Parent-child Privilege: Constitutional Right or Specious Analogy?

• Publication year: 1979

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 3, No.1FALL 1979

COMMENTS

Parent-Child Privilege: Constitutional Right Or Specious Analogy?

Donald Cofer

I. Introduction

To avoid reaching incorrect verdicts as a result of insufficient evidence, courts generally require witnesses to testify to all relevant facts within their knowledge.(fn1) Two important exceptions to this general rule,(fn2) incompetency and privilege, rest on very different rationales. Developed at common law to exclude unreliable evidence, rules of competency disqualify certain untrustworthy witnesses from testifying.(fn3) To promote extrinsic public policies, however, privileges excuse competent witnesses from providing what may be highly probative and reliable evidence.(fn4) In the past decade there have been calls for legislative or judicial(fn5) recognition of a parent-child privilege,(fn6) similar to the marital privilege,(fn7) that would excuse parents from testifying against their offspring.(fn8) In contrast to the virtually universal recognition of the marital privilege,(fn9) however, among common law jurisdictions(fn10) only Idaho recognized a parent-child prigilege(fn11) until a New York appellate court did so on federal constitutional grounds.(fn12)

This comment, in three parts, evaluates the propriety of recognizing a parent-child privilege. First, scrutiny of the general policy arguments advanced in support of the privilege and an analysis of the privilege in light of Wigmore's conditions precedent to establishing any interpersonal privilege illustrate that sound public policy does not support recognition of a parent-child privilege. Second, despite the reasoning of the New York appellate court, the constitutional right of privacy does not encompass a parent-child privilege. Finally, the impossibility of fashioning an acceptable form of the privilege further demonstrates that a parent-child privilege should not be recognized.

II. Parent-Child Privilege as a Matter of Public Policy

Proponents of a parent-child privilege advance four general policy arguments supporting its recognition: (1) the public interest in privacy; (2) the danger of destroying an important relationship; (3) the natural repugnance to compelling family members to testify against one another; and (4) the invitation to perjury or contempt that results from compelling testimony.

A. Invasion of Privacy

Commentators have defended a parent-child privilege by arguing that privacy is the paramount interest privileges promote and that privileges are important barriers to official invasions of privacy.(fn13) According to this view, privacy is an important end in itself-an essential condition of political liberty and of our very humanity.(fn14) Recognition of privileges, allowing the individual to strike a balance between total secrecy and total exposure, indicates the high value a society places on privacy.(fn15) Privileges protect privacy by recognizing a right to be let alone, a right to unfettered freedom, in certain relationships, from the state's coercive or supervisory powers.(fn16) Because one of the most important relationships is that between parent and child, courts should respect the privacy of that relationship.

The mere assertion of a privacy interest, however, is not sufficient justification for granting a parent-child privilege. In general, privileges should not be recognized automatically whenever privacy is at stake.(fn17) Even though our society holds privacy in high regard, not every privacy interest is sufficiently important to warrant a privilege, which results in the loss of relevant evidence. If privacy claims alone were enough justification for privileges, virtually all testimony would be privileged. Indeed, an invasion of privacy arguably occurs whenever a witness is subpoenaed to testify, in that the witness is forced to disclose information in his possession.(fn18) Privacy is not an absolute right, but rather must be balanced against other important societal interests, such as the fundamental interest in accurate adjudication.(fn19)

B. Family Relationship

The next justification for a parent-child privilege closely parallels the rationale of the marital privilege: that compelled testimony threatens an important relationship. Actually, this argument takes two forms: one supporting a general testimonial privilege,(fn20) the other supporting a confidential communications privilege.(fn21) The first argument is that any testimony of one family member against another will cause dissension in the family. This argument primarily supports a testimonial privilege(fn22) but can also support a communications privilege.(fn23) The second argument, used primarily to justify a communications privilege, is that compelled disclosure discourages future communications.(fn24) This argument rests on the assumptions that communication is essential for a successful relationship and that confidentiality is essential for communication.

The essence of the "dissension" rationale is that adverse parental testimony is so traumatic to the child that the parent-child relationship may be damaged irreparably.(fn25) Some proponents further suggest that compelled parental testimony will result in strained relations among the entire family.(fn26) According to this view, recognition of a parent-child privilege would contribute to family harmony.

The dissension argument is unconvincing, however, because court-compelled testimony simply is not a major source of parent-child conflict. As Dean Wigmore states, responding to the dissension argument in the context of the marital privilege, "The peace of families does not essentially depend on this immunity from compulsory testimony."(fn27) Most statements of the dissension rationale present an idealized and unrealistic picture of family relationships.(fn28) Parent-child relationships are not inherently peaceful and harmonious,(fn29) particularly in the typical delinquent's family,(fn30) and would not be significantly more tranquil if the privilege were recognized. Furthermore, in a healthy parent-child relationship, any detrimental effects of the adverse parental testimony could be lessened by explaining to the child that the testimony was given only under compulsion.(fn31) Moreover, if a parent could waive the privilege, as many proposed forms of the privilege provide, recognition of the privilege perhaps could create more dissension in the family. Recognition would increase the child's expectation that the parent would not testify, even though in some instances a parent might decide to testify after an honest assessment of the child's best interests. Most importantly, however, the destructive effect on the administration of justice of recognizing yet another privilege simply outweighs any risk of possible lingering resentment in the child.

The second "relationship" argument suggests that the primary justification for a parent-child privilege is the child's essential need to communicate with parents in a confidential setting.(fn32) According to this view, positive family interaction plays a significant role in the prevention of delinquency and the development of a well-adjusted child.(fn33) The therapeutic nature of parent-child communications plays an important role in the child's emotional growth.(fn34) A child's knowledge that his parents may be compelled to reveal confidential communications may seriously impair his willingness to confide in his parents, thus preventing them from providing guidance and support.(fn35) Furthermore, according to this theory the child most in need of parental guidance and family interaction, a juvenile accused of crime or delinquency, will be the very one whose confidences are revealed.(fn36)

In the context of parent-child relations, however, the "communications" rationale is unpersuasive. First, the sharing of confidences between parent and child, although desirable, is not nearly as crucial as proponents of a parent-child privilege suggest. Although a successful marriage may require the mutual surrender of individual privacy,(fn37) parents and children usually do not reveal themselves to each other to the same degree that husbands and wives do.(fn38) Shared confidences are not an invariable characteristic of successful parent-child relationships. Most of the important societal functions of the parent-child relationship can be fulfilled without the sharing of confidences.(fn39) Second, children may be less likely to confide in parents than in some persons outside the family.(fn40) Few jurisdictions, however, grant privileges to other adults, such as teachers, school counselors, and social workers,(fn41) in whom many children routinely confide. This illustrates that the crucial factor encouraging confidences by a child is not a courtroom privilege but rather the trust the child has in an understanding adult.(fn42) Third, the absence of a privilege does not prevent parents from keeping the vast majority of children's confidences that are shared,(fn43) nor would recognition of a privilege prevent parents from freely cooperating with police or prosecutors outside the courtroom.(fn44) Fourth, recognizing a privilege probably would have little effect on whether children would confide in their parents(fn45) because most children simply would be unaware of the rule.(fn46) Fifth, if the ultimate rationale behind the parent-child privilege is emotional adjustment in children and the prevention...