The criminal justice system is aimed at ensuring justice by prosecuting and punishing criminals for their crimes accordingly. However, the current system is not perfect and there occur disruptions of justice due to various reasons. Moreover, there is a question of ethics and morality as opposed to legal issues, as well as the priority of legal proceedings over ethical dilemmas in some instances. One of the most controversial issues of the criminal justice system concerning ethics and ethical dilemmas is that of privileges.
In the USA, the privileges mostly belong to the domain of common law and are not explicitly introduced and prescribed in statutory documents with the exception of the attorney-client privilege. It means that the courts hold the power to determine whether or not the privilege should be acknowledged. Furthermore, the Supreme Court does not recognize the majority of such privileges even when they are requested by individuals. Contrary to a popular opinion, there is no such privilege as the parent-child one in the US criminal justice system, and parents or children can be asked to testify against each other in court with virtually no opportunity to refuse to do that without repercussions.
The situation creates ethical dilemmas faced by both the clients requested to testify against their closest blood relatives and the judges who have to decide whether to uphold the request to acknowledge the privilege. Similarly, prosecutors need to decide whether to ask the parents to testify against their children and vice versa. Overall, the issue of the parent-child privilege and its absence in the criminal justice system is considered to be highly complicated from the ethical perspective, creating a number of ethical dilemmas faced by all the parties involved.
Absence of Parent-Child Privilege in Criminal Justice System & Its Implications
According to Article V of Federal Evidence Review (2015) and Rule 501 in particular, claims of privileges in general are governed by the common law as interpreted by the United States courts in the light of reason and experience, unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. Similarly, Rule 502 acknowledges the existence of the attorney-client privilege and guarantees support regarding a claim of this privilege, while all other privileges are to be determined by courts.
Generally, the state codes and courts recognize and respectively satisfy the claims of the following privileges: client-attorney, clergy-confessor, doctor-patient, psychologist-patient, the privileges between spouses, the privileges of student-teacher, journalist-source, and researcher-participant relationship, even though the last three claims are not universally satisfied (Ford, 2014).
It is evident that there is no parent-child privilege in the list, but many people often assume that because of the marital privilege, there is also one for parent-child by association. However, there is not. Moreover, the first draft of Federal Rules of Evidence that provided the full list of federal privileges did not contain parent-child privilege and only a few lower federal courts have since recognized it by common law (Ford, 2014, p. 14).
Consequently, a mother or a father can be subpoenaed in order to testify against their child in court and will be penalized for a refusal to do that. Similarly, children can be asked to testify against their parents, and federal courts rarely satisfy their claims of the privilege because of the absence of the legislative means that would support such decision, not to mention the lack of similar precedents among the Supreme Courts previous decisions.
However, it does not mean that there is no discussion and interest in creating such privilege in the USA, and in fact, there has been a renewed interest in the issue since 1996, after the Supreme Court recognized the existence of a novel psychotherapist-patient privilege (Ross, 2003). Moreover, it should be noted that the interest in creating such privilege existed long before 1996, as evident from the article by Cofer (1979) that discussed whether parent-child privilege could be considered a constitutional right.
Irrespective of such heightened interest in the issue among the scholars, the courts fail to recognize the privilege, and similar to the Fourth Circuit, they repeatedly state in their decisions, that the privilege is not applicable as no federal appellate court has recognized a parent-child privilege, and we decline to do so here (Federal Evidence Review, 2014).
Nevertheless, some Supreme Court Justices voiced the objections in regards to the issue of the parent-child privilege. For instance, Justice Scalia stated the following after his dissenting decision in Jaffe v. Redmond: Ask the average citizen: would your mental health be more significantly impaired by preventing you from seeing a psychotherapist, or by preventing you from getting advice from your mom? I have little doubt what the answer would be(Jaffe v. Redmond, 518 U.S. 1, 22, 1996).
This statement underscores the scope of the problem caused by the absence of the parent-child privilege and implies that this absence raises some ethical issues that can not be easily resolved. Hence, under the current legislation, parents have to warn their children that they can not confide in them with an absolute trust since they could be asked to testify against them in court, disclosing the content of their private conversations in case their children get in trouble. The same applies in reverse and it seems to go against the very nature of the family ties, disrupting trust between the family members.
The aforementioned ethical problem faced by parents and children in case of court proceedings is recognized by many countries whose legislative systems are based on the Roman law and Corpus Juris Civilis code in particular (Farber, 2010). Hence, the modern French Civil Code does not allow parents and children to testify against each other, which is similar to most Western European countries that prohibit family members to disclose confidential communications between each other (Farber, 2010).
The German Code of Criminal Procedure also allows individuals who are related by marriage, blood, or adoption to refuse to testify against the family members. In Russia, the Constitution explicitly forbids close relatives, including parents, children, spouses, and siblings to testify against each other, while the Japanese law exempts all relatives to the second degree of kinship from testifying against other family members (Farber, 2010).
Similar rules exist in many other countries of the world and it means that the USA is among few countries that do not recognize the parent-child privilege. The following section of the paper is aimed at discussing ethical dilemmas created by the US reluctance to acknowledge the parent-child privilege in the criminal justice system.
Ethical Dilemmas Created by Absence of Parent-Child Privilege
As mentioned above, the absence of the parent-child privilege creates ethical dilemmas for all the parties involved, including, first and foremost, parents and children, and to a lesser extent, judges and prosecutors. It seems to be a universal truth and an extremely significant societal value that parents and children should trust each other and that children should be able to tell their parents almost anything as they implicitly perceive such communication as confidential. Therefore, it is believed that the forced betrayal of confidential communications between parents and children is particularly heinous (Ross, 2003, p. 86).
One of the major issues is that such communications are usually not governed by legal rules and parents rarely think about the legal repercussions of having trustful and open conversations with their children. However, the absence of the parent-child privilege means that parents can be forced to testify against their children in case the latter get in trouble and are prosecuted. This way, the parents face an ethical dilemma of either to uphold their civil duty and testify in court openly and honestly or to insult the court and refuse to testify.
There is also another option where some parents choose to provide false testimony in order not to violate their childrens trust. As one mother claimed in a criminal case after being asked to testify against her son, a mothers instinct is to protect. I would feel unnatural doing the opposite, while her husband said that Ive worked so hard to be a father... I just couldnt [testify] (Farber, 2010, p. 553). Although their son turned out to be innocent, the father was sentenced to 2 months in prison and the mother was sentenced to 4 months in prison for the contempt of court, while their only wish had been to protect their son (Farber, 2010).
Similarly, children face an ethical dilemma of whether to testify against their parents, as it seems to be natural to protect their family at any cost. The situation is especially complicated for minor children who cannot rationalize the situation and behave objectively, thereby being exposed to immense pressure and even psychological harm.
However, scholars and criminal justice professionals claim that these ethical dilemmas are not really crucial and apply the Wigmore test to determine whether the claim of the parent-child privilege meets the four conditions that would make the relationship worthy of protection. One of the conditions reads as follows: This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties (Farber, 2010, p. 574).
Scholars claim that parents and childrens relationship would not be disrupted by testimony as they would realize its forced nature, yet such conclusion seems to be far-fetched. Another component of the Wigmore test is teleological from the ethical perspective as it weighs the injury to the relationship against the common benefit, which in turn means prioritization of the case resolution and serving the interests of justice over the maintenance of healthy family relationships (Farber, 2010).
Therefore, prosecutors facing an ethical dilemma of whether to ask parents and children to testify against each other are governed by the teleological ethics and choose to do a seemingly bad act of asking them to testify with the interests of justice in mind. Such ethical system differs from the one that governs the actions of parents and children who use deontological thinking. They are concerned solely about the questionable nature of the act, which in this case is the testimony against the family members.
Judges also face an ethical dilemma pertaining to the parent-child privilege, as under the current legislation they are the ones who decide whether to uphold the privilege or not. They follow mostly the common law principle that the public has a right to every mans evidence (Markel & Leib, 2007, p. 1167), which means that they do not recognize the privilege and demand testimony. They are thus guided by such ethical system as ethical formalism as they prioritize performance of their duty over any ethical controversies caused by such duty. They seem to believe that a discretionary privilege would lead to unequal justice, and any form of parent-child privilege would frustrate the search for the truth (Cofer, 1979, p. 1979).
This idea presented in the article dated as of 1979 has been governing the judges decisions for decades, which is why the approval of the claim of parent-child privilege is such a rare occurrence in the criminal justice system. The overall goal of finding the truth in a criminal case and serving the interests of justice overrides any family values, which means that the current discourse of the parent-child privilege is governed by the teleological ethical system.
The issue of the parent-child privilege in the criminal justice system is highly controversial from the ethical perspective as it raises the question of what is more important family relations or the common good in the form of justice. Moreover, the absence of clear legislative provisions on the privilege and its applicability under different circumstances makes all the parties involved face ethical dilemmas. The most severe dilemma is faced by parents and children who have to decide whether to protect their family or give a testimony, which can potentially ruin the family relationships. Similarly, the judges face an ethical dilemma of whether or not to acknowledge the privilege, yet in most cases they are governed by an overall goal of serving the society by finding the truth rather than protecting a family as a unit. The situation has no clear solution that would be beneficial to everyone. However, considering the researched facts, it seems that the parent-child privilege should be recognized by the federal law through adoption of respective provisions. The relations between parents and children are evidently no less important than the relations between spouses or, for instance, psychotherapists and their patients.