St. Mary's Law Journal
A popular move to recognize and codify a parent-child privilege has surfaced, despite rejection by a majority of the courts that have considered the issue. Reminded of the horrors accompanying totalitarian systems that require children to testify against their parents, some commentators have asserted that adoption of such a privilege will promote the success of the family relationship in this country and avoid the trauma of family members testifying against each other at trial.
The momentum for adopting a parent-child privilege seems to have been generated by a few courts and a number of commentators who see the privilege as an important protector of the family unit. The best constitutional argument proponents have been able to muster is the implicit right to privacy which, to date, has been granted limited application by the United States Supreme Court. The proponents' strongest support for their contention is that dicta and implications of right to privacy decisions favor establishment of a constitutional right to family privacy. What the proponents of the privilege fail to address is the fact that aside from the privilege against self-incrimination, the Court has not recognized a specific constitutional right to any particular testimonial privilege.
Even assuming a parent-child privilege is supported by the proponents' myriad arguments, there remains the problem of drafting a parent-child privilege that recognizes the delicate balance between the interests of the parent and child and the public's right to reliable evidence. Unless a parent-child privilege is narrowly-tailored, it will soon become a much broader and entirely useless "family" privilege.
David A. Schlueter, The Parent-Child Privilege: A Response to Calls for Adoption, 19 St. Mary’s L.J. 35 (1987-1988).