Currently in the United States forty-five states and the federal system do not recognize an evidentiary parent-child privilege. The United States Supreme Court has never granted certiorari in a case involving recognition of a parent-child privilege. For many, it is a revelation to learn that the government can compel testimony about communications and observations between parents and their children. A rights-based argument in favor of a parent-child privilege has not been articulated before in legal scholarship. This paper singles out one specific context, the prosecution of juveniles, and argues that such a privilege is essential in order to ensure children the due process protections guaranteed to them under law. The juvenile justice context is the most persuasive case for a parent-child privilege because it implicates both the due process rights of minors and the most compelling social policy interests at stake.
In an effort to contextualize the socio-legal problem and the solution, this paper provides a historical overview of privilege law in the United States and compares the parent-child relationship to relationships that are protected by an evidentiary privilege. It highlights the importance of parent-child communications in light of the biological and psycho-social differences between adolescents and adults as discussed in Roper v. Simmons, and links these findings to the argument that a juvenile’s right against self incrimination requires recognition of a parent-child privilege. An exploration of antecedents in comparative law traditions reveals that the United States lags behind other developed nations when it comes to rules that shield family members from acting as witnesses against one another.
Available at: http://works.bepress.com/hillary_farber/4/