§ 39.04 PARENT-CHILD PRIVILEGE

• Jurisdiction: United States

§ 39.04. PARENT-CHILD PRIVILEGE

Although some courts⁶⁸ and legislatures⁶⁹ have recognized a parent-child privilege, most have not.⁷⁰ Why? One court gave the following reasons: "First, confidentiality — in the form of a testimonial privilege — is not essential to a successful parent-child relationship. . . . A privilege should be recognized only where such a privilege would be indispensable to the survival of the relationship that society deems should be fostered . . ."⁷¹

The court went on to state that "even assuming arguendo that children and their parents generally are aware of whether or not their communications are protected from disclosure, it is not certain that the existence of a privilege enters into whatever thought processes are performed by children in deciding whether or not to confide in their parents. Indeed, the existence or nonexistence of a parent-child privilege is probably one of the least important considerations in any child's decision as to whether to reveal some indiscretion, legal or illegal, to a parent."⁷²

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Notes:

^[68] See In re Agosto, 553 F. Supp. 1298 (D. Nev. 1983); In re Application of A. and M., 403 N.Y.S.2d 375 (App. 1978); People v. Fitzgerald, 422 N.Y.S.2d 309 (Sup. Ct. 1979).

^[69] See Idaho Codes § 9-203(7); Minn. Stat. Ann. § 595.02(j); Mass. Gen. L. ch. 233, § 20. See also In re Grand Jury Investigation, 819 N.E.2d 171 (Mass. 2004) (rape of daughter's friends; because children did not live with their father, they were not disqualified from testifying under G.L. c. 233, § 20).

^[70] See Jaffee v. Redmond, 518 U.S. 1, 22 (1996) (dissenting opinion) ("Yet there is no mother-child privilege."); In re Grand Jury Proceedings, 103 F.3d 1140 (3d Cir. 1997); In re Grand Jury Proceedings, 842 F.2d 244 (10th Cir. 1988); Port v. Heard, 764 F.2d 423 (5th Cir. 1985); United States v. Ismail, 756 F.2d 1253 (6th Cir. 1985); In re Terry W., 130 Cal. Rptr. 913 (App. 1976); State v. De Long, 456 A.2d 877 (Me. 1983); Three Juveniles v. Commonwealth, 455 N.E.2d 1203 (Mass. 1983).

^[71] In re Grand Jury Proceedings, 103 F.3d 1140, 1152 (3d Cir. 1997). See generally Watts, The Parent-Child Privileges: Hardly a New or Revolutionary Concept, 28 Wm. & Mary L. Rev. 583 (1987); Ross, Implementing Constitutional Rights for Juveniles: The Parent-Child Privilege in Context, 14 Stan. L. & Pol'y Rev. 85 (2003); Note, Parent-Child Loyalty and Testimonial Privilege, 100 Harv. L. Rev. 910 (1987); Note, Making Form Follow Function: Considerations in...