Parent-Child Privilege

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Must a parent testify against his or her child when called as a witness? Conversely, must a child testify against his or her parent? The answer depends on whether there is a parent-child privilege.

No North Carolina case, statute, or rule. I couldn’t quickly find a North Carolina case or statute on point. So I don’t think that there’s a statutory privilege, and I don’t think our appellate courts have ruled on whether there is a common law privilege. Evidence Rule 501 concerns privileges, but it just says that questions of privilege should be determined in accordance with state law. It doesn’t attempt to list or define the permitted privileges.

Recent Fourth Circuit case. Yesterday, the Fourth Circuit decided a case on point. In Under Seal v. United States, __ F.3d __, 2014 WL 2699722 (4th Cir. June 16, 2014), the Government suspected a man of growing drugs in his home and of possessing illegal firearms, including automatic weapons. It subpoenaed his 19-year-old son, who lived with him, to testify before a grand jury. The son moved to quash the subpoena, arguing that he should be allowed to refuse to testify based on the parent-child privilege. Forcing him to testify, he contended, would create the perception that he was responsible for his father’s prosecution. He argued that “[t]he damage to the father-son relationship [would be] as certain as it is incalculable.” The district court agreed, ruling that a parent-child privilege should be available on a case-by-case basis and that the child in this case should be allowed to claim the privilege because he was relatively young and was financially dependent on his father.

The Fourth Circuit ruled that no such privilege should be recognized in this case. First, it noted that privileges should not be recognized easily, as they conflict with the principle that the law is entitled to every person’s evidence. Second, it observed that while a few state courts and federal district courts have recognized such a privilege, no federal court of appeals has done so while several have rejected it. Finally, it pointed out facts of this case that undercut the claim of privilege, including that the witness is an “adult college student” rather than a young child, and that the witness and his siblings might be at risk from the father’s allegedly illegal activities. The court left the door open to the possibility of recognizing the privilege in a future case with more favorable facts.

Further reading. Those interested in learning more about this issue might consider reading Maureen P. O’Sullivan, An Examination of the State and Federal Courts’ Treatment of the Parent-Child Privilege, 39 Cath. Lawyer 201 (1999) (collecting authorities; acknowledging that most courts in the United States have not recognized the privilege; noting that some other countries do recognize it; and arguing that the rationale for a such a privilege is at least as strong as that for a priest-penitent privilege and other accepted privileges). This ABA article suggests that only four states have recognized such a privilege, but it is an older piece so it may or may not be accurate today.

Additional thoughts. Based on the foregoing, my guess is that a claim of parent-child privilege would face an uphill battle in North Carolina. The claim would be strongest if the case involved a minor child who lived with and was dependent on the parent, and if the criminal activity under investigation did not pose a threat to the child’s safety or well-being. The claim might also be more likely to prevail if the evidence sought concerned a communication between the parent and child that arguably was based on the closeness of the relationship. Communications from the child to the parent might be more likely to be protected than communications from the parent to the child. Cf. Minn. Stat. 595.02(j) (providing that “[a] parent or the parent’s minor child may not be examined as to any communication made in confidence by the minor to the minor’s parent.”).

If you have litigated this issue or have thoughts about whether such a privilege should be recognized, and under what circumstances, please post a comment.

3 comments on “Parent-Child Privilege

  1. As a former child advocate I would also like to see information regarding and/or studies on the psychological trauma and affect of children being forced to testify against their parent especially in a criminal case.
    Great article!

  2. The blood and social relationship between a child and parent is in my opinion even more sacred than between priest and penitent, and no court should be able to pit children of any age against their parent(s). The pursuit of a pot bust, even if guns were in the home, is not of such importance so as to undermine and destroy a lifelong bond of love and trust.

    Why could the child not be able to use his 5th amendment privelege due to the fact that if the prosecutors used his purported knowledge of illegal activity at the home as the basis to charge him? Even offering immunity for testimony about Dad cannot erase the stigma of having ratted out your own father..in some neighborhoods just the label of a snitch might be enough to cause violence against the child. Entire families torn apart, hatred where love once existed..these are the fruits of ignoring family privelege. What is gained? One more headline for the DA, no impact on the availability of the product allegedly being grown and no one protected from the predators and thieves that are walking around free due to the time wasted on a pot grow..sad state of affairs indeed.

    I would hope that any child pressured to testify against his will against his parent would simply take the jail time for contempt..they have to let you go when it is clear that jailing will not compel testimony..and keep his honor and his duty to protect him family. Some things are just worth preserving, like families..some other things, such as prohibition laws and abandonement of the respect for familial loyalty, do not ned preservation, but condemnation.

  3. As an afterthought, if the government has so little evidence, nothing but ‘ suspicions ‘ that it has to resort to coercing blood relations to become informers, they risk the inevitable; The child ordered to attend the grand jury will of course tell Dad..and IF there was actually a grow or guns at the house can you imagine how fast old Dad would be tearing down and getting rid of? No one would be stupid enough ( well, there is always the exception to the rule..we have all met an absolute moron) to ignore a grand jury subpoena for one’s child ..it is the ultimate tip off courtesy of Uncle Sam’s agents not being able to substantiate their ” hunches ‘ and ” inchoate suspicions ” well enough to convince a judge that probable cause existed.

    Advice to parents: If one of your kids gets a subpoena to appear before a grand jury, and if you are engaged in activities that the political cabals consider worthy of criminalizing, make sure that whether your kid talks or not that you are ready for a visit from the jackbooted, sledgehammer/flash bang brigades in the near future. Thank your lucky stars that the powers that be were so desperate to make a case on you that they risked alerting you to do so. And, from now on, keep your proscribed activities out of your home, and don’t involve your kids..that is the kind of disregard for common sense and decency that gets well deserved scorn and punishmenht should you get caught. Use a near miracle like a gov’t. tip off as a chance to clean up your act, preserve your family and avoid the sure consequences that will follow if you don’t clean it up: sooner or later the odds are that you will get busted if you are allowing anyone, anyone..to know about your business. Cops hve long memories, and hate it when someone slips away from them..they will be watching and waiting..so make careful choices about what to do for a living.

    To children of parents possible engaged in illegal activities: You may be put in a position to have to testify against a parent regarding what you may know or have seen at home or elsewhere. Even if you were not involved and could do nothing about it, the government may order you to tell the truth, and will punish you if you do not. If you refuse, the judge has the power to place you in a cage, a jail cell, until you decide to cooperate.

    Only you can know if you should reveal family secrets and to assist the government in convicting your parents and possible jailing them. It is a very tough choice. If you do testify and it causes your parent to go to prison, maybe for a long time, it is possible that your relationships with your family could be made difficult. each family is different, so only you know if your family would be supportive of your testimony or if they would , for whatever reason, blame you for your parents troubles. This seems unfair, and it is. No child of any age should be forced to abandon the most basic and primal instincts , but in our system it is legal to do this to you. The decision you make on this will have great impact on your life no matter which way you choose..make a decision you can live with, and that will be the right one.

    If the government cannot gather enough evidence without destroying families, they should consider dropping the matter until they do have something of substance..it may be easy to attack and pressure the family, but is it worth it? Not really..not in the big picture.

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