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confronta*736tion requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.”
In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (June 23, 1970), the Supreme Court held that the Confrontation Clause was not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness subject to cross-examination. A California statute permitted the use of such statement. At pages 155-156 of 399 U.S., at pages 1933-1934 of 90 S.Ct., at pages 495-496 of 26 L.Ed.2d, the 7-man majority speaking through Justice White said:
“* * * The issue before us is the considerably narrower one of whether a defendant’s constitutional right ‘to be confronted with the witnesses against him’ is necessarily inconsistent with a State’s decision to change its hearsay rules to reflect the minority view described above. While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more nor less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.” (Emphasis supplied).
The latest Supreme Court case on the subject is Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (Dec. 15, 1970). There the evidence in question was a statement made by an alleged accomplice of the defendant to a fellow prisoner. The alleged accomplice did not appear as a witness at defendant’s trial. The case arose in Georgia which has a statute admitting a conspirator’s statement against a fellow-conspirator. The court by a 5-4 decision held defendant’s constitutional right to confrontation had not been violated. Mr. Justice Stewart announced the judgment of the court. Justices Burger, Blackmun and White joined. At page 80 of 400 U.S., at page 215 of 91 S.Ct., at page 222 of 27 L. Ed.2d the opinion states: “It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.” The court went on to hold that the exception to the hearsay rule in Georgia was constitutional as applied since (1) the evidence in question was not “crucial” or “devastating”, (2) there were 19 other witnesses for the prosecution, one of whom was an eyewitness to the crime and all of whom were subject to cross-examination, (3) there were “indicia of reliability” in the surrounding circumstances. The Chief Justice, and Justice Blackmun concurred stating an additional ground that if it was error it was harmless.
Mr. Justice Harlan concurring in the result stated the standard to be applied to such cases is that of due process and not confrontation.
Justice Marshall joined by Black, Douglas and Brennan, JJ., dissented. At page 110 of 400 U.S., at page 230 of 91 S.Ct., at page 239 of 27 L.Ed.2d the dissent narrowed its specific position: “ * * * To decide this case I need not go beyond hitherto settled Sixth and Fourteenth Amendment law to consider generally what effect, if any, the Confrontation Clause has on the *737common law hearsay rule and its exceptions, since no issue of such global dimension is presented. Cf. Bruton v. United States, 391 U.S. 123, at 128 n. 3, 88 S.Ct. 1620, 20 L.Ed.2d 476, at 480. The incriminatory extrajudicial statement of an alleged accomplice is so inherently prejudicial that it cannot be introduced unless there is an opportunity to cross-examine the declarant, whether or not his statement falls within a genuine exception to the hearsay rule.”
When one reads all of these statements in context it seems clear there is no disposition to eliminate hearsay altogether or to condemn development of new evidentiary rules. Therefore I cannot concur in the analysis found in Division III or the conclusion as stated: “When the juvenile sustains this burden evidence originating from such unavailable witness which does not contain material and relevant matter admissible under an exception to the hearsay rule shall not be given probative value by the trial court or this court. Orcutt v. State, 173 N.W.2d at 74-75.”
The litigant has a right to reach the witness for cross-examination if the witness is reasonably available. If the witness is not reasonably available the evidence may well be admissible nonetheless. In such event the evidence shall be given such probative value as it deserves. If the character of the evidence is such as to offend judicial notions of due process it should, of course, be eliminated. But this will depend entirely on the nature of the evidence offered, the nature of all of the other evidence in the case and, as the courts are wont to say, the totality of the circumsatnces. Thus each case will have to be decided on its own facts.
The tasks of the juvenile court and the procedures developed are somewhat akin to the tasks and procedures developed in administrative law. The analogy is close enough to make the following quotation worthwhile. Pike and Fischer, Administrative Law, Reporter-Service-Text, Current Text, § 48e.52, Hearsay Evidence in Administrative Hearings:
“Underlying this theory is a conception of the relationship between administrative body and reviewing court as the same as that prevailing between jury and court. In assuming this relationship, the court loses sight of the expert character of the administrative tribunal. To the extent that the common law rules of evidence are designed to prevent a jury of untrained laymen from relying on evidence of low probative value, they are inapplicable to a body of specialists constantly handling the same type of subject-matter and problems. If the only reason for refusing to permit such a body to consider hearsay evidence of any kind is that the admission of such evidence would constitute a denial of the right of cross-examination, the objection loses force in view of the fact that the admission of hearsay under any of the well-recognized exceptions to the hearsay rule has the same effect. The theory of the exceptions, however, is that the circumstances surrounding the uttering of the statement warrant its credibility, and that therefore the absence of cross-examination will not prejudice the adverse party before a jury; but an agency by virtue of its expertness should be competent to evaluate evidence whether or not it falls into one of the proscribed formal categories of the common law. Of course, if an agency should make a finding based entirely on hearsay evidence, when proof of the same facts by other available evidence would have afforded an opportunity for cross-examination, a court might well be justified in holding that the finding was not based on substantial evidence. But such a judgment resting on the particular circumstance presented does not justify a blanket prohibition against the admission of any hearsay evidence whatever in administrative proceedings. * * (Emphasis supplied).
So it is in juvenile court. The juvenile judge must be presumed to have special expertise. Juvenile court work becomes increasingly complex. Government seeks *738to lend a hand by supplying experts from other fields and other disciplines. The judiciary simply cannot continue to insist on production of a witness for each and every bit of information germane to the problem. If it does so insist society will delegate the task to a different system. This will likely harm, rather than help, the cause of youth.
In summary I would reaffirm the constitutionality of section 232.31, note that there is enough evidence by direct sworn statement to sustain the trial court, but also note that we have given the contents of school folder such probative value, and only such probative value, as we think it deserves.
UHLENHOPP, J., joins in this special concurrence.