State and federal law recognizes some form of a spousal privilege that precludes spouses from revealing communications between the two. The spousal privilege’s purpose is to foster the marital relationship that would surely deteriorate if one spouse revealed the other’s confidential communications. But what about an evidentiary privilege that precludes discovery or testimony about a child’s confidential communications with a parent? Would the same purpose–promoting the parent-child relationship–not apply?
In her excellent article, The Mother’s Day Column: Parent-Child Evidentiary Privilege in Montana?, Montana Lawyer, p. 13 (May 2014), Professor Cynthia Ford tells us that most state and federal courts reject a parent-child evidentiary privilege. Professor Ford identifies a few federal district court opinions adopting the privilege, but notes that these are clearly in the minority. And a practical issue may prevent this issue reaching decision points–even with no privilege, most lawyers choose not to call parents to testify against their children (or vice versa) because of the assumption that they will likely refuse to testify truthfully.
While the article limits its case review to Montana and the 9th Circuit, it is worth the read for lawyers supporting or opposing the privilege’s adoption. My thanks to Professor Ford and the Montana Lawyer for granting permission to link the article in this post.