Do You Swear to Tell the Truth, the Whole Truth and Nothing but the Truth Against Your Child?

March 22, 2011

It may be surprising to even this expert audience to learn that in 45 states and in federal court the government can compel testimony about communications and observations between a parent and his/her child. Only Connecticut, Minnesota, Idaho, Massachusetts, and New York have a privilege that bars a parent or child from being forced to divulge confidences or testify against the other. There are accounts of parents compelled to testify against their children, some of which have resulted in parents going to jail as a result of their refusal to betray their child’s trust.  

The juvenile justice system assigns parents important functions, not unlike those assumed by an attorney. The law encourages parents to be present before a custodial interrogation in order to advise the child as to whether he should speak to police. In most jurisdictions parents are mandated to be present at all proceedings, and many courts require parents to sign off that they are informed as to the plea arrangement upon which their child has agreed. Parents routinely function as counselors to their children, helping them make important legal decisions. In many instances children waive their right to counsel and parents, satisfactorily or unsatisfactorily, perform many of the functions that would otherwise be fulfilled by a lawyer. Empirical research indicates that when a parent does not feel that the circumstances warrant retaining a lawyer for the child, children overwhelmingly waive counsel.  

Every existing legal privilege applies to relationships characterized by trust and confidentiality. Federal common law recognizes privileges between lawyers and client, spouses, psychotherapists and patients, clergy and penitent and states have expanded the list with privileges for persons such as, domestic violence counselors and journalists. Community values are reflected in the relationships the law recognizes as deserving of a legal privilege. Could there be any question that parents provide guidance, nurturance, and advice that closely parallels, perhaps even surpasses, the role of an attorney, psychotherapist, or spiritual counselor? The reality that the information shared between the parties is not legally protected from government intervention would constitute an unpleasant shock for most parents. Indeed, it is worthwhile to question whether the absence of a testimonial privilege between parents and children is sensible and fair in a society that places great emphasis on the importance of strong parent-child relations. 

 

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