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Is There a Parent-Child Evidentiary Privilege?

Should a parent be forced to testify against a child, or vice-versa? Although one might think that Junior should never have to testify against his dear old dad, the overwhelming weight of authority is actually against the recognition of a parent-child evidentiary privilege.

In 2014, the Fourth Circuit Court of Appeals addressed this issue in Under Seal v. United States, and provided a comprehensive analysis of the rules governing privilege, how federal courts have addressed the issue, and how all of these led the Court to its decision not to recognize such a privilege.

Federal Rules Governing Claims of Privilege

The Court began with a discussion of the federal rules regarding privilege. Claims of privilege under the federal rules of evidence are governed by the common law, unless otherwise provided for by the U.S. Constitution, a federal statute, or rules prescribed by the Supreme Court. Federal Rule of Evidence 501 instructs that the common law, as applied to claims of privilege, is to be interpreted by U.S. courts "in light of reason and experience." The U.S. Supreme Court has recognized that the rules governing privileges are an evolving concept, such that Rule 501 authorizes courts to develop rules of privilege on a case-by-case basis, though the Court has cautioned that they should be strictly construed.

The U.S. Supreme Court has recognized the continued vitality of several privileges based on confidential relationships, such as the attorney-client privilege, the spousal privilege, as well as the more recently recognized psychotherapist-patient privilege, under Rule 501. In Jaffee v. United States, the court noted that such privileges are "rooted in the imperative need for confidence and trust."

What about the parent-child relationship? Is that a relationship with a need for confidence and trust?

Lower Federal Court Rulings

The Fourth Circuit recognized that a few federal district courts have concluded that parents and children do have such a relationship. In 1983, a Nevada district court in In re Agosto found that the "parent-child privilege . . . is based not only on the confidential nature of specific communications between parent and child, but also upon the privacy which is a constitutionally protectable interest of the family in American society." It compared the relationship to that of spouses, which is based on love and affection, as well as to psychotherapists and patients, which is based on the "guidance and 'listening ear' which one party to the relationship provides to the other party."

In 1982, the District Court of Connecticut recognized a parent-child privilege based on the First Amendment Free Exercise clause. In that case, In re Grand Jury Proceedings (Greenberg), the court did limit the privilege to the extent that the mother believed, based on her religious convictions, that she could not testify against her daughter "willingly or under legal compulsion."

In 1996, the Eastern District of Washington held in In re Grand Jury Proceedings, Unemancipated Minor Child, that there is a right to privacy associated with family life, and on that basis, some form of a parent-child privilege should be recognized, although the issue should be handled on a case-by-case basis.

Federal Appellate Courts Roundly Reject the Privilege

In contrast, the Court noted that every federal appellate court faced with the issue had declined to adopt the privilege:

  • 4th circuit: United States v. Dunford (1998)
  • 3rd circuit: In re Grand Jury (1997)
  • 2nd circuit: In re Erato (1993)
  • 10th circuit: Grand Jury Proceedings of John Doe v. United States (1988)
  • 7th circuit: United States v. Davies (1985)
  • 6th circuit: United States v. Ismail (1985)
  • 11th circuit: In re Grand Jury Subpoena of Santarelli (1984)
  • 5th circuit: In re Grand Jury Proceedings (Starr) (1981)
  • 9th circuit: United States v. Penn (1980)

Under Seal v. United States

With regard to the specific facts in Under Seal v. United States, the Fourth Circuit concluded that the district court erred in creating a parent-child privilege granting a 19 year old son's request not to testify against his father. In doing so, the Fourth Circuit found that the son did not make a strong showing of the need for the privilege. He was an adult, college age student, and testified that his father would not cut him off, if he testified truthfully.

The testimony sought was to determine the ownership of firearms found at the father's residence, so the Court also found that the nature of the testimony was not such that would damage the father-son relationship. The purported purpose of the privilege would not be furthered by precluding the son from testifying, given the danger of the presence of firearms to the family and the allegations of spousal abuse.

Additionally, the Court determined that reason and experience do not warrant creation of the privilege in light of the substantial authority to the contrary.

States' Approach

Only a few states recognize some form of parent-child privilege -- Connecticut, Idaho, Massachusetts, Minnesota (by statute) and New York (by judicial ruling).

Practical Implications

How often is this issue likely to arise? University of Montana professor, Cynthia Ford, argues that the instances where an attorney would actually call an opponent's parent or child as a witness is likely rare. Even in the event that it does occur, she argues, the likelihood of obtaining useable information is miniscule, and the possibility of alienating a juror is very real.

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