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Check Your (Testimonial) Privilege: When Telling Your Child "You Can Come to Me for Anything" May Not Be the Best Advice
Photo by Tingey Injury Law Firm via Unsplash
Introduction
The perceived sanctity of familial relationships and privacy interests is reflected in common law and codified legal norms. Though generally individuals must testify in criminal and civil court if subpoenaed, communications shared between married partners are protected by spousal testimonial privilege. Spousal privilege takes two forms: an absolute privilege against adverse spousal testimony and a limited privilege which prevents disclosure of marital confidences (communications made in private). The rationale supporting these privileges is that the health and privacy of spousal relationships trump the state’s interest in fact-finding and adjudication. The relationship between children and their parents benefits from no such privilege. At the federal level and in the majority of states, parents can be forced to testify against their children and vice versa in both civil and criminal proceedings.
Consider the asymmetry of these two approaches. Confidences shared between married adult partners are protected while confidences shared between minor children and the people who brought them into the world or are trusted with their care are not. Relational feminists suggest that the current system of privileges is informed by patriarchal values and prioritizes relationships traditionally valued by men rather than by women.
Adoption of a parent-child testimonial privilege via statute is needed in order to protect the parent-child relationship and to better facilitate the free and full exercise of children’s constitutional rights. In support of this conclusion, this article will explore existing case law, state adoption by statute, and the legal arguments for and against adoption of a parent-child privilege.
Discourse Surrounding the Privilege in Federal and State Courts
“Ask the average citizen: Would your mental health be more significantly impaired by preventing you from seeing a psychotherapist, or by preventing you from getting advice from your mom? I have little doubt what the answer would be. Yet there is no mother-child privilege.”
–Antonin Scalia, Dissenting in Jaffee v. Redmond
In Jaffee v. Redmond, the Supreme Court recognized a novel privilege, protecting communications made by patients to their psychotherapists. It may not surprise readers that the next line of Justice Scalia’s dissent was not “therefore, the court should recognize a parent-child privilege as well.” Indeed, few courts at the federal and state level have voiced full-throated support for adoption of the privilege. The Supreme Court has denied certiorari in four different cases that would have raised the issue of a parent-child testimonial privilege. Only federal district courts in Nevada and Connecticut and lower courts in New York have recognized the privilege in some shape or form. Legal scholar Catherine Ross posits that the lack of consensus or action in adopting a parent-child privilege has more to do with a failure to differentiate various iterations of the privilege than it does with a generalized repudiation of the privilege’s legitimacy. Other evidence scholars suggest that the lack of consensus reflects concerns for judicial economy and the state’s fact-finding interest.
To be sure, not all variations on the parent-child privilege are created equal. There are stronger policy arguments in support of protecting communications made by children to their parents than the other way around. Societally, we expect parents to be more suited than their children to the roles of protector and advisor. It is also particularly important to ensure that the privilege is not implemented in cases involving intrafamily violence or child abuse. In United States v. Dunford, the Fourth Circuit rightly declined to apply the privilege to communications made by Dunford to his minor daughters based on evidence that he had sexually abused them and threatened them with a gun. The parent-child privilege makes more sense for protecting communications made by minor children living at home than it does for adult children living independently, though some judges have proposed a balancing test taking into account relative maturity and independence rather than a bright line rule protecting only children under the age of eighteen. Finally, it is easier to apply the privilege when limited to confidential communications rather than a blanket prohibition against adverse familial testimony. Confidentiality is a condition for asserting most privileges, including the attorney-client privilege and one form of the marital privilege.
Despite the lack of concrete precedent recognizing the parent-child privilege, support for the privilege is not difficult to find both on and off the bench. In In re Grand Jury Proceedings, Unemancipated Minor Child, a federal court in the Eastern District of Washington concluded that, in light of Jaffee, “both reason and experience mandate the recognition of some form of a parent-child privilege.” In Dunford, though the Fourth Circuit declined to recognize a parent-child privilege for the reasons stated above, the court observed that “there may be much to commend a testimonial privilege in connection with the testimony of or against a minor child to preserve the family unit.” Prosecutors themselves may be observing a de facto parent-child privilege for reasons of decency or strategy. The Justice Manual, a reference book issued by the Department of Justice for use by U.S. Attorneys, instructs federal prosecutors to “avoid seeking to compel the testimony of a witness who is a close family relative [including parents, children, grandparents, and siblings] of the defendant.” This may reflect a respect for family privacy or, more realistically in my estimation, a pragmatic judgment that compelling unwilling parents to testify against their children will neither result in accurate testimony nor endear the prosecutor to a jury. Whether or not such a prosecutorial practice exists, and regardless of the motivations behind it, the explicit recognition of the parent-child privilege is greatly needed.
Adoption by Statute at the State and Federal Level
Some state courts, California included, have explicitly reserved the power to create a parent-child testimonial privilege to the legislature. Four states so far have statutorily codified the privilege, though they have done so in different ways. Idaho, Minnesota, and Connecticut protect only communications made by children to their parents. In contrast, in Massachusetts “a parent shall not testify against the parent’s minor child and a minor child shall not testify against the child’s parent.” The states are also divided on what jurisdictional venues the privilege is appropriate for, with Massachusetts limiting the privilege to criminal cases, Connecticut limiting the privilege to juvenile proceedings, and Minnesota and Idaho allowing for the privilege to be asserted in both civil and criminal courts. Lastly, Massachusetts, Idaho and Connecticut go into some detail about who qualifies as a parent, custodian or legal guardian while Minnesota is unfortunately silent on that point.
There is some consensus among states worth noting. Every state that statutorily recognizes a parent-child privilege extends the protection only to minor children. Each state includes exceptions to the privilege for cases involving violence committed by the parent or child against other household/family-members. Minnesota and Idaho exclude civil actions where the parent and child are party-opponents, with Minnesota going still further to exclude proceedings “for termination of parental rights” as well as “any other action or proceeding on a petition alleging child abuse, child neglect, abandonment or nonsupport by a parent.”
At the federal level, legislative efforts to adopt the parent-child privilege have been sporadic but wholly unsuccessful. H.R. 3577, which would have amended the Federal Rules of Evidence (FRE) to “prohibit a witness in a Federal proceeding from being compelled to testify against, or disclose the content of a confidential communication with, his or her child or parent,” was introduced in March of 1998. The bill was likely in response to Independent Counsel Kenneth Starr’s decision to compel Monica Lewinsky’s mother to reveal to a grand jury intimate details her daughter had shared with her regarding her relationship with President Bill Clinton. While most of the nation had been appalled by Starr’s tactics, the bill never made it out of the House.
In 2003, House Representative Robert Andrews (D-NJ) introduced H.R. 538, a bill that would amend the FRE to establish a parent-child privilege. The amendment was modeled after the spousal privilege, barring adverse familial testimony and protecting confidential communications from both parents to children and children to parents. The bill included definitions of “parent” and “child” and outlined several precise exceptions similar to the Minnesota statute. The bill did not differentiate between minor and adult children and, like H.R. 3577, never made it out of the House.
Constitutional Arguments Supporting the Adoption of a Parent-Child Privilege
There are also constitutional reasons we might examine to justify this privilege, as exemplified by Catherine Ross's work in Implementing Constitutional Rights for Juveniles. Ross advocates for the recognition of what she refers to as the “essential parent-child privilege” which would protect confidential communications from a minor child to their parent and would be unwaivable by the parent, belonging to the child. Ross also proposes an adverse testimony privilege which would further protect a parent’s observations of their minor child and would be waivable by and belong to the parent. That the adverse testimony privilege can be waivable by the parent is especially important in situations where state intervention may truly be needed and the parent believes that the safety of society or their child merits disclosure. In support of her proposal, Ross offers two main constitutional principles that would be served by their adoption.
First, the privilege protects the liberty interest of parents in caring, providing for, and protecting their children, described by the Supreme Court in Troxel v. Granville as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Ross acknowledges that this is not an unalienable right, given the state’s power to intervene when it deems necessary, most notably in cases involving abuse or neglect. That the right is not absolute, in my opinion, does not count against adoption of the parent-child privilege. The power to remove a child from their home is, on its face, rooted in an interest in the well-being of the child. The power of the state to compel parental testimony is rooted in the state’s interest in fact-finding, concerns that are hardly analogous.
Second, Ross suggests that the parent-child privilege is essential for facilitating the meaningful exercise of a child’s own constitutional rights, particularly their Fifth and Sixth Amendment rights. Ross argues that parents often serve as “necessary conduit[s] between a minor and the advice of another adult whose role involves a recognized testimonial privilege” i.e. psychotherapists or attorneys. Additionally, a minor’s rights against self-incrimination, to be silent in the face of interrogation, and the right to counsel will be better served through uninhibited and protected communications with their parents.
Arguments Against the Privilege
Those opposed to adoption of a parent-child testimonial privilege typically argue that the privilege would pose an unacceptable barrier to the court’s fact-finding interest, threaten judicial economy, and be unlikely to benefit families in practice due to a lack of popular knowledge around the existence of familial privileges. In an interview, Professor Daniel Capra expanded on these concerns, focusing particularly on the judicial economy argument that determining the scope of the privilege is too difficult (ascertaining who qualifies as a “parent” and who qualifies as a “child”) and would likely require courts to make time-wasting fact-specific judgment calls on whether particular situations merit application of the privilege. In differentiating the parent-child privilege from the spousal privilege (though he is decidedly not a fan of either one) Professor Capra feels the “costs to the truth are greater” and the “applications are more difficult” as people have one spouse but often multiple children and in his view, marriage is a terminable relationship but the filial relationship is not. Finally, Capra believes that prosecutorial discretion will ensure that family privacy will only be intruded upon via compelled testimony as a “last resort.”
Judicial economy arguments should not be rejected out of hand. Devising policy changes or solutions to existing laws can often have unintended consequences for those “on the ground” navigating the courts and their ever-changing rules and practices. A variation of the privilege that recognizes the multiplicity of family structures in its definition of “parent” or “child” does so in the interest of inclusivity. It would be unfair to protect communications made only between biological/legal parents and their children when many children are raised by a grandparent or other relative. While theoretically this issue is solved by clear and specific statutory language, making determinations in practice involves fact-specific inquiry which will take time. Where you fall on this issue likely has more to do with ideology than with who has the stronger argument. Those who value efficiency and simplicity will likely be compelled by judicial economy concerns while those who value the protection of family relationships and who are mistrustful of the coercive power of the state will likely remain unconvinced.
Other arguments against the privilege, in my estimation, fail to hold water. The state’s fact-finding interest is not necessarily served by compelling testimony from unwilling family members when there are serious concerns (referenced above) that parents in that position will lie or be found in contempt of court rather than betraying their child’s trust. Compelling testimony puts similar stress on the parent-child relationship as it does on the marital relationship, and there are plenty of Americans who become estranged from their parents, often as a result of interpersonal conflict. The reliance argument that the privilege must be well-known by everyday Americans in order to be effective fails to recognize that once individuals find themselves in legal trouble, depending on the nature of the issue and their economic ability, they will likely seek (hopefully competent) legal counsel and will thereafter be informed of the privilege and enjoy its benefits. Lastly, it is hard to trust the effectiveness of prosecutorial discretion as a replacement for a codified privilege when you consider the impact of racial biases on prosecutorial practice.
Conclusion
Were America to adopt a parent-child privilege, we would hardly be the first country to do so. France, Germany, and Sweden all follow a familial privilege “whereby no relative by blood or marriage may be forced to testify against each other.” Additionally, protecting parents and children from forced testimony is not a new development in legal philosophy, the parent-child privilege has ancient roots in Jewish and Roman law.
Ideally, the parent-child privilege would be adopted at the federal level via statute. However, the lack of momentum past federal efforts have been able to muster raises concerns about how realistic this outcome is. In the interim, California should adopt the privilege, following the Ross proposal. Ross’s “essential parent-child privilege” and adverse testimony privilege ensure the protection of family privacy and relationships as well as the viability of children’s Fifth and Sixth Amendment rights.