Document Type

Article

Publication Date

2010

Abstract

Currently in the United States there is no federally recognized parent-child privilege. The U.S. Supreme Court has never granted certiorari in a case involving the 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. Scholars have written about the social policy implications caused by the lack of parent–child privilege. In spite of these thoughtful policy-based arguments, neither Congress nor forty-six state legislatures have responded by recognizing even a limited form of a parent-child privilege. This Article singles out one specific context – 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. In an effort to contextualize the socio-legal problem and the solution, this Article 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 singles out the importance of parent-child communications in light of the biological and psycho-social differences between adolescents and adults and links these findings to the argument that a juvenile’s right against self-incrimination requires the 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.

Comments

Originally published in the Loyola of Los Angeles Law Review at 43 Loy. L.A. L. Rev. 551 (2010).

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