Do You Swear to Tell the Truth, the Whole Truth, and Nothing but the Truth against Your Child?

76 Pages Posted: 29 May 2009 Last revised: 13 Nov 2013

See all articles by Hillary B. Farber

Hillary B. Farber

University of Massachusetts School of Law at Dartmouth

Date Written: May 27, 2009

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 a 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 - the 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.

Suggested Citation

Farber, Hillary B., Do You Swear to Tell the Truth, the Whole Truth, and Nothing but the Truth against Your Child? (May 27, 2009). Loyola of Los Angeles Law Review, Vol. 43, p. 551, Winter 2010, Northeastern University School of Law Research Paper No. 34-2009, Available at SSRN: https://ssrn.com/abstract=1410738 or http://dx.doi.org/10.2139/ssrn.1410738

Hillary B. Farber (Contact Author)

University of Massachusetts School of Law at Dartmouth ( email )

333 Faunce Corner Road
North Dartmouth, MA 02747-1252
United States
508-985-1140 (Phone)

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