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Should “every man’s evidence” include Mom and Dad’s?

The need to present all relevant evidence at trial must be weighed against the importance of preserving parent-child relationships.

Photo by Victoria Hazou (Flickr)

This article is the first in a three-part series on the existence of a “parent-child privilege” in criminal cases.

If a child privately seeks advice from his or her parent regarding a criminal act, should the government be allowed to force the parent to disclose the facts revealed during that seemingly private communication?  What if that information were highly material and relevant to the criminal investigation of the child?

Parents and their children have historically enjoyed a privilege in many parts of the world at least since the inception of Jewish and Roman laws.  Even the Universal Declaration of Human Rights prohibits “arbitrary interference with [one’s] . . . family[.]”  Some countries that have recognized the parent-child privilege include Scotland, France, Germany Sweden, the Netherlands, and Australia.  The privilege is most popular in civil law countries.

The parent-child privilege is less established in the United States.  The Federal Rules of Evidence and a majority of the states, including North Carolina, do not recognize such a privilege.  As such, a parent or child may be compelled to testify against the other.  Does this forced disclosure destroy the trust in their relationship and encourage defiance?  Should society place a higher value on the parent-child bond by favoring a confidential boundary in the extent and manner of a forced disclosure?

A privilege must be strictly construed because it contravenes with the “fundamental principle that ‘the public . . . has a right to every man’s evidence.’”

Federal Rule of Evidence 501 establishes that testimonial privileges are to be governed by“[t]he common law — as interpreted by United States courts in the light of reason and experience . . . unless any of the following provides otherwise: the United States Constitution, a federal statute; or rules prescribed by the Supreme Court” (emphasis added).

Testimonial privileges are important to balance the public’s right to every man’s evidence with the protection of certain socially beneficial relationships that rely on secure confidences.  The U.S. Supreme Court has already held that the following relationships are privileged: marital, attorney-client, psychotherapist-patient.  Approximately nine states currently recognize some form of the parent-child privilege.

The first balancing interest was analyzed by the Supreme Court in Trammel v. United States, acknowledging that a privilege must be strictly construed because it contravenes with the “fundamental principle that ‘the public . . . has a right to every man’s evidence.’”  On the other hand, the Court also cautioned casting aside a privilege that affects family relationships, as they are already subject to so much erosion.

The U.S. Department of Justice Manual instructs that federal prosecutors should consider “whether the witness is a close family relative of the person against whom the testimony is sought” before requesting immunity for a witness.  Although prosecutors generally try to avoid compelling a testimony against a family member, the manual is not primary law so prosecutors are not required to follow its instructions.

Laura Tonch, Former Senior Staff Writer/Ethics
About Laura Tonch, Former Senior Staff Writer/Ethics (18 Articles)
Laura Tonch served as the Ethics Staff Writer for the Campbell Law Observer. She is a graduate of the University of Michigan where she earned a degree in General Business with a concentration in Pre-Law and a minor in Psychology. After her first year of law school, Laura studied abroad in Vienna, Austria to study Comparative Civil Liberties through Wake Forest University School of Law. She interned for the NC Department of Justice, Transportation Section during the summer of 2014. Laura graduated from Campbell Law School in May 2015.
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