This article is the second in a three-part series on the existence of a “parent-child privilege” in criminal cases. You can read Part One here.
The second balancing interest regarding the protection of a parent-child relationship is given further insight by the history of the parent-child privilege, constitutional protections, and by similar privileges currently recognized by the U.S. Supreme Court.
The Fourteenth Amendment states that “[n]o state shall make or enforce any law which shall abridge the privileges . . . of citizens of the United States; nor shall any state deprive any person of . . . liberty . . . without due process of law” (emphasis added). In 1977, the Court in Moore v. City of East Cleveland explained that “liberty” under the Due Process Clause of the Fourteenth Amendment shelters family autonomy; more specifically, “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.”
The Supreme Court also recognizes the constitutional limit on the extent to which a state may interfere with parents’ upbringing of their children. The 1923 ruling of Myer v. Nebraska recognized the constitutional protection of the “liberty” guaranteed by the Due Process Clause of the Fourteenth Amendment encompasses the “right of the individual to . . . establish a home and bring up children[.]” In 2000, the Court stated in Troxel v. Granville, “the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
The social interest in the parent-child privilege is at least as strong as the marital and other commonly recognized privileges. The Supreme Court recognized the marital privilege in Trammel v. United States because to preserve the sanctity of the marital relationship in consideration of the “important public interest in marital harmony,” spouses cannot be judicially compelled to testify against each other against his or her will. In Jaffee v. Redmond (1996), the Supreme Court also accepted the need for a psychotherapist-patient privilege when that relationship requires “an imperative need for confidence and trust.” Finally, the Supreme Court comparably acknowledged that the need for “full and frank communications between attorneys and their clients” supports the promotion of “broader public interests in the observance of law and the administration justice” in Upjohn Co. v. United States (1981).
The parent-child privilege similarly supports the social benefit of preserving family sanctity by having strong familial relationships with free communication and trust. In In re Agosto (1983), the Supreme Court stated that “the parent-child relationship exhibits similarities not only to the spousal relationship, which is based upon love and affection, but to the psychotherapist-patient relationship, which is based upon the guidance and ‘listening ear’ which one party to the relationship provides to the other party.” In balancing a the testimonial privilege, the U.S. Court of Appeals for the Fourth Circuit demonstrated in United States v. Dunford (1998) a recognition of important interests favoring the parent-child privilege.
There may be much to support a testimonial privilege in connection with the testimony for or against a minor child to preserve the family unit which is so much under stress in today’s society. The tangible and intangible benefits of keeping families intact often seem to be forgotten in today’s willingness to enact laws that readily authorize the fracture of the family or that provide incentives for doing so.