University of Baltimore Law ForumVolume 15Number 2 Spring, 1985 Article 7

1985

The Child-Parent Testimonial Privilege, the Courtsand a Statutory AlternativeChristopher N. Luhn

Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf

Part of the Law Commons

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.

Recommended CitationLuhn, Christopher N. (1985) "The Child-Parent Testimonial Privilege, the Courts and a Statutory Alternative," University of BaltimoreLaw Forum: Vol. 15 : No. 2 , Article 7.Available at: http://scholarworks.law.ubalt.edu/lf/vol15/iss2/7

1. INTRODUCTION

The Appellate Division of the New York Supreme Court has held that the right to privacy protects "confidential communications" from a child to his parents. 1 In so holding, the court expressed concern over the policy implications of allowing the state to "compel parents to disclose information given to them in context of [a familial] confidential setting."2 Although the court based its holding on constitutional grounds, it effectively adopted a testimonial privilege3 unique in this country's jurisprudence.4 Whether this so-called "parent-child privilege" will gain general acceptance in other jurisdictions or is merely an aberration found primarily in the New York courts5

is not yet clear.6 This article examines the historical

bases and the relevant policy arguments which underlie testimonial privileges in general, and those which relate to the parent-child privilege in particular. Special attention is devoted to recent case law on the subject. Lastly, the author proposes a model statute which would extend a limited chitd-parent7

12-The Law Forum/Spring, 1985

testimonial privilege to a narrowly defined class of claimants. II. TESTIMONIAL PRIVILEGES IN GENERAL

One commentator has recently classified privileges into "three distinct types," including those designed to protect individuals against unlawful government intrusions (as in the case of compelled self-incrimination) and those which "protect the maintenance of our Government" (as provided by the protection from unlawful disclosure which is afforded government secrets). 8

This article, however, is concerned with the third "type" of privilege; that is, privileges "designed to be a 'significant expression of the law's concern or regard for the security of the individual as a participant in relationships which the state considers it important to foster and protect and ... for the security and sanctity of the relationship itself. "'9

In recent decades, testimonial privileges of this latter type have proliferated in number far beyond those found at common law. 10 The earliest common law privileges addressed the values and concerns of society and law makers in a somewhat imprecise

manner. Dean Wigmore observed, for example, that a "gentlemen's honor" and "one's pledge of privacy" were reason enough at one time to claim privilege from giving testimony. 11 Thus, while the goal of these privileges may have focused on the interest of the communicating parties in maintaining the integrity of the communication to the extent that it was private, the privilege was so ill-defined as to be unworkable. 12

The English courts soon came to recognize that privileges against compelled testimony presented obstacles to the essential truth gathering function of the court. As a result, the firm rule was established that "[N]o pledge of privacy nor oath of secrecy can avail against a demand for the truth in a court of justice." 13 It was reasoned that society has a "right" to evidence which enhances the quest for truth, and that the right to that truth is vindicated by the imposition of a "duty" upon each member of society to tell what he knows. 14 Consequently, the maxim that "[ t ]he public ... has a right to every man's evidence"15 prevailed.

Like the privileges found at common

The Child-Parent T estintonial Privilege, The Courts and a

Statutory Alternative

law, modern testimonial privileges have devolved more from societal concerns than from any strictly legal theory. In contrast to the common law, however, it is no longer axiomatic that "[ w ]hen the course of justice requires the investigation of the truth, no man has any knowledge that is rightly private." 16 Modern society requires effective interaction among its members if it is to function successfully. If one accepts that effective interaction between communicants is enhanced by openness and the absence of fear of unwanted disclosure,17 certain relationships are indeed "rightly private." Because society benefits from certain confidential (and "rightly private") interaction, testimonial privileges are employed to foster particular relationships on the theory that the benefits to society outweigh the cost exacted by their operation.

Current testimonial privileges act to prevent disclosure of confidential communications between individuals within the context of the protected relationship. Where a valid basis for a privilege is presented, it falls to the opponent of the privilege to demonstrate that the privilege does not apply.18 But, because they hamper the "truth-seeking function of legal proceedings," 19 testimonial privileges are construed strictly by the courts when their operation is asserted.2°

It is clearly established that only "the person vested with the outside interest or relationship fostered by the particular privilege" may claim its benefits to the extent that the privilege acts to preserve confidences. 21 In the case of "professional privileges" (i.e., those privileges other than the husband-wife privilege)22, the privilege may be asserted only by its "owner. "23 Circumstances which tend to indicate that a legitimate expectation of

by Christopher N. Luhn

confidentiality is held by a communicant otherwise entitled to claim a privilege, thus entitles him to assert the claim. 24

With the exceptions of the husband­wife25 and the attorney-client 26 privileges which appeared at common law,27 present testimonial privileges generally are statutory in origin; and, excepting the husband-wife privilege, all are designed to encompass the personal associations entered into by professionals in the conduct of an avocation. Although some states recognize privileges not recognized by others, many states have extended recognition to the physician-patient,28 cleric-penitent,29 psychotherapist­patient,30 accountant-client,31 social worker-client,32 and newsperson33

privileges. The generally acknowledged test for

validation of testimonial privileges consists of four criteria proposed by Dean Wigmore. 34 He argued that a communication is entitled to recognition and affirmative sanction only when the following are evident:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

( 4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal litigation.35

Wigmore himself pointed out that

two of the generally recognized privileges did not meet all four criteria. He asserted that recognition of the doctor-patient privilege, in particular, rests on the fallacious assumption that the second and fourth conditions are "generally present. "36

Of greater difficulty to Wigmore was the husband-wife privilege. The principal argument against that privilege is that the fourth condition is not met insofar as "the occasional compulsory disclosure in court of even the most intimate marital communicatons [will] not in fact affect to any perceptible degree the extent to which spouses share confidences."37 Nevertheless, Wigmore asserted that "since the other three conditions are so fully satisfied and since the compulsory disclosure of marital secrets at least might cast a cloud upon an essential aspect of the institution of marriage, the present privilege should be recognized. "38

If shared confidences are indeed among the "essential aspect[ s J" of the marital relationship, and if the relationship between parents and their children flows directly from and adheres to the marital relationship, it is proper to inquire whether the same "aspects" appear in the parent-child relationship itself. If it is determined that they do appear, there can be little doubt that the underlying rationale for a testimonial privilege involving confidential communications between children and their parents is established, at least to the extent that such rationale is in conformity with Wigmore's "essential aspect" rationale supra. 39

Christopher N. Luhn is a recent graduate of the University of Baltimore School of Law.

Spring, J985/The Law Forum-13

III. THE "PARENT .CHILD PRIVILEGE" AND THE COURTS

A. The New York Cases As indicated at the beginning of this

article,40 the Appellate Division of the Supreme Court of New York has had occasion to consider the question of the so-called 'parent-child privilege.'41 In Application of A & M the court reached its landmark decision on the basis of the constitutional right to privacy42 and on public policy considerations involving the desirability of curtailing the intrusive power of the state. 43 In a stirring colloquy the court declared:

If we accept the proposition that the fostering of a confidential parent-child relationship is necessary to the child's development of a positive system of values, and results in an ultimate good to society as a whole, there can be no doubt what the effect on that relation­ship would be if the State could compel parents to disclose information given

compel their testimony before a grand jury regarding the alleged admissions. 46

The subpoena was quashed on motion by the parents, apparently on two grounds: (1) that the marital privilege encompassed a parent-child privilege;47 and, (2) that a constitutional right of privacy extended to confidential intra­family communications.48 On appeal from the order to quash the subpoena, the New York Appellate Division, Fourth Department, reversed the Trial Term on other grounds49 but held, inter alia, that the rights of privacy protected the confidential communications made by a minor child to his parents "under some circumstance. "SO

In A & M the court was not confronted with the issue of "ownership" of the privilege asserted. 51

In remanding the case the court confined its directions to the factual context involved, applying a balancing test between the 'legitimate [state] interest in the process of fact-finding necessary to discover, try and punish criminal behavior"52 and the legitimate expectation of privacy vested in the

Surely the thought of the state forcing a mother and father to reveal their child's

alleged misdeeds is shocking to our sense of decency, fairness and propriety.

to them in the context of that confidential setting. Surely the thought of the State forcing a mother and father to reveal their child's alleged misdeeds, as confesed to them in private, to provide the basis for criminal charges is shocking to our sense of decency, fairness and propriety. It is inconsistent with the way of life we cherish and guard so carefull y and raises the specter of a regime which encourages betrayal of one's offspring.44

In A & M a sixteen-year-old youth was believed by prosecutors to have made voluntary admissions to his parents within the privacy of their home regarding an arson fire at a nearby college campus. 45 Acting on reports by witnesses that the boy was seen in the area of the fire, a local district attorney sought to subpoena the boy's parents to 14-The Law Forum/Spring, 1985

youth and his family.53 The court noted that it may be necessary for a trial court to conduct additional evidentiary hearings54 and it set forth three criteria which must be met before a communication from the child to his parents is entitled to the privilege. 55 The communication must have been (1) made by the minor 56 child,57 (2) "in the context of the familial setting,"58 and, (3) within the context of an appeal for "support, advice or guidance ... ."59 If these criteria were met the court concluded, "the interest of society in protecting and nuturing the parent-child relationship is of such overwhelming' significance that the State's interest in fact-finding must give way."60 Thus, despite an express acknowledgement by the court that the adoption of new privileges is an exclusively legislative function,61 the court in A & M effectively "created" a new testimonial privilege. 62

It is unfortunate that the A & M court did not address the issue of privilege in a

more direct manner. While there can be little doubt that the court intended that the foregoing criteria apply beyond the context of the case before it, the court failed to adequately define the parameters of the privilege it had created. Instead, in a later footnote the court indicated that its "discussion encompasse[ d] cases only in which all family members seek to preserve the confidentiality of the communications. "63 This vague caveat was surely intended to narrow, not broaden, the scope of inquiry; however, if such was the court's intent, it accomplished the opposite result by its failure to anticipate and resolve such issues as whether the privilege may be maintained when the communication occurs in the presence of siblings or other "family members," whether those who join in asserting the privilege are required to be present at the time the communication is made,64 and, whether the assertion of the privilege may be defeated when one of the parents to whom the confidential communica­tion is made wishes to disclose the communication in the honest belief that disclosure is in the best long-term interest of the child. 65 It would appear, then, that despite the otherwise adequate limitations of the three criteria set forth by the court,66 its failure to define the scope of its holding encouraged disparate application of the holding by other courts.

Diverse application of the A & M holding was clearly evident when, less than two years after that decision, a Westchester County (New York) court had occasion to consider the issue of the parent-child privilege in People v. Fitzgerald. 67 The two cases were similar in that both involved allegedly confidential communications from a child to his parent(s), and involved communications made for the apparent purpose of obtaining support, advice and guidance from the parente s). The principal factual distinction between the two cases was the ages of the children involved.

In Fitzgerald, the father of a twenty three-year old man sought to suppress the testimony given by the father before a grand jury which was investigating the hit-and-run killing of a teenage gir1.68 The son had discussed the matter with his father two days after the accident and the father had subsequently testified under subpoena before a grand jury as to the details of the conversation. 69 On a motion by the defendant's father to preclude the substance of his testimony before the grand jury which related to the conversation with his son, the court

found that "[a 'parent-child' privilege] can and does exist, grounded in law, logic, morality and ethics"70 and that the conversation involved a "confidential communication" between the defendant and his father. 7l The court then ruled that the State was precluded "from compelling disclosure from the father on such matters."72

The Fitzgerald court believed it was confronted with "a classic example for the application of a parent-child privilege"73 and held that the privilege applied regardless of the age of the child. 74 The court noted the three criteria set forth by the A & M court, but rejected the limitations sought by the State as to age, declaring "[ t ]he mutual trust and understanding ... between the parent and the child cannot be made subject to the intrusion of the State merely because of a proposed artificial barrier of age. "75

In rejecting age as a factor for application of a parent-child privilege, the Fitzgerald court analogized the privilege to the husband-wife privilege. 76 The court noted that the husband-wife privilege is mutual in that "[b ]oth parties ... must consent to divulgence of confidential communications between them. "77 The court reasoned that the interests which underlie the marital privilege also adhere to the entire familial setting insofar as "the family relationship forms a common bond wherein the interests of the parties are similar .... "78 Thus, the court held, inter alia, where the confidential communications79 occur between a parent and a child within the context of the familial setting, and are "intended by both parties for the purpose of obtaining support, advice and guidance, "80 the communications themselves are privileged and their disclosure may not be compelled when either party asserts the privilege.8l

The holdings of the A & M and Fitzgerald courts are similar as they relate to the viability of a parent-child testimonial privilege; however, as applied, the factual context- of the two cases and the manner in which the courts resolved the issues before them renders the decisions wholly incompatible. A & M involved an unemancipated minor child82 who apparently was not under indictment,83 but was merely a possible target of a grand jury investigation into a crime.84 In Fitzgerald, the communicant was emancipated, an adult, and was a defendant in a criminal action. 8s

Further, in A & M the parents of the child sought to invoke the privilege for the purpose of avoiding altogether a

subpoena to appear before a grand jury.86 Fitzgerald involved a motion to suppress testimony voluntarily given before a grand jury by the parent of an adult defendant.87 Although it was not a significant issue in either of the two cases, the communicant in Fitzgerald was a co-petitioner with his father in asserting the privilege.88

Finally, the divergence of the opinions in these two cases illustrates a principal rationale for the rejection by the courts of invitations to create new testimonial privileges. Arguably, the decision in Fitzgerald resulted from a combination of inadequate analysis on the part of the A & M court89 and erroneous reliance on the arguments of trial counsel. 90

In light of the foregoing, it is clear that the "state of the law" in New York is at best uncertain regarding the question of whether a de facto parent-child privilege exists in that State, and under what circumstances it applies. It is also arguable that Fitzgerald is, at best, dubious authority,9l particularly when considered in isolation. Thus, it appears that A & M must neccesarily be

... [c ]onfidential communications between family members have not yet been afforded the status of testimonial privilege. "98

The court considered this failure to recognize a familial privilege as anomalous in view of its conclusion that many of the existing privileges "have common elements [ w ]hich are socially desirable" and which are analogous to the parent-child relationship.99 By way of illustration the court compared the attorney-client, husband-wife and pschotherapist-client privileges, noting that these privileged relationships are "socially desirable" and that they require confidentiality among communicants. IOO

Refering to the husband-wife privilege in particular, the court noted that despite arguments against its continued operation, "[its] continued vitality indicates a legislative and judicial determination that invading the privacy of the marital relationship is simply too high a price to pay for the possible benefits of compelled disclosure. "lOl The court expressed a similar view of the

A limited child--parent testimonial privilege is highly desirable and is legally and morally supportable.

confined to its factual setting while the question awaits further clarification by the New York courts.

B. In reo Agosto: A Federal Court View The parent-child privilege has been

recognized by the United States District Court for the District of Nevada.92 In a lengthy opinion the court declared that "a parent's liberties are inseparable from those of his children"93 and held that a child and his father were entitled to claim the privilege mutually and independently94 when the child's testimony was sought for presentation before a grand jury.9S The court also adhered to the position taken by the Fitzgerald court that age could not be a factor in determining whether to extend the privilege.96

Preliminary to its discussion of the case on the merits the court surveyed the existing testimonial privileges and how they related to the parent-child privilege.97 The court observed that, despite the "[recent] expansion of [testimonial] privilege[ s] protecting communications between professionals and lay persons in a wide variety of fields

parent-child privilege insofar as the privilege "is necessary to protect and preserve the family harmony and prevent dissention [within the family unit],,102 despite its concededly adverse effect on the truth-gathering function of the court. Thus, the court's support of this new family-based privilege rested, at least in part, on an apparent belief that the privilege was supportable on the basis on broad social policy, that society itself promotes certain relationships as inherently desirable and valued, and that the occasional loss of valuable evidence is an acceptable cost of this expression of society's will. 103

The court related the broad social policy issues supra to protections afforded under the Constitution and concentrated on the need to protect and foster "'family autonomy"104 in the face of occasional competing State interests. !Os Like the A & M and Fitzgerald courts before it, the Agosto court also found support for the privilege in the Constitutional right of privacy,106 and noted the words of Justice Brandeis who declared that '''as

Stning. 1985 !Th" Law Forum-15

against the Government, the right to be let alone - [is] the most comprehensive of rights and the most valued by civilized men. "'107 The court thus concluded that recent Supreme Court treatment of privacy issues associated with the family setting (t demonstrate[ s] that the Supreme Court has determined that there is a 'private realm of family life which the State cannot enter."'108

The court concluded that the parent­child testimonial privilege satisfied the first three of Wigmore's conditions 109

supra for recognition of a privilege, but that resolution of the fourth condition, "[ whether] [t ]he injury that would inure to the relation by the disclosure of the communication [would] be greater than the benefit thereby gained for the correct disposal of litigation," 110 presented a more difficult problem. In the opinion of the court the difficulty arose 'because this component requires a balancing between the benefit to Ijustice ... as opposed to the injury to the parent-child relationship." III

The court expressed the view that the forced disclosure of confidential communications between a parent and a child would lead to a "breakdown of the trust" between them. 112 The court believed this "breakdown" would cause "the child [to] view the entire legal system [with suspicion] ... [and that] [t]he parents themselves might lose respect for the legal system, if forced to testify against the child." 113

According to the court, the legal system itself would suffer a detrimental effect if parents were compelled to testify against their children. Specifically, the court expressed the view that such compulsion would lead to perjured testimony by witnesses who would attempt to protect one another. 114 While the court acknowledged that the witness may, of course, elect to tell the truth, it opined that it was highly likely that circumstances would effectively leave witnesses only the choice between commlttmg perjury or subjecting themselves to possible contempt proceedings for refusing to testify at all. liS The court concluded that the expected benefit to society brought about by the recognition of the parent­child testimonial privilege outweighed the benefit to justice because, inter alia, "the expected benefit to justice ... is perhaps illusory."116

Finally, the court noted that it was "free to extend the present law of privileges to deal with those situations encountered in which constitutional protection is deemed essential." 117 The 16-The La\\' Forulll Sf))"!"/!" 1'N6

court premised the foregoing view not on the Constitution per se, but on "[t]he expansive posture taken by Congress"118 in drafting Federal Rule of Evidence 501.119 The court observed that the history of Rule 501 clearly indicated that Congress intended for the courts to remain free to recognize new testimonial privileges. Because Congress had rejected an Advisory Committee proposal which narrowed some existing privileges while completely abrogating others, the court concluded that "Rule 501 recognized and arguably even advocated the evolution of new testimonial privileges as they were deemed necessary by courts in the future." 120

The Agosto court displayed a courageous attitude in its treatment of the issues with which it was confronted. In acknowledging the reluctance of other federal courts to adopt the privilege and the refusal of those courts to follow the lead of the New York courts, the Agosto court declared: "[t]his court will assume no such timid posture ... [n ]or will [it] ignore well­reasoned legal arguments simply because they occurred within the framework of state court opinions."121 Thus, the court followed the reasoning of the New York cases in general, and of the Fitzgerald court in particular, concluding that the confidential communications between parents and their children are entitled to privilege without restrictions as to the age122 of the communicant or distinctions based on the source of the communication. 123

While its enthusiasm for addressing the question of the parent-child privilege may be commendable, the Agosto court exceeded the bounds of proper judicial review by deciding questions not in issue. It is a fundamental principle of judicial review that courts shall not reach constitutional questions unless presented squarely with justiciable issues. 124 Assuming as correct the court's observation that it was "free to extend the present law of privileges"12S pursuant to Federal Rule of Evidence 501, the court could have resolved the issue of privilege on the basis of non-constitutional authorities. 126 Nor need it have reached beyond the facts of the case to decide that age could not be a factor in defining the privilege.

The court's analysis of the viability of the parent-child privilege when it is tested against the Wigmore conditions is generally sound. In that portion of its opinion dealing with the Wigmore analysis, the court relied almost exclusively on a law review article

We print and xerox. We typeset and assist you to design your cards, your stationery, your newsletters and brochures. We have stacks of stock and ink swatches for your selection. We deliver and pick up, and go out of our way to keep you a satisfied customer. From xerox copies of your grocery list to appellate briefs and your most important documents. We deliver on time and with the speed and care for which we have become famous. You are important to us. We value your business and we ask that the next time you need to print or xerox your briefs or stationery or directories or invitations to your next event CALL Harbor Printing and compare our seNice, reliability, price and convenience ............... .

HARBOR PRINTING & COpy SERVICE, INC.

A CUT ABOVE ... You decide for yourself and let us know how we can seNe you better ............ .

PRINTING CENTER 33 S. Charles St.

Baltimore, MD 21201

685-7121 COPVCENTER 3 E. Redwood St.

Baltimore, MD 21202

576-8656

written by Charles Coburn on the subject of the parent-child testimonial privilege. 127 However, no where in his article did Coburn suggest the desirability of extending the privilege to include the "right" of parents to use their children as a shield against the rule of law.

In traversing well beyond the bounds of proper review, the Agosto court inadvertently undermined the strength of its own authority. In its well­intentioned desire to be at the vanguard of "a new frontier in the area of testimonial privileges, "128 the court discarded the basic tenets of judicial restraint, and thereby sacrificed at least a degree of its power to persuade. 129

C. Other Courts If any of the foregoing court decisions

are to gain support it will most likely be the A & M decision because of its relative restraint. In this regard, the comment of the Supreme Judicial Court of Massachusetts is telling. In declining to adopt the parent-child testimonial privilege, the court rejected Agosto but declared that it was the court's "extreme position - an absolute privilege not to testify at all - that [it]reject[ed]."130

Other state and federal courts have declined to follow the lead urged by the A & M, Fitzgerald and Agosto courts. While several have implied a degree of sympathy regarding the concept of a parent-child privilege, 131 most have appeared to be either neutral or, in the case of the Indiana Court of Appeals, completely hostile to the proposal.132

In United States v. jones, 133 The United States Court of Appeals for the Fourth Circuit rejected the privilege when it was claimed by the twenty-nine-year-old emancipated son of a grand jury "target." The court distinguished A & M on the grounds that jones involved an adult child who was emancipated, and that the information sought related to business activities, not intra-familial communications. 134 However, the court indicated that changed factual circumstances might yield a different result in the future.135 The court concluded with the reservation that "in particular, we do not endeavor to decide to what extent the age of the child and whether or not emancipation has occurred mayor may not affect the decision as to whether any familial privilege exists."136

In In re Grand jury Proceedings,137 the Fifth Circuit Court of Appeals declined to adopt the privilege. There, a grand jury subpoena had been issued to the child of adults under investigation in connection with a homicide. The court distinguished the New York cases,

noting that those involved confidential communications from the child to the parent and that they "were founded for the most part on the desire to avoid discouraging a child from confiding in his parents. "138 Finally, the court implied that even had the factual settings been analogous, the "persuasiveness" of the New York cases was questionable. 139

The Ninth Circuit of Appeals,140 the Illinois Supreme Court141 and the California Court of Appeals l42 have declined to recognize the parent-child testimonial privilege, at least in part on the ground that the appropriate vehicle for extending recogmtlOn to new privileges devolves to the legislatures.

Finally, in Hunter v. State143 the Indiana Court of Appeals flatly rejected the claim of two adults convicted of child abuse of their five-year-old adopted child. l44 Citing Cissna v. State,145 decided by the same court the previous year, the court declared: "[In Cissna] [t ]his court soundly denounced the theory of a 'parent-child' privilege ... and we feel correctly SO."146 Although it is arguable that the court's strong language was precipitated by the outrageous nature of the case before it, stronger language in rejecting the claim of a parent-child privilege will not be found.

D. Summary Despite the results which obtained in

A & M, Fitzgerald and Agosto, general acceptance by the courts of a parent­child testimonial privilege seems unlikely. The reluctance of the courts to create new testimonial privileges is based on sound policy rationale including a longstanding policy of deferring to the legislative process. The diverse results of the three principal cases clearly illustrate the hazards inherent in judicial law-making of this type. Yet, despite the policy of restraint, the opinions cited in Section C supra indicate that a majority of the courts which have considered the question are generally sympathetic to the proposition of a limited privilege. _

IV. THE LIMITED CHILD­PARENT TESTIMONIAL PRIVI­LEGE

The decisions cited supra which have recognized a parent-child privilegel47 in some form are clearly the exception and not the rule on the question of whether confidential communications betwen children and their parents may be withheld from the fact finding process at either the trial, grand jury, or the discovery levels of the judicial process. 148 It is also clear that, among the courts extending the "privilege," there

has been an absence of a consensus as to whether it applies as a familial privilege 149 generally, or whether its application should be limited to those communications from a child to his or her parents. 150 Finally, there is an absence of agreement on the question of whether the issues presented involve a privilege per se,151 or whether they rise to the level of a constitutional right of privacy. 152

Despite these apparent inconsisten­cies, a limited child-parent testimonial privilege is highly desirable and is legally and morally supportable. Because of the inconsistencies, a statutorily mandated privilege is necessary for the protection of society's most precious resource: its children. The model statute proposed infra153 would create a limited child­parent privilege which would resolve the concerns of both the courts and commentators.

A testimonial privilege vesting in the child l54 as to confidential communica­tions made by the child to his or her parents155 in the reasonable belief that those communications will be confidential is an appropriate object of legislative attention. In establishing the privilege, it must be recognized that it derives from a recognition of a child's need to feel free to seek guidance, support and counsel from his or her parents without state-imposed restraint. It may be assumed that those times when such a need is felt most acutely by the child are precisely the times when children must feel unrestrained to follow their inclination to confide in those persons who generally are the most likely objects of their trust and affection.

Conversely, while a parent may feel a similar desire l56 to confide in his or her child, the very fact of adulthood must be presumed to impress conscious restraint and discriminating judgment upon the parent. An adult, by virtue of age and more complete knowledge and experience, is presumed to have the ability to more completely assess the consequences of disclosing confidential information to a child. No such presumption may fairly be imposed on a child. It is not the function or the duty of society in general, nor of the judicial system in particular, to shield adults from their own indiscretions. While it is proper to question whether a child has knowingly and intelligently waived l57 a claim to confidentiality by disclosing

Sprill!!,. ]985!Th(' Law FOlum-17

potentially incriminating facts to his or her parent(s), the same inquiry is inappropriate when a competent adult discloses similar information to his or her child. Put simply: the parent knows or ought to know better. The critical inquiry is not whether to create a privilege which encourages parents to confide in their children; it is whether to encourage, unfettered, the natural and desirable inclination of children to confide in their parents. In this regard, it is a proper function of society in general, and of the judicial system in particular, to refrain from interference with and the exploitation of the most basic and natural impulses of those in our society who are most vulnerable. Accordingly, the model statute proposed infra expressly rejects the broad bilateral privilege extended in both Fitzgerald and Agosto.

One commentator has opined that "the existence of a parent~child privilege would have no significant impact on the desirable elements of the relationship. "158 Such a bald assertion cannot reasonably stand on its own bottom; however, in light of the foregoing discussion, and despite the objections of the Fitzgerald court, age "barriers"159 are appropriate to the aplication of a child~parent testimonial privilege. A father need not be his adult, emancipated child's "confessor" in order to "full[ y] and satisfacto[rally]"160 maintain the parent~ child bond. Numerous confidential relationships are available 161 to the competent, adult and emancipated child. 162 The availability of these relationships provides the would~be confidential communicant with a myriad of alternatives to disclosure of potentially incriminating evidence to a parent.

Because other alternatives are available to a competent, emancipated, adult child, confidentiality is not "essential" to the "maintenance of the relation[ ship ]"163 between a parent and such a child. Accordingly, the statute proposed infra limits the application of the privilege to children who are not yet emancipated and who are under the age of twenty~two,164 The sole exception to the proposed limitation would permit the privilege to extend to an adult child who is found by a court to be mentally retarded such that the mental and emotional age of the child would otherwise qualify the child to claim the privilege. 165

Under the statute the applicability of 18-The Law Forum! Spring, 1 <;85

the privilege is presumed,l66 except in circumstances where the child communicatesl67 with his parents in the presence of third parties who are not also family, members.168 Although the presumption arises that the communication was not intended to be confidential in the later case,169 both presumptions are rebuttable by the party against whom the presumption arises. The latter presumption is rebuttable by a preponderance of the evidence tending to prove that ( 1) the child intended the communication to be confidential (as in the case of a conversation overheard by the third party), 170 or (2) under the circumstances, the child had a reasonable expectation that the communication was confidential notwithstanding the presence of the third party (as might occur if a child disclosed confidential information to a parent in the presence of a third party who is so familiar or well known to the child that the child would have no apprehension as to the extent of the third party's loyalty ).171

The statute expressly forecloses its application in certain circumstances, including cases of child abuse, incest and abandonment.172 Since it is intended to be applied for the exclusive protection and benefit of children, the shield they are necessarily provided under the statute must be stripped away in those circumstances where the privilege would otherwise stand as a shield for the benefit of an offending parent. In these circumstances, the courts are well equipped to apply every available resource for the benefit of a child who is compelled to give testimony under these exceptions to the privilege.

Provisions are also included which will prevent the child from asserting the privilege in those circumstances where a parent may seek the court's help in controlling the child's behavior.173 Such eventualities were foreseen by the A & M courtl74 which recognized that a privilege which purports to be for the benefit of children would fail in its essential purpose were it to do otherwise.

Finally, the privilege would be unavailable to a child who seeks to invoke its operation (1) in proceeding "to establish the mental competency of [the] proceeding "in which the child and his parent are opposing parties;" 176( 3 ) where

parent are opposing parties; "176 (3) where the child is "charged with a crime against his parent or other legal child of the

parent; " 177 or, (4) when it is found that the otherwise confidential communica~ tion was made in "furtherance of a crime or fraud." 178

The model statute proposed infra is designed to antlclpate those circumstances in which the privilege is likely to arise. The principal consideration in the operation of the privilege is the reasonable subjective perceptions of the child. Accordingly, those perceptions should be judged according to the perceptions which are reasonable for a child of the same age, intelligence and experience l79 acting under similar circumstances. V. CONCLUSION

The enactment of a statutory child~ parent testimonial privilege would eliminate the confusion evident in present case law. Most importantly, a limited child~parent testimonial privilege would vigorously promote "[a] relation ... which in the opinion of the community ought to be sedulously fostered."180

In view of the increased attention attracted by the issue of the child~parent privilege, particularly as demonstrated by recent case law, and considering the inadequate response of the courts to the questions presented, the author urges legislative enactment of a statute extending a limited child~parent

testimonial privilege. The model statute proposed infra provides the framework for such legislation. m Notes

I Application of A and M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (N.Y. App. Div. 1978). See infra notes 40-66 and 82-91 and accompanying text.

2 [d., 403 N.Y.S.2d at 380. 3 The court stated that "[ a ]lthough there are

persuasive arguments to apply a privilege in these circumstances, we believe that the creation of a privilege devolves exclusively on the legislature." [d. at 381 (footnotes omitted). Despite this statement, however, it is clear that the court created a privilege based ostensiblv on constitutional consi­derations. See id. at 378 (affirming the trial court finding that "the Constitution confers a right of family privacy").

4 See, e.g., infra notes 130-146 and accom­panying text for a partial survey of cases which have considered the privilege.

S Less than two years later, another New York court substantially expanded the privilege to include not only communica­tions made by a minor child, but also those made by children of any age. See People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S. 2d 309 (Westchester County Ct. 1979) discussed Infra at notes 67-91 and accompanying text.

6 See infra notes 130-146 and accompanying text.

7 Because the privilege advanced infra would limit its application to confidential disclosures of a child to his or her parent(s), the order in which the parties to the proposed privilege appear is inten­tionally reversed.

8 Coburn, Child-Parent Communications: Spare the Privilege andSpoil the Child, 74 Dick. L. Rev. 599 (1969) [hereinafter cited as Coburn].

9Id. at 602-03 (quoting Smith, Reintegrat­ing Our Concepts of Privileged Commun­icants, 16 Soc. Servo Rev. 191, 193 (1942)) (emphasis original).

10 See infra notes 25-33 and accompanying text.

118 J. Wigmore, Evidence § 2286 at 528 (McNaughton rev. 1961) [hereinafter cited as Wigmore]

12 See generally id. (although not expressly stated by Wigmore, it is also likely that claims of privilege based upon "gentle­man's honor" and "pledge[s] of privacy" were highly susceptible to abuse).

13Id. 14 Id at 72 (stating that "[t]he sacrifice [of an

individual] may be of his privacy, of the knowledge which he would preferably keep to himse If because of the disagreeable consequences of disclosure. This incon­venience ... is also a contribution which he makes in payment of his duties to society in its function of executing justice.")

15Id § 2192 at 70. 16Id. 17Id. § 2340 at 670 (relative to waiver of the

marital privilege the author declared that "[t]he privilege is intended to secure freedom from apprehension m the mind of the one desiring to communicate ... )" (emphasis added).

18Id. § 2336 at 651-52 (again discussing the marital privilege, the author stated: "[i]tis proper enough to maintain ... that all marital communications should be pre­sumed to be confidential until the contrary appears; but if the contrary appears, there is no reason for recognizing the privilege").

19 People V. Sanders, 99 Ill.2d 262, 270, 457 N.E. 2d 1241, 1245 (1983).

20 See In re Special Investigation No. 202, 53 Md. App. 96, 452 A.2d 458 (1982) (declaring that "[i]t is an elementary rule ... that statutes in derogation of the common law are to be strictly construed.") Id. at 103,452 A.2d at 462. See also United States V. Jones, 683 F.2d 817 (4th Cir. 1982) (quoting Trammel V. United States, 445 U.S. 40, 47 (1980): "[t]estimonial exclu­sionary rules and privileges contravene the fundamental principle that 'the public has a right to every man's evidence''').

21 See C. McCormick, Evidence § 73.1 at 173 (Cleary ed. 1984) [hereinafter cited as McCormick].

22 See infra note 25. 23 See, e.g., McCormick note 21 § 73.1 n.4 at

173. Cf. infra note 33 (newsperson privilege may be asserted only by non­communicant newsperson and not the newsperson's "confidential" source).

24 See, e.g., In re Special Investigation No. 202 supra note 20, 53 Md. App. at 103,452 A.2d at 462 (accountant-client privilege protects "the expectation of prn'acy ... in [various] mattC'rs"). Cf. McCormick supra note 21 § 76.2 at 185 (ncwsperson's privikgc "gmnally conn'ived as belong­ing to the journalist, to be claimed or waived irrespective of the wishes of the news source") (emphasis added). Accord Md. Cts. & Jud. Proc. Code Ann. § 9-112 (1984) infra note 33.

25 E.g., Md. Cts. & Jud. Proc. Code Ann ~ 9-

105 (1984) (providing that "[0 ]ne spouse is not competent to disclose any confidential communication between spouses occur­ring during their marriage."). But cf., id. §9-106 (1984) (allowing compelled testi­mony between spouses when a person accused of a crime is on trial for a crime which involves the abuse of a child under the age of 18).

26 E.g., id. § 9-108 ("[a] person may not be compelled to testify in violation of the attorney-client privilege"). See State v. Pratt, 284 Md. 516,520,398 A.2d 421, 423-24 (1979) (noting that the privilege extmds beyond the attorney to include agents employed by the attorney in furtherance of the confidential relation­ship, such as secretaries and stenogra­phers, and may include experts with whom the client speaks in furtherance of the relationship).

27 Wigmore supra note II § 2286 at 528. 28 E.g., N.Y. Civ. Prac. Law § 4504(a)

(McKinney Supp. 1979) (extending privi­lege to "person[ s] authorized to practice ... registered professional nursing, licensed practical nursing or dentistry ... "). Contra Maryland (which has no statute and is thus in accord -with- th'e common law which did not recognize the privilege); for a discussion reo Maryland's minority position, see Franklin V. State, 8 Md. App. 134, 258 A.2d 767 (1969), cert. denied, 257 Md. 733 (1970).

29 E.g., Md. Cts. & Jud. Proc. Code Ann. § 9-III (1984) (proscribing the compelled testimony of "[a] minister of the gospel, clergyman, or priest of an established church of any denomination ... on any matter in relation to any confession or communication made to him in confi­dence by a person seeking his spiritual advice or consolation").

30 E.g., id., § 9-109 (1974) (preventing the psychologist or psychiatrist from dis­closing communications made by the patient for the purpose of diagnosis or treatment of the patient's mental or emotional disorder). No privilege applies where, e.g., the patient is the respondent in a commitment proceeding or when the patient is the defendant in a criminal proceeding and has waived his fifth amendment rights after having been advised of them pursuant to a court­ordered examination. Id. Compare N.Y. Civ. Prac. Law § 4507 (McKinney Supp. 1979) (extending the privilege to psycho­logists only).

31 E.g., Md. Cts. & Jud. Proc. Code Ann. § 9-110 (1984) (providing in part: [A] certified public accountant, public accountant, or any person employed by him may not disclose the contents of any communication made to him by a person employing him ... nor may he disclose any information derived from the person or material in rendering professional service unless the person employing him or his personal representative or his successor in interest permits it expressly.) Id. § 9-1I0(a). See In re Special Investiga­tion No. 202 supra note 20 at 103-04, 452 A.2d at 462 (holding that the accountant­client privilegl' is not absolute; that, when compared to other privileges, "it is obvious that the [others] are absolute privileges while the accountant/client privilege is made subject to ... the excep­tions stated [in the code]) (emphasis added). The exception noted by the court provides that "[the privilege] does not affect the criminal laws of the State or the bankruptcy laws." Md. Cts. & Jud. Proc. Code Ann. § 9-11 O(b). Thus, the privilege

protects "[t]he expectation of privacy [of the client] in matters involving contracts, domestic disputes, and other civil and equity controversies; but [does not] create an expectation of privacy involving possible violations of the criminal or bankruptcy laws of the State." In re Special Investigation No. 202 at 103, 452 A.2d at 462.

32 E.g., Md. Cts. & Jud. Proc. Code Ann. § 9-121 (1984) (extending the privilege to "licensed, certified social worker[ s ]"). The privilege applies to "[c]ommunications made while the client was receiving counselling." Id. § 9-121(b). Compare Id. §9-121(d) and (e) with id. § 9-109(d) (psychotherapist-patient privilege) (pro­scribing the operation of the privilege in similar circumstances).

33 E.g., Id. § 9-112 (1984) (creating a privilege which applies to the newsperson, and not to the informer, and which protects only the identity of the confidential source but not the information derrived from the source). C/. Wigmore supra note II, § 2286 at 529 (citing Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910 (1958)): "[c]ompulsory disclosure may entail an abridgement of press freedom by imposing some limitation upon the availability of news ... [b Jut freedom of the press ... is not absolute ... lilt must give place under the Constitution to a paramount public interest in the fair administration of justice") (emphasis added).

34 See McCormick supra note 21, § 72 n. 7 at 171.

35 Wigmore supra note II, § 2285 at 527 (emphasis original).

36Id. at 528. The author further maintained that "the mere fact that a communication was made in express confidence of a confidential relation, or in the implied confidence of a confidential relation, does not create a privilege." Id.

37 Id. § 2332 at 642-43. C/. Note, Questioning the Recognition of a Parent-Child Testi­monial Privilege, 45 Alb. L. Rev. 142 (1980) (asserting that the existence of a parent-child testimonial privilege would have no significant "impact" on the "desirable" elements of the parent-child relationship.) Id. at 153.

"Wigmore supra note II, § 2332 at 642-43. 39 It is the conclusion of the author that

confidentiality of communications is indeed an essential aspect of the child­parent relationship. See discussion infra at notes 153-155 and accompanying text. Cf. infra notes 156-157 and accompanying text (distinguishing privileges which protect communications from a parent to a child.

40 See text accompanying notes 1-4. 41 See Application of A & M, 61 A.D.2d 426,

403 N. Y.S.2d 375 N. Y. App. Div. 1978). 42 403 N.Y.S.2d at 378-79 (declaring that the

case before it was analogous to those cases "which acknowledge a 'private realm of family life which the state cannot enter"') (quoting Prince V. Massachussets, 321 U.S. 158, 166 (1944).

43 Id. at 380. 44 Id. 45Id. at 377. 46Id. 47 Id., The court rejected the claim of

extension as to the marital privilege on the grounds that (I) the privilege is "carefully restricted and [is] subjected to close scrutiny," (2) "no privilege attaches [absent] confidentiality at the time [of] disclosure," (3) "the presence of the minor child destroys any aura of confidentiality

Spring, I985/The Law Forum-19

[between married couples]," and (4) the foregoing notwithstanding, the instant case "involve[s] revelations by a minor to his parents, not communications by one spouse to the other as required by [statute]." Id.

'8Id. '9 The court rejected both the claim of

extension to the marital privilege and a claim by the child's father to an attorney­client privilege. As to the latter claim the court found that the fact that the boy's father was an attornev was "coincidental under the circumstan~es" and was there­fore not a proper basis upon which a claim of confidentiality could arise Id. at 377-78.

50Id. at 381. The court did note that the absence of adequate fact-finding below had hindered its examination of the claim. Id. at 377.

51 In a footnote the court stated: "[o]ur discussion encompasses cases only in which all family members seek to preserve the confidentiality of the communications." Id. at 381 n. 9 (emphasis added). However, the court clearly could not have intended the foregoing statement to mean that a family consensus must prevail in order to validate a claim to the privilege.

52Id. at 380. 53Id. 54 I d. at 382. 55Id. at 380. 56 In enumerating its criteria, the court did

not include "minor"; however, the latter referred expressly to "minor child" in its holding. Id. at 380-81. Thus, it is reasonable to conclude that, at the very least, the court intended to refrain from expressing an opinion on whether the privilege would apply in the case of an adult child.

57Id. at 380. 58Id. 59Id. 6°Id. 61 See supra note 3 and accompanying text. 62Id. 63 Aplication of A & M, 403 N.Y.S.2d at 381

n. 9. While it is unclear that the court intended such a result, at least one commentator has suggested that the court intended that the privilege apply only "where the parent and child [are] in agreement that a conversation should remain secret." The commentator has correctly pointed out that, if such was the intent of the court, "[ s ]uch a restriction permits the parent to circumvent applica­tion of the privilege and leaves the child with uncertain protection for his confi­dences." See ~ Parent-Child Privi­lege for Confidential Communications, 16 FAM. L. Q ........ ,61 (1982).

64 If, e.g., a child was to make an admission to a sibling in private, would the parent(s) be allowed or req uired to assert the privilege on behalf of, or in conjunction with, the communicating child?

65 The court indicated strongly that a child could not assert the privilege "to prevent his parents from testifying about matters in which they were seeking the interven­tion and assistance of the court in controlling the child's behavior." Appli­cation of A & M, 403 N.Y.S.2dat 381 &n.9. See also infra notes 173-74 and accom­panying text (incorporating the foregoing into the Model Statute proposed herein).

66 See supra notes 55-59. 67 101 Misc. 2d 712, 422 N.Y.S.2d 309

(Westchester County Ct. 1979). 68 Fitzgerald, 422 N.Y.S.2d at 310. 69Id. 7°Id. 71Id. at 317.

20-The Law Forum/Spring, 1985

72Id. 73Id. HId. at 313-14. "[d. at 314. 76Id. at 315. "Id. 78Id. 79Id. at 317. 80 Id .. See also Application of.A & M, 403

N.Y.S.2d at 380 (same qualifying lan­guage employed).

81 Fitzgerald, 422 N.Y.S.2d at 315 (declaring that "[a] mutuality of privilege must exist in the parent-child situation ... ").

82 Application of A& M, 403 N.Y.S.2dat 377. 83Id. 8'Id. 85 See Fitzgerald, 422 N.Y.S.2d at 310. 86 Application of A& M, 403 N.Y.S.2dat 377.

The case was remanded on the question of whether the parents could qvoid appear­ing altogether. The court held, inter alia, that there was no invasion of privacy in requiring an appearance before a grand jury and that "there may be questions which could properly be asked and answered which would not invade the area of family confidentiality." Id at 382 (questions not protected as confidential communications would include, e.g., "whether [the] son was at home on the night in question; [and] if he was not, the time he left and returned."). Id. n.lO.

87 Fitzgerald, 422 N.Y.S.2d at 310. 88 See id. (noting that 'the parties to [the]

communication mutually assert[ed] ... [the] privilege"). Cj. Addendum infra, Child-Parent Testimonial Privilege Model Statute at § 1003 (enumerating who may claim the privilege).

89 See, e.g., supra note 51. 90 See Fitzgerald, 422 N.Y.S.2d at 316. In

apparent reliance on counsels oral ar­guments the court stated: "the people concede. . .that such a privilege as envisioned[by the A & M court] is a joint privilege shared by all family members." This conclusion cannot be reasonable drawn from the opnion of that court. see supra text accompanying notes 44-66 and note 63.

91 See infra notes 137-139and accompanying text.

92 In re Agosto, 553 F.Supp. 1298 (D. Nev. 1983).

93Id. at 1309. 9'Id. at 1317 (rejecting any distinctions "on

the basis of the 'direction' from which the communication between parent and child flow").

95Id. at 1309. 96Id. at 1316 (citing with approval the

conclusion of the Fitzgerald court supra that '''the privilege may not and should not be limited by the ageof either party"').

97Id. at 1302-10. 98Id. at 1302-03. 99Id. at 1303.

100Id. 101ld. (quoting Comment, The Child-Parent

Privilege: A Proposal, 47 FORDHAM L. REV. 771, 778-79 (1979)).

102 In re Agosto, 553 F.Supp. at 1305. 103 "[T]o be sure, some few guilty persons do

'slip through' the judicial system. But American law has consistently deemed the integrity of the judicial system's protec­tion of individual rights to be worth the price. This may be analogized to the fact that some guilty family members may 'slip through,' but the integrity of the family unit must be maintained, even at that cost." Id. at 1310-11.

10'ld. at 1311. 105Id. at 1312 ("The realm of family privacy

is not absolute ... where the state can show

a compelling interest. "). 106 See id. at 1310-11. 107Id. at 1310 (quoting Olmstead v. United

States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).

108 In re Agosto, 553 F.Supp. at 1309. 109Id. at 1308-09. See supra text accompany­

ing notes 34-35 (enumerating the four conditions).

110 Wigmore supra note II § 2285 at 527 (emphasis in original deleted).

III In re Agosto, 553 F.Supp. at 1309. 1I2Id. 1I3Id. II'Id.1309-1O. 115Id. 116Id. at 1310. 117 Id. at 1325. 118Id. 119 FED. R. EVID. 501 states in part:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court ... the privilege of a witness, person ... [etc.] ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience ...

120 In re Agosto, 553 F.Supp. at 1324 (emphasis added).

121Id. at 1317. 122Id. at 1309. See also supra note 96 and

accompanying text. 123Id. at 1317. See also supra notes 93-94. 124 See generally J. Nowak, R. Rotunda &

J.N. Young, Constitution Law 87-88 (2d ed. 1983) (explaining the rationale behind the rule of judicial self-restraint "lies in prudential concerns: the desire to avoid constitutional questions and to assure that the most effective and concerned advocate is before the Court") (citations omitted).

125 See supra notes 117 and accompanying text.

126 See supra notes 109-20 and accompany­ing text.

127 In re Agosto, 553 F.Supp. at 1309-10 (citing Coburn supra note 8).

128Id. at 1317. 129 See, e.g., infra note 130 and accompany­

ing text. 130 Three Juveniles v. Commonwealth, 390

Mass. 357, ..... " 455 N.E.2d 1203, 1207 (1983).

131 See infra notes 133-39 & supra note 130 and accompanying text.

132 See infra notes 143-46 and accompanying text.

133 683 F.2d 817 (4th Cir. 1982). 134Id. at 819. 13sId. .l36Id. (emphasis added). I37 647 F.2d 511 (5th Cir. 1981). 138Id. at 513 n.4. 139Id. 1.0 See United States v. Penn, 647 F.2d 876

(9th Cir. 1980) (no privilege where minor child led police to hidden drugs on defendant's property).

141 See People v. Sanders, 99 Ill. 2d 262, 457 N.E.2d 1241, (1983) (presence of defen­dant's minor child in room when defendant confessed to wife his role in robbery-homicide held (I) to destroy confidentiality of marital privilege and (2) not appropriate for consideration of parent-child privilege, even absent long­standing policy of deferral to legislature in matters of testimonial privileges).

142 See In Matter of Terry W., 59 Cal. App. 3d 745, 130 Cal Rplr. 913 (1976) (no parent­child privilege absent express statute.

143172 Ind. App. 397, 360 N.E.2d 588, cert.

denied, 434 U.S. 906 (1977). 144 [d. 172 Ind. App. at ___ ,360 N.E.2d

at 592. 145 170 Ind. App. 437, 352 N.E.2d 793 (1976). 146 Hunter v. State, 172 Ind. App. at __ ,

360 N.E.2d at 598. 147 Application of A & M, 61 A.D.2d 426, 403

N.Y.S.2d 375 (N.Y. App. Div. 1978), People v. Fitzgerald, 101 Mise. 2d 712, 422 N.Y.S.2d 309 (Westcht'ster County Ct. 1979) and In re Agosto, 553 F.Supp. 1298 (D. Nev. 1983).

148 Compare, e.g., supra notes 40-129 with nott's 130-146 and accompanying text. See Iso In re Kinnoy, 326 F.Supp. 400 (S.D.N.Y. 1970) (rejecting the privilege on the ground that, even if such a privilege existed, the case was not appropriate for application because the petitioner's daughter, who was sought by the grand jury only for information related to a third party, was not herself a "targN" of the grand jury investigation). For a summary of the cases considering the privilege, see In re Agosto, 553 F.Supp. at 1312-21.

149 See generally People v. Fitzgerald, 101 mise. 2d 712, 422 N.Y.S.2d 309 (West­chester County Ct. 1979) and In re Agosto, 553 F.Supp. 1298 (D. Nev. 1983).

150 See generally Application of A & M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (N.Y. App. Div. 1978).

151 See, e.g. In re Agosto, 553 F.Supp. 1298 (D. Nev. 1983). Despite the various bases claimed by the court in support of its holding, the dictum contained in the opinion clearly indicates the intention to adopt a new privilege.

152 See generally Application of A & M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (N.Y. App. Div. 1978) and People v. Fitzgerald, 101 Mise. 2d 712, 422 N.Y.S.2d 309 (West­chester County Ct. 1979) (expressly noting the authority of the legislature in matters relating to the adoption of new privileges and relying, instead on state and federal constitutional gloss for their holdings).

153 See infra Appendix. 154 See infra Model Statute § 1001 (a) at

Appendix (defining "child"). 155 See id. § 1001(d) (defining "parent"). 156 "Desire" as used here is to be distinguish­

ed from what is to be presumed to be a "need" of a child.

157 See generally McCormick supra note 21 § 93 at 223 n.3 (waiver) [tJraditionally ... described as an intentional relinquish­ment of a known right") (citations omitted).

158 Note, Questioning the recognition of a Parent-Child Testimonial Privilege supra note 37.

159 See supra text accompanying note 75. 160 See supra text accompanying note 35

(second of four conditions enumerated by Wigmore for the recognition of testimo­nial privileges).

161 See, e.g., supra notes 25-33 and accom­panying text.

162 As used in this article, "adult" means a person over the age of twenty one. Cj. infra Model Statute § 1001(a) at Appendix (defining "child").

163 See supra text accompanying note 35. 164 See infra Model Statute § 1001(a) at

Appendix. 165 [d. 166 [d. § 1006 at Appendix. 167 [d. § 1001 (b) at Appendix (defining

"comunication"). 168 [d. § 1005(a). Compare id. §§ 1005(b) with

1006 (distinguishing presumptions against confidentiality which arise when a child discloses in the presence or hearing of third party non-family members with

those presumptions which arise in favor of confidentiality when disclosure is made in the presence of family members only).

169 [d. 170 [d. § 1005(b). 171 [d. 172 [d. § 1007(d). 173 [d. § 1007(f). 174 See supra note 65 and accompanying text. 175 See infra Model Statute § 1007(b) at

Appendix. 176 [d. §~ 1007(c) & (d). 177 [d. § 1007(e). 178 [d. § 1007(a). 179 W. Prosser, W.P. Keaton, D. Dobbs. R.

Keaton & D. Owen, Torts § 32 at 179 (5th ed. 1984) (citations omitted) (noting the standard to which children are generally held in negligence actions).

180 See supra note 35 and accompanying text (fourth of Wigmore's four conditions for recognition of a testimonial privilege).

Appendix Child-Parent Testimonial Privilege Model Statute r:P OOI Definitions.

As used in this statute. the following words and phrases have the meanings ascribed.

(a) "Child": a person who is undertheage of twenty-two (22) years and who is un­emancipated. A person who is found by the court to be mentally retarded to the extent that the mental and emotional age of the person is that of a person under the age of twenty-two years shall be considered a "child" for the purposes of this statute whether or not emancipated and regardless of actual age.

(b) "Communication": any expression, interchange or transmission of ideas, ex­pression of thoughts or messages between two or more persons which is intended for the purpose of making known from one to the other the content of such ideas, expres­sion of thoughts or messages. The medium bv which communications are imparted shall not be restricted.

(c) "Confidential Communications": any communication made by a child to his pa­rent and to which a presumption of confi­dentiality attaches. Except as otherwise provided in this statute the presence of third persons shall not alter the confidential na­ture of the communication.

(d) "Parent": includes the natural or adop­tive parent(s), step-parent(s), foster parent(s) or guardian(s) of the child. (e) "Proceeding": any juvenile delin­

quency hearing or proceeding, adult civil or criminal proceeding, or grand jury pro­ceeding.

(f) "Waiver": the intentional and volun­tary relinquishment of a known right by the child or his guardian. (g) Where the masculine gender is used in

this Statute, it shall be taken to include the feminine gender as appropriate.

§1002 Child-Parent Testimonial Privilege. Any confidential communication shall be outside the scope of discovery in any judi­cial proceeding when the communication is made-

(a) by the child to his parent, or by the pa­rent to the child in response to or in com­munication with confidential communi­cations;

(b) within the context of the family rela­tionship; and (c) for the purpose of obtaining the sup­

port, advice or guidance of the parent. §I003 Person Who May Claim the Privilege.

The child-parent privilege may be c1aimed­(a) by a child on behalf of himself and his

parent and as to confidential communica­tions between the child and his parent;

(b) by a guardian appointed by the court on behalf of any child as defined in this Statute; or

(c) by an attorney on behalf of the child. §1004 Waiver of the Privilege.

(a) A child may waive the privilege only when acting through the effective assis­tance of legal counsel. (b) Exception: A person upon whom this

Statute confers a privilege against disclo­sure waives the privilege if he discloses any significant part of the privileged matter following his retaining competent legal counselor consents to disclosure by his at­torney of any significant part of the privi­leged matter.

§1005 Presence of third persons: Effect on Privi­lege.

(a) The presence of third persons at the time of the confidential communication and who are not members of the child's immediate family raises a rebuttable pre­sumption that the communication of the child was not intended to be confidential.

(b) The presumption raised under § 1005 (a) may be rebutted by a preponderance of the evidence that, under the circumstances in which the comrnunication occurred, the child had a reasonable expectation that the communication was or would remain con­fidential, notwithstanding the presence of or inadvertent divulgence to the non-family member third person.

§I006 Presumption of Confidentiality. Except as provided in § 1005, a presump­tion of confidentiality shall attach to any communication claimed by the child to be confidential. The opponent of the privi­lege shall have the burden of establishing that the communication was not confi­dential by clear and convincing evidence.

§I007 Exceptions. There shall be no privilege under this Statu te under the following cir­cumstances -

(a) When invoked in furtherance of a crime or fraud: when sufficent evidence has been introduced in any proceeding which warrants a finding that the communication was made, in whole or in part, to further or facilitate the active involvement of any per­son in a crime or fraud;

(b) Proceeding to establish competency: in any proceeding brought by or on behalf of a party to establish the mental competency of a child or his parent; (c) Proceeding in which the child and his

parent are opposing parties: no privilege shall be recognized in any civil or criminal proceeding in which the child and his pa­rent are opposing parties.

(d) The child and his parent shall be deemed to be opposing parties in any pro­ceeding in which the parents are opposing parties or in which the parent is charged with:

i. Child abuse; ii. Incest; iii. Adultery; iv. Child neglect; or v. Abandonment or non-support.

(e) Charge of crime against the parent or legal child of the parent: any child charged with a crime against his parent or other legal child of the parent shall not be entitled to claim this privilege. (f) Parent Seeking Assistance of Court:

no child may claim this privilege for the purpose of preventing his parent from tes­tifying about matters in which the parent is seeking the assistance of the court in controlling the child's bahavior.

Spring, J985/The Law Forum-21