To Testify or Not to Testify: A Comparative Analysis of Australian and American Approaches to a Parent-Child Testimonial Exemption
Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the only common law country to restrict the compellability of parents and their children testifying against one another in a criminal proceeding. The 1995 Evidence Act in Australia first recognized a parent child exemption as it applies under federal law. Two of the six Australian states have statutorily created parent-child testimonial exemptions that pre-date the Australian federal law.
This article adopts a comparative approach toward the promotion of the legal and social utility of a testimonial exemption for parents and their children. The Article will contrast Australia’s widespread acceptance of a parent-child exemption with the general rejection of the privilege in the United States. Although the Australian and American juvenile justice systems were born at virtually the same time, there are significant differences in their approaches to the treatment of youth. Australia’s model for dealing with the transgressions of its youth can be characterized as a community based restorative approach. The emphasis is away from a formal adjudication and toward proceedings that can be characterized by a degree of informality. On the other hand, over the last forty years the American juvenile justice system has evolved into a retributive system, with an emphasis on deterrence and incapacitation. Zero tolerance policies, waivers for transferring youth to the adult criminal court and greater numbers of youth in detention evidence a paradigm shift in America’s treatment of its youth. Throughout the juvenile justice system in the United States, due process is central to the adversarial nature of the proceedings. The differences in these two paradigms explains, in part, why Australia recognizes the need for an exemption for parents and children, while the majority of the states in the United States have not. The Australian experience suggests important ways in which the American legal system can support the parent-child relationship.
Hillary B. Farber, "To Testify or Not to Testify: A Comparative Analysis of Australian and American Approaches to a Parent-Child Testimonial Exemption", 46 Tex. Int'l Law Journal ___ (forthcoming 2010)