Parent-Child Privilege: Constitutional Right or Specious Analogy?

Abstract

To avoid reaching incorrect verdicts as a result of insufficient evidence, courts generally require witnesses to testify to all relevant facts within their knowledge. Two important exceptions to this general rule, 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. To promote extrinsic public policies, however, privileges excuse competent witnesses from providing what may be highly probative and reliable evidence. In the past decade there have been calls for legislative or judicial recognition of a parent-child privilege, similar to the marital privilege, that would excuse parents from testifying against their offspring. In contrast to the virtually universal recognition of the marital privilege, however, among common law jurisdictions only Idaho recognized a parent–child privilege until a New York appellate court did so on federal constitutional grounds. 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 ananalysis 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.