Indiana Law Review Jaffe v. Redmond: The Supreme Court's Dramatic Shift Supports the Recognition of a Federal Parent-Child Privilege NlSSA M. RlCAFORT* "Truth, like all other good things, may be loved unwisely—may be pursued too keenly—may cost too much." 1 Introduction The Supreme Court's recent decision in Jaffe v. Redmond? recognizing a federal psychotherapist-patient privilege, supports the recognition of a federal parent-child privilege. The Jaffe decision reflects a major shift in the Supreme Court's approach to the creation of new privileges under Federal Rule of Evidence ("FRE") 501 . 3 This shift to a more permissive view of new privileges, along with other legal and social policy arguments, supports a limited evidentiary privilege protecting communications between parents and children. After a brief overview of the rationale for and historical development of current privilege law, this Note discusses competing approaches to the development of privileges. In Part III, after examining the Supreme Court's decision in Jaffe, this Note explains the significance of the decision. In Part IV, this Note specifically analyzes a parent-child privilege by discussing: (A) the current state of the privilege; (B) the arguments previously advanced in support of the privilege; (C) federal and state court decisions rejecting the privilege; and (D) recent developments in reaction to the Jaffe decision. This Note then asserts that current legal arguments and social policies support the recognition of a limited parent-child privilege that courts should apply using a case-by-case balancing approach. Finally, the parameters of a parent-child privilege are defined. I. Rationale for and Historical Development of Current Privileges The law of privilege is an amazing area of law because it involves an area of communications that no one can reach—not a judge, a court, or the government. No other legal doctrine affords such protection to communications between citizens. 4 "The word 'privilege' is derived from the Latin phrase 'privata lex,' meaning a private law applicable to a small group of persons as, their special * J.D. Candidate, 1999, Indiana University School of Law—Indianapolis; B.A., 1994, DePauw University. 1. Pearse v. Pearse, 63 Eng. Rep. 950, 957 (1846). 2. 518 U.S. 1 (1996). 3. See Daniel Capra, A "New" Privilege: Parent-Child, N.Y. L.J., May 9, 1997, at col. 1. 4. Interview with Professor William F. Harvey, Professor Emeritus, Former Dean, Indiana University School of Law—Indianapolis (Nov. 24, 1997). 260 INDIANA LAW REVIEW [Vol. 3 1 :259 prerogative." 5 Privileges are different from other rules of evidence. They exclude reliable, relevant evidence in order to protect an interest deemed by a court or legislature to be more important than the interest served by admitting the evidence. 6 Additionally, some scholars explain how some privilege rules are unique because they also affect behavior (such as the interaction between husband and wife) outside of the courtroom. 7 Privileges are controversial because they inhibit the common-law principle that "the public has a right to every man's evidence." 8 One goal of the adversarial judicial system is to place all relevant evidence before the trier of fact. 9 Although privileges impede this goal, they have been a part of the American judicial system since the founding of our country. Based on English common law, two marital privileges and the attorney-client privilege were recognized in American common law. The first marital privilege evolved from the English spousal disqualification rule by which a wife was viewed as incompetent to testify against her husband. 10 This incompetence stemmed from the medieval view of husband and wife as a single entity (since a wife did not have her own legal identity) and from the rule that one could not testify in any action in which he had an interest. 11 This spousal disqualification rule became ingrained in both English and American common law. It was finally abolished in England by the English Act of 1853, and replaced by a privilege that forbade a husband or wife from being compelled to disclose any communications made by the other during the marriage. 12 Eighty years later, the United States Supreme 5. Bruce Neal Lemons, From the Mouths of Babes: Does the Constitutional Right of Privacy Mandate a Parent-Child Privilege?, 1978 BYUL. REV. 1002, 1003. 6. See David A. Schlueter, The Parent-Child Privilege: A Response to Callsfor Adoption, 19 St. Mary's L.J. 35, 37 (1987) (citing H. Wendorf & D. Schlueter, Texas Rules of Evidence Manual 62-63 (1983)). 7. See Edward J. Imwinkelried, An Hegelian Approach to Privileges Under Federal Rule ofEvidence 501: The Restrictive Thesis, The Expansive Antithesis, and the Contextual Thesis, 73 Neb. L. Rev. 511,514(1994). 8. United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting 8 John H. Wigmore, Evidence § 2192 (3d. ed. 1940)). 9. See Brian S. Faughnan, Comment, Evidence—Jaffe v. Redmond: Establishing the "Psychotherapist-Patient Privilege " Under Rule 501 ofthe Federal Rules ofEvidence, 27 U. MEM. L. Rev. 703, 705 (1997). 10. See Developments in the Law—Privileged Communications, 98 HARV. L. Rev. 1563, 1 564 (1985) [hereinafter Developments in the Law]. Eventually this rule became gender neutral, and neither spouse was permitted to testify against the other. See Imwinkelried, supra note 7, at 512 n.4. 1 1 . See Gregory W. Franklin, The Judicial Development ofthe Parent-Child Testimonial Privilege: Too Big For Its Britches?, 26 WM. & MARY L. REV. 145, 152 (1984). But cf Developments in the Law, supra note 10, at 1564-65 (noting Dean Wigmore's alternative explanation for the development of the spousal disqualification rule). 12. See MCCORMICK ON EVIDENCE § 78 (John W. Strong et al. eds., 4th ed. 1 992). 1 998] FEDERAL PARENT-CHILD PRIVILEGE 26 1 Court also abolished the spousal disqualification rule in Funk v. United States, n and replaced it with an adverse testimonial privilege which permits a witness to refuse to adversely testify against her spouse. The second marital privilege that developed from English common law was first recognized in the United States in the 1850's, and protects confidential marital communications. 14 Both marital privileges are still recognized in the United States today and are justified on utilitarian grounds: the adverse testimony privilege "provides social benefits by preventing marital discord" 15 and the confidential communications privilege "fosters openness between spouses by ensuring that none of their confidences will be revealed in court." 16 The attorney-client privilege originated from Roman law and was also recognized at English common law.17 "[E]arly common law courts reasoned that the lawyer, as a gentleman, should not besmirch his honor by revealing his client's secrets." 18 Inducing a client's candor with his or her attorney became the primary rationale for the privilege in the Nineteenth Century. 19 It is this rationale that first influenced the recognition of the privilege by American courts and that primarily supports the recognition of the privilege today; some have suggested that privacy considerations also support the recognition of an attorney-client privilege. 20 Until well into the Nineteenth Century, Congress and state legislatures were content to allow the courts to develop expansions and exceptions to the English common law of privileges.21 At that time, faced with a "codification movement and enthusiastic scholars forcing it along, state legislatures began the attempt to codify evidence codes." 22 This state legislative development of privileges continued, even though the judicial development of privileges virtually halted at the beginning of the Twentieth Century as judges increasingly came to view privileges as hindrances to litigation and impediments to the fact-finding 13. 290 U.S. 371(1933). 14. See Developments in the Law, supra note 10, at 1565 (citing 8 JOHN H. WlGMORE, Evidence in Trials at Common Law, § 2333 (John T. McNaughton rev. ed. 1961) [hereinafter Evidence in Trials]). 15. Id. at 1 577 (citing Charles T. McCormick, McCormick On Evidence § 66 (Edward W. Geary ed., 3d ed. 1984) [hereinafter Cleary] and Evidence in Trials, supra note 14, § 2228, at 216-17). 1 6. Id. (citing CLEARY, supra note 1 5, § 83 and EVIDENCE IN TRIALS, supra note 1 4, § 2332, at 642). 17. See Wendy Meredith Watts, The Parent-Child Privileges: Hardly a New or Revolutionary Concept, 28 WM. & MARY L. REV. 583, 594 (1987) (citing Max Radin, The Privilege ofConfidential Communications Between Lawyer and Client, 16 CALIF. L. REV. 487, 488 (1928)). 18. Franklin, supra note 1 1, at 148 (citation omitted). 19. See id. 20. See MCCORMICK ON EVIDENCE, supra note 12, § 87. 21. See Watts, supra note 1 7, at 588. 22. See id. (footnote omitted). 262 INDIANA LAW REVIEW [Vol. 3 1 :259 process. 23 Privilege development even extended to common-law privileges, and resulted in codification of the common law husband-wife and attorney-client privileges in most states.24 The development of privilege law by state legislatures resulted in a wide disparity of privilege rules in the United States. 25 Because of this disparity, states recognize different privileges in state judicial actions. All states currently recognize some form of husband-wife and attorney-client privilege.26 Most states also recognize a privilege to protect certain government information. 27 Additionally, due to the increasing acceptance of psychological counseling in the 1950's, all states recognize some form of psychotherapist-patient privilege.28 Although probably not recognized at common law, all states have now adopted a clergyman-penitent privilege for confidential communications, 29 which is generally recognized to be held by the communicant. 30 A privilege for physician- patient communications also did not exist at common law.31 New York was the first state to enact a physician-patient privilege in 1828. 32 Today, the rationale justifying this privilege is that for patients to get the best care, they need to freely "disclose all matters which may aid in the diagnosis and treatment of disease and injury." 33 Analogous to the attorney-client privilege, communications between accountants and their clients are currently privileged in about one-third of the states, 34 and a substantial number of states recognize a journalist-news source privilege held by the journalist. 35 The disparity in state-created privileges raised concern among legal scholars, lawyers, and jurists that prompted calls for national reform and unification of evidentiary rules. 36 One result of this concern was Congress' 1934 grant of power to the Supreme Court to promulgate rules of evidence for the federal appellate and district courts. 37 The Supreme Court is required to submit its proposed rules to Congress, which then has the discretion to accept or reject the 23. See MCCORMICK ON EVIDENCE, supra note 12, § 75 (citation omitted). 24. See id. 25. See Watts, supra note 17, at 588. 26. See MCCORMICK ON EVIDENCE, supra note 12, § 76.2. 27. See id. 28. See M. Leigh Svetanics, Note, Beyond "Reason and Experience ": The Supreme Court Adopts a Broad Psychotherapist-Patient Privilege in Jaffe v. Redmond, 41 ST. LOUIS U. L. J. 719, 720(1997). 29. See McCormick on Evidence, supra note 12, § 76.2. 30. See id. 31. See id. §98. 32. See Watts, supra note 17, at 595. 33. McCormick on Evidence, supra note 12, § 98. 34. See id. § 76.2. 35. See id. 36. See Watts, supra note 17, at 588. 37. 28 U.S.C. §2072(1994). 1 998] FEDERAL PARENT-CHILD PRIVILEGE 263 rules as proposed, or to draft amendments to the rules. 38 Congress generally acquiesced to the rules promulgated by the Supreme Court until 1973, when the Court approved its Advisory Committee's draft of the Proposed Rules of Evidence and sent the draft to Congress for adoption. 39 Received by a skeptical Congress, the draft was highly debated with Proposed Article V that governed the application of privileges the "primary target for criticism" by Congress. 40 Proposed Article V recognized nine non-constitutional privileges, including "required reports, attorney-client, psychotherapist-patient, husband-wife, clergyman-communicant, political vote, trade secrets, secrets of state and other official information and identity of informer."* 1 Additionally, the proposed rules would have greatly narrowed the scope of the existing privileges 42 and restricted the judicial development of privileges by freezing federal privilege law and denying federal courts the power to create new privileges.43 After much debate and controversy, Congress rejected the proposed rule containing specific privileges and chose to adopt a much amended and broader privilege rule—FRE 501. 44 By granting federal courts the power to develop federal privilege law without any guidance as to how to exercise that power, the language of FRE 501, as adopted by Congress, has resulted in controversy over the scope of the federal courts' power to develop new privileges.45 38. Id. § 2074. 39. See Imwinkelried, supra note 7, at 512 (citing COMMUNICATION FROM THE CHIEF Justice of the United States Transmitting the Proposed Rules of Evidence of the United States Courts and Magistrates, H.R. Doc. No. 46 (1973)). 40. Id. at 513 (citing 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence 509-3 (1993)). 4 1 . McCormick on Evidence, supra note 1 2, § 75. 42. See Jeff. M. Sandlow, Confidential Communication Between Parent and Child: A Constitutional Right, 1 6 San DlEGO L. Rev. 811,816(1 979). The author suggests that by rejecting this narrowing of existing privileges, and by enacting broad privileges protecting confidential communication, Congress "was deferring to the societal mandate that a zone of privacy be maintained." Id. (footnote omitted). 43. See Imwinkelried, supra note 7, at 5 1 8. 44. As adopted, FRE 501 states: 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 pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof 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. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. Fed.R.Evid. 501. 45. See Imwinkelried, supra note 7, at 515; See also infra notes 47-55 and accompanying text. 264 INDIANA LAW REVIEW [Vol. 3 1 :259 II. Competing Approaches to the Creation of New Privileges The controversy surrounding privilege law exists on two levels. The first involves the development of new privileges and results from differing federal court interpretations as to whether FRE 501 permits recognition of novel privilege claims. The second is much broader as it involves different justifications for and beliefs about the value and use of privileges in judicial proceedings. Both of these controversies have affected the decisions of federal courts addressing privilege claims, and both are evident in the Supreme Court's most recent ruling on a novel psychotherapist-patient privilege. 46 As adopted, FRE 501 does not provide clear guidelines for federal courts to use in addressing novel privilege claims. Federal courts have widely differed as to the proper statutory interpretation ofFRE 501's mandate to "use principles of the common law" in light of "reason and experience" in developing privilege law. 47 One interpretation of the rule (referred to by some commentators as the "restrictive view") is that it precludes courts from recognizing any new privilege that did not exist at common law.48 As one commentator has suggested, this view lacks evidentiary support. 49 Not only did Congress refuse to adopt the proposed privilege rule containing nine specific privileges, but it also rejected a prohibition on the judicial development of new privileges.50 This suggests that Congress did not intend to preclude the development of new privileges. Additionally, the Supreme Court explicitly rejected this restrictive view of privileges when it noted that "[i]n rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privileges." 51 A second interpretation ofFRE 501 is that even if the rule does not preclude the recognition of new privileges, it "erects a 'strong presumption' against the creation of novel privileges." 52 The Supreme Court followed this cautionary approach when it refused to recognize a privilege for peer review materials, 46. Jaffe v. Redmond, 518 U.S. 1 (1996); see also infra notes 73-120 and accompanying text. 47. FED.R.EVID. 501. 48. See Imwinkelried, supra note 7, at 524. 49. See id. 50. See id. at 525-28. The author notes that one court has used the restrictive view when evaluating a novel privilege claim. See In re Grand Jury Proceedings, 867 F.2d 562, 565 (9th Cir. 1989). See also Daniel Capra, The Federal Law ofPrivileges, 16 LlTIG. 32 (Fall 1989). 51. Trammel v. United States, 445 U.S. 40, 47 (1980). 52. Imwinkelried, supra note 7, at 528 (quoting Capra, supra note 50, at 35-36); See also Molly Rebecca Bryson, Note, Protecting Confidential Communications Between a Psychotherapist and Patient: Jaffe v. Redmond, 46 Cath. U. L. Rev. 963 (1997). The author explained that "[l]ower courts' caution [in recognizing new privileges] stems from the reasonable inference that Congress did not support the recognition of new privileges when it chose to adopt the current language of Rule 501, rather than ratifying the nine privileges the Supreme Court recommended." Id. at 977. 1 998] FEDERAL PARENT-CHILD PRIVILEGE 265 stating that it did not want to use its power under Rule 501 "expansively. " f A third interpretation of FRE 501 takes two different forms, and both apply a more expansive approach to the creation of new privileges. Some federal courts believe that FRE 501 allows them to be more receptive to privilege claims than federal courts were permitted to be at common law.54 Other commentators have suggested that federal courts are as free to recognize new privileges under FRE 501 as they were under the common law.55 Federal courts have not only struggled with their authority (or lack thereof) to recognize new privileges, but have also struggled with which rationale or justification for privileges to apply when evaluating a novel privilege claim. Historically, courts have used two different approaches to the creation of new privileges. While both approaches balance the need for the protected evidence against the interests of the individual and society, the approaches vary regarding the use and value of testimonial privileges. 56 The first approach (one of the most influential approaches for the creation of new privileges) is the traditional utilitarian justification of Dean John H. Wigmore.57 His approach "supports the idea of using a privilege to encourage open communications within a confidential relationship that relies on such communication for its success." 58 Since this approach evaluates the effect that 53. University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). See also United States v. Burtrum, 17 F.3d 1299, 1301 (10th Cir. 1994) (refusing to recognize psychotherapist privilege in criminal cases); Mason v. Stock, 869 F. Supp. 828, 834 (D. Kan. 1994) (refusing to recognize self-critical analysis privilege). 54. See Imwinkelried, supra note 7, at 530. See also In re John Doe, 964 F.2d 1 325 (2d Cir. 1992) (psychotherapist-patient privilege); Covell v. CNG Transmission Corp., 863 F. Supp. 202, 205 (M.D. Pa. 1994) (psychiatrist-patient privilege); United States v. D.F., 857 F. Supp. 1311, 1319-20 (E.D. Wis. 1994) (psychotherapist-patient privilege); Mann v. University of Cincinnati, 824 F. Supp. 1 190, 1 197-98 (S.D. Ohio 1993) (general medical privilege). 55. See Imwinkelried, supra note 7, at 535. Imwinkelried ultimately concludes that the context of FRE 501 shows that Congress did not "reach the merits of the question of whether the courts should be receptive or hostile to privilege claims" and that courts should therefore decide such claims by "balancing the loss of probative evidence against the extrinsic values fostered by the privileges." Id. at 541. 56. See J. Tyson Covey, Note, Making Form Follow Function: Considerations in Creating and Applying a Statutory Parent-Child Privilege, 1990 U. III. L. REV. 879, 886(1990). 57. Dean Wigmore's approach uses the following four factors: 1. The communication must originate in confidence that it will not be disclosed. 2. This 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 must be greater than the benefit thereby gained for the correct disposal of the litigation. 8 John H. Wigmore, Evidence § 2285 (McNaughton rev. ed. 1961) [hereinafter Wigmore]. 58. Svetanics, supra note 28, at 732. 266 INDIANA LAW REVIEW [Vol. 3 1 :259 judicial recognition of a particular privilege will have on behavior outside of the courtroom, the approach is often referred to as an instrumental justification for privileges. 59 Wigmore's approach balances the benefit to society from encouraging a particular class of communication against the cost of impeding the fact-finding process. 60 A strong believer in the duty to testify, Wigmore focuses on extrinsic social policy and the systematic effects of a privilege claim, and does not consider the specific harm to a litigant whose privilege claim is denied.61 A majority of courts have followed Wigmore's narrow and constrictive approach in considering novel privilege claims. 62 Wigmore's justification for privileges requires certainty. A privilege beneficiary will be encouraged and convinced to share confidences when she is able to predict with certainty that the judiciary will find the confidence privileged. If unable to predict the privilege's application, the beneficiary may not feel secure enough to share her confidences. Critics of Wigmore's approach suggest that there is a lack of empirical evidence demonstrating that knowing about a particular privilege influences one's decision to communicate certain information. 63 These critics "commonly assert that people typically know little or nothing about their privilege and that, even if they did, the knowledge would rarely alter their communicative behavior." 64 A competing view regarding the use and value of privileges is referred to as the humanitarian or privacy justification. Under this non-instrumental view, the value of one's privacy in confidential communications is the justification for the privilege. 65 "Rather than focusing on the systemic impact that compelled disclosures might have on behavior, the privacy rationale focuses on the protection that privileges afford to individual privacy." 66 Supporters of this view suggest that compelled disclosure of confidences results in both embarrassment from revealing one's secrets to the public, and harm from being forced to betray another's confidence. 67 The focus is on protecting an individual's privacy interests and not on the utilitarian goal of promoting the public good by 59. See Developments in the Law—Privileged Communications, 98 Harv. L. Rev. 1471, 1472 (1985) [hereinafter Developments in the Law //]. 60. See id. at 1473. 61. See id. at 1473-74. 62. See Michael B. Bressman & Fernando R. Laguarda, Jaffe v. Redmond. Towards Recognition ofa Federal Counselor-Battered Woman Privilege, 30 CREIGHTON L. Rev. 319, 320 (1997). 63. See, e.g., Developments in the Law, supra note 10, at 1579-82; Imwinkelried, supra note 7, at 543; Daniel W. Shuman & Myron F. Weiner, The Privilege Study: An Empirical Examination ofthe Psychotherapist-Patient Privilege, 60N.C. L. Rev. 893 (1982) (discussing a lack of empirical evidence supporting view that the existence of a psychotherapist-patient privilege is of consequence to patients); Svenatics, supra note 28, at 754. 64. Developments in the Law II, supra note 59, at 1474 (footnote omitted). 65. See Svetanics, supra note 28, at 734. 66. Developments in the Law II, supra note 59, at 1480. 67. See id. at 1481. 1 998] FEDERAL PARENT-CHILD PRIVILEGE 267 encouraging the sharing of confidences. 68 Since it does not attempt to influence the behavior of persons outside the courtroom, the privacy rationale (unlike Wigmore's approach) does not require certainty to be effective. Because certainty is not required, the privilege can be a qualified one that balances the harm of compelled disclosure against the harm of keeping the evidence out of the judicial proceeding. 69 This balancing process is different from that used by Wigmore's approach. Wigmore's balancing process determines whether the judicial system should recognize an absolute privilege in all proceedings. Under the privacy rationale, the balancing process determines if a privilege should be applied in a particular judicial proceeding. Critics argue that this balancing process is flawed since it is difficult to measure or quantify an individual's privacy interest. 70 Finally, a third approach to privilege law has been suggested by one commentator. 71 Referred to as a "full utilitarian approach," this view considers both the systemic benefits to society of encouraging communications and the immediate benefits to an individual by protecting privacy. 72 This approach is purported to be superior to the traditional utilitarian and privacy rationales since it balances all relevant interests. 73 III. The Significance of Jaffe v. Redmond The Supreme Court's decision in Jaffe v. Redmond 74 reflects a dramatic shift in the Court's method of analyzing novel privilege claims. Prior to the Jaffe decision, the Supreme Court had used the language of FRE 501 to limit existing privileges and to refuse to adopt new privileges. This cautionary (and at times restrictive) approach by the Supreme Court greatly influenced the decisions of lower federal courts. Many federal courts declined to recognize new privileges because of their belief that FRE 501 did not give them the authority to honor any 68. See id. at 1483. The author suggests that the privacy rationale really is an instrumental approach that only has a different goal or focus than the traditional justification. [0]rders to compel testimony have two consequences: the invasive disclosure itself and the indirect effects of disclosure on the relevant class of relationships. Thus, the privacy rationale and the traditional justification are both really instrumental approaches that differ only in that they focus, respectively, on the direct and the indirect consequences of compelling testimony. Id. at 1486. 69. See CHARLES ALAN WRIGHTAND KENNETH W. GRAHAM, JR., 23 FEDERAL PRACTICE AND Procedure, Federal Rules of Evidence § 5422 (1995 & Supp. 1998). The authors further suggest that courts and legislature are more willing to create a qualified privilege that employs a balancing test "as it is less likely to produce injustice." Id. 70. See Developments in the Law II, supra note 59, at 1483. 71. See id. at 1484. 72. Id. at 1484-86. 73. See id. at 1484. 74. 518 U.S. 1(1996). 268 INDIANA LAW REVIEW [Vol. 3 1 :259 privileges that did not derive from the common law.75 The Jaffe decision involved a claim of psychotherapist-patient privilege, which arose after an on-duty police officer shot and killed a suspect. On June 27, 1991, Officer Mary Lu Redmond shot and killed Ricky Allen when Redmond responded to a police call to an apartment complex. 76 Redmond alleged that Allen ran out of the apartment building, chasing another man while brandishing a butcher knife. Allen also allegedly disregarded Redmond's repeated commands to drop the knife. 77 Redmond claimed that she shot Allen when she believed that he was about to stab the man he was chasing. 78 Petitioner, the administrator of Ricky Allen's estate, filed suit in the United States District Court for the Northern District of Illinois against Redmond and her employer, which at the time of the shooting, was the Village of Hoffman Estates, Illinois. Petitioner alleged that Redmond violated Allen's constitutional rights by using excessive force during the encounter at the apartment complex. 79 A jury found for the estate. 80 During the trial, the judge ordered Redmond to give the plaintiff some notes that had been made by Karen Beyer, a licensed clinical social worker who had counseled Redmond after the shooting. 81 Redmond claimed that these notes were protected from involuntary disclosure by a psychotherapist-patient privilege. Even though the district judge rejected this argument, neither Beyer nor Redmond complied with the court's order. The district judge "advised the jury that the refusal to turn over Beyer's notes had no 'legal justification' and that the jury could therefore presume that the contents of the notes would have been unfavorable to respondents." 82 Redmond appealed and the Court ofAppeals for the Seventh Circuit reversed and remanded for a new trial. 83 Using "reason and experience" according to FRE 501, and after balancing the importance of the patient's privacy interest against the evidentiary need for disclosure, the Seventh Circuit concluded that a psychotherapist-patient privilege should be recognized. 84 Since there was a conflict among the courts of appeals regarding the recognition of a federal psychotherapist-patient privilege, 85 the United States Supreme Court granted 75. See Bryson, supra note 52, at 980. 76. Jaffe, 518 U.S. at 4. 77. Id. 78. Id. 79. Id. at 5. 80. Id. 81. Id. 82. Id. 83. Id. 84. Id. 85. See id. at 7. The majority cited the following decisions in noting the conflict among the appeals courts: United States v. Burtrum, 17 F.3d 1299 (10th Cir. 1994); In re John Doe, 964 F.2d 13^5 (2d Cir. 1992); In re Grand Jury Proceedings, 867 F.2d 562 (9th Cir. 1989); United States v. Corona, 849 F.2d 562 (1 1th Cir. 1988); In re Zuniga, 714 F.2d 632 (6th Cir. 1983); United States v. Meagher, 531 F.2d 752 (5th Cir. 1976). 1 998] FEDERAL PARENT-CHILD PRIVILEGE 269 certiorari and, in a 7-2 decision, affirmed the Seventh Circuit's ruling. 86 Writing for the majority, Justice Stevens turned to the legislative history of FRE 501 and noted that the development of new privileges should be determined on a "case- by-case basis." 87 Reasoning that the intent of FRE 501 was not to freeze the development of privilege law, Justice Stevens noted how federal courts are to "continue the evolutionary development of testimonial privileges.'* 8 He also relied heavily on language from the Court's earlier opinion in Trammel v. United States* 9 a case in which the Court actually limited the scope of the common law adverse spousal testimony privilege. Acknowledging that evidentiary law is based on the maxim that the public has a right to every man's evidence, 90 the majority determined that exceptions may be justified by a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.'* 1 The majority then determined that reason and experience indicate that a "privilege protecting confidential communications between a psychotherapist and her patient 'promotes sufficiently important interests to outweigh the need for probative evidence.'" 92 The Court enumerated both private and public interests that a psychotherapist-patient privilege would promote. Comparing the privilege to both the spousal and attorney-client privileges, the Court noted how the psychotherapist-patient privilege is "rooted in the imperative need for confidence and trust." 93 Using a utilitarian approach to privilege law, 94 the Court reasoned that effective psychotherapy depended on a patient's willingness to frankly and completely disclose information. 95 The Court also reasoned that the patient must believe a therapist's assurance of confidentiality in order to feel comfortable disclosing private information. 96 Accordingly, a psychotherapist-patient privilege would encourage the private interest of effective psychotherapy. 97 Such a privilege would also promote the public's interest in the mental health of its citizenry since the privilege "facilitates] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.'* 8 After balancing these private and public interests promoted by the privilege against the value of the evidence protected, the majority concluded, "the likely evidentiary 86. Jaffe, 518 U.S. at 8. 87. Id. (quoting S. REP. No. 93-1277, at 13 (1974)). 88. Id. at 9 (quoting Trammel v. United States, 445 U.S. 40, 47 (1980)).' 89. 445 U.S. 40(1980). 90. Jaffe, 518 U.S. at9n.8. 91 . Id. at 9 (quoting Trammel, 445 U.S. at 50). 92. Id. (quoting Trammel, 445 U.S. at 51). 93. Id. 94. See supra notes 57-64 and accompanying text. 95. Jaffe, 518 U.S. at 10. 96. Id. 97. Id. at 10-11. 98. Mat 11. 270 INDIANA LAW REVIEW [Vol. 3 1 :259 benefit that would result from the denial of the privilege is modest." 99 The Court further supported its recognition of a psychotherapist-patient privilege by noting that all states had enacted some form of a psychotherapist- patient privilege and reasoning that "the existence of a consensus among the States indicates that 'reason and experience' support recognition of the privilege." 100 Referring to its earlier decision in Funk v. United States,m the court accepted the policy decisions of the states as reflective of the wisdom in recognizing a psychotherapist-patient privilege. 102 The Advisory Committee's inclusion of a psychotherapist-patient privilege in its draft of privilege rules also seems to have influenced the Court's recognition of an absolute psychotherapist-patient privilege. 103 In recognizing this absolute privilege, the Supreme Court explicitly rejected the Seventh Circuit's balancing approach. 104 The Court determined that in order to promote full disclosure by a patient, the patient "must be able to predict with some degree of certainty whether particular discussions will be protected." 105 Additionally, in one of the most controversial parts of its holding, the Court went a step further than the Seventh Circuit by extending the protection of the privilege to confidential communications made by a patient during therapy to a licensed social worker. 106 Justice Scalia, with the Chief Justice joining in part, strongly dissented. 107 Reminding the majority that the Court had previously used the language of FRE 501 to reject new privileges 108 and to narrow existing privileges, 109 Justice Scalia criticized the majority for ignoring "traditional judicial preference for the truth" and for "creating a privilege that is new, vast, and ill-defined." 110 Justice Scalia also questioned the majority's determination that the private and public interests in psychotherapy justify creating a new privilege that excludes relevant evidence 99. Id. 100. Mat 12-13. 101. 290 U.S. 371, 376-381 (1933) (finding that it was appropriate to treat a consistent body of policy determinations by state legislatures as reflecting both "reason" and "experience"). 102. Jaffe, 518 U.S. at 13. 103. See id. at 13-14. 104. Id. at 17. 105. Id. at 18 (quoting Upjohn v. United States, 449 U.S. 383, 393 (1981)). 106. Id. at 17-18. 107. Id. at 18 (Scalia, J., dissenting). 108. See University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) (rejecting privilege for peer review materials); United States v. Arthur Young & Co., 465 U.S. 805 (1984) (refusing to recognize an accountant-client privilege); United States v. Gillock, 445 U.S. 360 (1980) (rejecting privilege for legislative acts by a member of a state legislature). 109. See United States v. Zolin, 491 U.S. 554 (1989) (permitting in camera review of documents alleged to come within crime-fraud exception to the attorney-client privilege); Trammel v. United States, 445 U.S. 40 (1980) (limiting spousal adverse testimony privilege). 110. Jaffe, 518 U.S. at 19-20. 1 998] FEDERAL PARENT-CHILD PRIVILEGE 27 1 from a judicial proceeding. 111 The majority's willingness to extend the privilege to licensed social workers 112 and to rely on the legislative policy decisions of the states also prompted sharp criticism from Justice Scalia. 113 The Supreme Court's decision in Jaffe provoked much scholarly debate about the wisdom ofthe Court's decision. 114 The Jaffe decision is controversial mainly because it manifests the Supreme Court's first recognition of a novel privilege claim (one that was not recognized by the common law) under FRE 501. Some commentators argue that the majority's decision is sound because it reflects our current social climate, 115 and because the privilege promotes important public and private interests that outweigh the need for the protected evidence. 116 Several other commentators have assailed the decision on various grounds. The majority has been criticized for failing to apply correctly the balancing approach mandated by FRE 50 1, 117 for expanding the privilege to licensed social workers 118 and for creating an undefined privilege. 119 [Jaffe] is a strange case as it creates a privilege that extends endlessly. Justice Stevens refers to Congress' earlier rejection of the Advisory Committee's recommendation of a psychotherapist-patient privilege, but then he ultimately decides to recognize the privilege. The court is flying in the face of its own history. 120 The majority has also been criticized for relying on the decisions of state legislatures in making federal law, 121 and for stepping into a policy debate that Congress is better suited to handle. 122 The Jaffe decision has refueled the debate over the scope of federal courts' power to recognize new privileges. Since the adoption of the Federal Rules of Evidence in 1975, federal courts have been confused about the correct interpretation of FRE 501 and their institutional competence to recognize new ill. Mat 20. 112. Mat 21. 113. Mat 25-26. 1 14. See, e.g., Bryson, supra note 52, at 963; Faughnan, supra note 9; M. Brett Fulkerson, Note, One Step Forward, Two Steps Back: The Recognized But Undefined Federal Psychotherapist-Patient Privilege, 62 Mo. L. Rev. 401 (1997); Jason L. Gunter, Note and Comment, Jaffe v. Redmond: The Supreme Court Recognizes the Psychotherapist-Patient Privilege in the Federal Courts and Expands the Privilege to Include Social Workers, 21 NovA L. Rev. 719 (1997); Svetanics, supra note 28. 115. See Gunter, supra note 1 1 4, at 7 1 9. 1 16. See Faughnan, supra note 9, at 719-20. 1 1 7. See Svetanics, supra note 28, at 753-54. 1 1 8. See Faughnan, supra note 9, at 720. 119. See Fulkerson, supra note 1 1 4, at 4 1 8-24. 120. Harvey, supra note 4. 121. See Svetanics, supra note 28, at 754. 122. See id. at 759. 272 INDIANA LAW REVIEW [Vol. 3 1 :259 privileges. 123 The Supreme Court's first opportunity to apply FRE 501 to an existing privilege was in 1980. 124 In Trammel v. United States, the Court acknowledged that FRE 501 gives federal courts the authority to develop privilege law, and then used its authority to narrow the adverse spousal testimony privilege. 125 Noting a trend in state law "toward divesting the accused of the privilege to bar adverse spousal testimony," 126 the Court held that "the witness- spouse alone has a privilege to refuse to testify adversely." 127 The court reasoned that if one spouse is willing to testify against the other, then the privilege's justification of trying to preserve marital harmony is likely inappropriate.128 The Trammel decision proved influential on lower courts in the coming years as "[t]he Court's restriction of the spousal privilege was an implicit signal to lower courts that it would not extend privileges broadly and would not advocate lower courts to do so either." 129 One month after Trammel, the Supreme Court addressed the first of two cases involving a novel privilege claim under FRE 501. In United States v. Gillock, ]3° the Court declined to recognize a privilege for state legislators in federal criminal prosecutions. 131 Using a restrictive view 132 of FRE 501, the Court noted that during the legislative adoption process of FRE 501, "[njeither the Advisory Committee, the Judicial Conference, nor this Court saw fit . . . to provide the privilege sought by Gillock." 133 The Court also explained that while the existence of a state privilege should be taken into consideration, state recognition was not dispositive. 134 In 1990, the Court addressed a second novel privilege claim under FRE 501 . In University ofPennsylvania v. Equal Employment Opportunity Commission,* 25 the Court used a cautionary approach to privileges and refused to recognize a privilege protecting peer review materials in tenure decisions. 136 Acknowledging its authority to develop new privileges under FRE 501, the Court cautioned against using this authority expansively. 137 The Court defined a framework for reviewing novel privilege claims, explaining that a new privilege should not be adopted unless doing so "promotes sufficiently important interests to outweigh 123. See Bryson, supra note 52, at 966; see also supra notes 47-55 and accompanying text. 124. See Trammel v. United States, 445 U.S. 40 (1980). 125. Id. at 47, 53. 126. Id. at 49-50. 127. Id. at 53. 128. Id. at 52. 129. Bryson, supra note 52, at 978. 130. 445 U.S. 360(1980). 131. Mat 374. 132. See supra notes 48-51 and accompanying text. 133. Gillock, 445 U.S. at 367. 134. Id. at 368, n.8. 135. 493 U.S. 182(1990). 136. Id. at 189. 137. Id. 1 998] FEDERAL PARENT-CHILD PRIVILEGE 273 the need for probative evidence." 138 The next novel privilege claim that the Supreme Court considered was the psychotherapist-patient privilege in Jaffe v. Redmond} 29 While applying the same analytical framework as it did in University ofPennsylvania™ the Court took a more liberal approach in recognizing a psychotherapist-patient privilege. Jaffe presented the Court with an opportunity to "kill two birds with one stone." 141 Not only could the court address the conflict among the circuit courts regarding a psychotherapist-patient privilege, but it could also address the conflict regarding the correct approach to use in evaluating novel privilege claims under FRE 501. 142 Unfortunately, the Court failed to clearly resolve either conflict. By creating an undefined privilege that extends to licensed social workers, the Court may have unwittingly caused more confusion about the application of the privilege. In addition, "[t]he Supreme Court's liberal methodology in Jaffe conflicts with the Court's more conservative earlier decisions, making the Court's approach to novel privilege claims under Rule 501 even more unclear."143 Although the Court may have muddied the waters regarding the scope of federal courts' authority to develop privilege law, the Court's recognition of a psychotherapist-patient privilege has also implicitly encouraged federal courts to be more open to new privilege claims. IV. Examination of a Parent-Child Privilege Support for a parent-child privilege did not develop until the late 1970s and early 1980s when a few courts 144 began to recognize the privilege and a number of law review articles supporting the privilege were published. 145 In the federal court system, only district courts in Nevada and Connecticut recognized the parent-child privilege until 1996. 146 At the state level, only four states currently provide any type of protection for parent-child communications. New York, the 138. Id. (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). 139. 518 U.S. 1(1996). 140. 493 U.S. 182(1990). 141 . Svetanics, supra note 28, at 757. 142. See id. 143. Id. 144. See, e.g., In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298 (D. Nev. 1983); People v. Fitzgerald, 422 N.Y.S.2d 309 (1979); In re A & M, 403 N.Y.S.2d 375 (1978). 145. See Covey, supra note 56, at 882-83; see also Ellen Kandoian, The Parent-Child Privilege and the Parent-Child Crime: Observations on State v. DeLong and In Re Agosto, 36 Me. L. Rev. 59 (1984); Sanford Levison, Testimonial Privileges and the Preferences ofFriendship, 1984 Duke L.J. 631 (1984). 146. See In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298 (D. Nev. 1983) (upholding both adverse testimonial and confidential communications parent-child privileges);//! re Grand Jury Proceedings (Greenberg), 11 Fed. R. Evid. Serv. (Callaghan) 579 (D. Conn. 1982) (upholding parent-child privilege based on the free-exercise clause and Jewish law which forbids parents and children from testifying against each other). 274 INDIANA LAW REVIEW [Vol. 3 1 :259 only state with a judicially recognized parent-child privilege, found that a parent- child privilege exists based on the right to privacy found in the Constitution. 147 Many other state courts facing this issue have determined that it would be more appropriate if the legislature recognized the privilege. 148 This is the sole option for some states in which judicial expansion of privilege law is forbidden. 149 Idaho, 150 Minnesota 151 and Massachusetts 152 are the only states that have some 147. See People v. Fitzgerald, 422 N.Y.S.2d 309, 314 (1979). 148. See, e.g., People v. Sanders, 457N.E.2d 1241, 1244-45 (III. 1983); State v. Gilroy, 313 N.W.2d 513, 518 (Iowa 1981); People v. Dixon, 411 N.W.2d 760, 762 (Mich. Ct. App. 1987); Grussing v. KVAM Implement Co., 478 N.W.2d 200, 205 (Minn. Ct. App. 1991); In re Gail D., 525 A.2d 337, 339 (N.J. Super. Ct. App. Div. 1987). 149. See, e.g., NEV. Rev. Stat. § 49.015 (1997); Okla. STAT. tit. 12, § 2501 (1997). 150. Idaho Code § 9-203(7) (1998). Any parent, guardian or legal custodian shall not be forced to disclose any communication made by their minor child or ward to them concerning matters in any civil or criminal action to which such child or ward is a party. Such matters so communicated shall be privileged and protected against disclosure; excepting, this section does not apply to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by violence of one against the person of the other, nor does this section apply to any case of physical injury to a minor child where the injury has been caused as a result of physical abuse or neglect by one or both of the parents, guardian or legal custodian. Id. Id. 151. Minn. Stat. Ann. § 595.020) (West Supp. 1998). 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. A communication is confidential if made out of the presence of persons not members of the child's immediate family living in the same household. This exception may be waived by express consent to disclosure by a parent entitled to claim the privilege or by the child who made the communication or by failure of the child or parent to object when the contents of a communication are demanded. This exception does not apply to a civil action or proceeding by one spouse against the other or by a parent or child against the other, nor to a proceeding to commit either the child or parent to whom the communication was made or to place the person or property or either under the control of another because of an alleged mental or physical condition, nor to a criminal action or proceeding in which the parent is charged with a crime committed against the person or property of the communicating child, the parent's spouse, or a child of either the parent or the parent's spouse, or in which a child is charged with a crime or act of delinquency committed against the person or property of a parent or a child of a parent, nor to an action of proceeding for termination of parental rights, nor any other action or proceeding on a petition alleging child abuse, child neglect, abandonment or nonsupport by a parent. 1 52. Mass. Gen. Laws Ann. ch. 233, § 20 (West Supp. 1 998). An unemancipated, minor child, living with a parent, shall not testify before a grand 1 998] FEDERAL PARENT-CHILD PRIVILEGE 275 form of statutory parent-child privilege for children less than eighteen-years-old and their parents. This sparse judicial recognition or legislative codification of a parent-child privilege may have resulted from a historical, unwritten practice forbidding parents and children from being called to testify against each other. 153 As explained by one court addressing a parent-child privilege claim, "the paucity of authority on this topic may reflect a deep-seated sense of respect for the family on the part of state and federal prosecutors." 154 This historical practice of not calling parents and children to testify against each other reflects the value that society has put on family harmony. 155 Some scholars propose that a parent-child privilege protects this interest by preserving a witness' interest in freely choosing between her loyalty to her family member and her obligation to the state to testify. 156 Under this view, the privilege belongs to the witness and cannot be invoked by the other person involved in the communication. 157 This rationale is similar to that of the adverse spousal testimony privilege, which prevents a witness from being forced to testify against her spouse, but allows the witness to testify voluntarily over her spouse's objection. 158 A. Arguments Previously Advanced in Support ofa Parent-Child Privilege 1. Legal Arguments . —A legal argument frequently advanced in support of a parent-child privilege is that the failure to recognize such a privilege violates a litigant's constitutional right to privacy. 159 This argument is based on Supreme jury, trial of an indictment, complaint or other criminal proceeding, against said parent, where the victim in such proceeding is not a member of said parent's family and who does not reside in the said parent's household. For the purposes of this clause the term "parent" shall mean the natural or adoptive mother or father of said child. Id. 153. See Doug Most, A Court Has Ears Inside the Home; Parent-Child Secrets Not Safe, The Record, (N.J.), Dec. 7, 1997 at Al. 154. In re Grand Jury Proceedings (Unemancipated Minor Child), 949 F. Supp. 1487, 1491 (E.D. Wash. 1996). The court further explained that this sense of respect for the family is "a reflection of the common law in action, whereby prosecutors presume that such testimony would be subject to some sort of parent-child privilege." Id. 155. See Kandoian, supra note 145, at 82. The author further explains that "[t]he law of parent-child privilege is perhaps undeveloped because the parent-child bond is'so revered in our culture that the thought of using forced testimony of children to prosecute parents has traditionally been considered beyond the bounds of decency in the minds of even the most zealous prosecutors." Id. at 82-83. 156. See Kandoian, supra note 145, at 76. 157. See id. 158. See supra notes 10-16 and accompanying text. 159. See, e.g., Yolanda L. Ayala & Thomas C. Martyn, Note, To Tell or Not to Tell? An Analysis of Testimonial Privileges: The Parent-Child and Reporter 's Privileges, 9 ST. JOHN'S J. LEGAL COMMENT. 163, 175-76 (1993); Jeffrey Begens, Parent-Child Testimonial Privilege: An Absolute Right or an Absolute Privilege?, 1 1 U. DAYTON L. REV. 709, 724-27 (1986); Betsy Booth, 276 INDIANA LAW REVIEW [Vol. 3 1 :259 Court decisions recognizing fundamental family privacy rights. 160 In one unanimous Supreme Court decision, 161 Justice Stevens explained how the constitutional right to privacy encompasses two distinct interests. These interests include the "individual interest in avoiding disclosure of personal matters" and a family or individual's interest "in the independence in making certain kinds of important decisions." 162 Using this rationale and other Supreme Court decisions, 163 a few lower courts have recognized a parent-child privilege based on a constitutional right to privacy. 164 As the Federal District Court of Nevada explained in In re Grand Jury Proceeding (Agosto)}65 "Testimonial privileges have been regarded as important safeguards of the right to privacy." 166 Recognizing a parent-child communications privilege and a testimonial disqualification for family members, the court stated: While the government has an important goal in presenting all relevant evidence before the court in each proceeding, this goal does not outweigh an individual's right of privacy in his communications within the family unit, nor does it outweigh the family's interests in it's integrity and inviolability, which spring from the rights of privacy inherent in the family relationship itself. 167 This privacy right argument was also persuasive to a New York Appellate Court when it found communications between family members were privileged since they fell under the constitutional right to privacy. 168 Despite these decisions, most courts have declined to find a parent-child privilege based on the constitutional right to privacy. 169 Critics of the privacy Underprivileged Communications: The Rationalefor a Parent-Child Testimonial Privilege, 36 Sw. L.J. 1175, 1181-85 (1983); Sandlow, supra note 42, at 819-27; Ann M. Stanton, Child-Parent Privilegefor Confidential Communications: An Examination and Proposal, 16FAM. L.Q. 1, 13-24 (1982), at 13-24; Watts, supra note 17, at 600-05. 160. See Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1977) (holding that the Constitution protects the sanctity of the family); Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) (holding, in part, that parents have the right to assume the primary role in decisions concerning the upbringing of their children); Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925) (finding that parents have a constitutional right to send their children to parochial school); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (finding constitutional protection of family autonomy based on an expansive interpretation of the Fourteenth Amendment). 161. Whalen v. Roe, 429 U.S. 589 (1977). 162. Mat 599-600. 163. See supra notes 158-59. 164. See, e.g., In re Grand Jury Proceeding (Agosto), 553 F. Supp. 1298 (D. Nev. 1983); In re Application of A&M, 61 A.D.2d 426 (1978). 165. In re Grand Jury Proceeding (Agosto), 553 F. Supp. at 1298. 166. Id. at 1310. 167. Mat 1325. 168. See In re A & M, 403 N.Y.S.2d 375, 434-35 (N.Y. App. Div. 1978). 169. See, e.g., Port v. Heard, 764 F.2d 423, 430 (5th Cir. 1985); In re Grand Jury 1 998] FEDERAL PARENT-CHILD PRIVILEGE 277 right theory point out that the Supreme Court has been hesitant to broadly construe any family right to privacy and that even when such a right is recognized, the right is not absolute. 170 The theory is also problematic because the very notion of constitutional privacy rights has been criticized as lacking explicit textual support in the Constitution. 171 A second constitutional argument offered to support a parent-child privilege is "that compelling testimony from a child will violate the tenets of the family's religious beliefs and infringe upon the free exercise right provided by the first amendment." 172 Both early Jewish and Roman law barred family members from testifying against one another. 173 Jewish law is based on the Torah (the five books of Moses) and its interpretation (The Tradition). 174 One of the Torah's rules "specifically 'forbids a parent from testifying against his or her children.'" 175 Similarly, ancient Roman law also respected the family. "Early Roman law recognized the rule oftestimonium domesticum, which mandated that parents, children, patrons, freedmen, and slaves could not be compelled to give testimony against each other." 176 This free exercise of religion argument was presented to the District Court for the Southern District of Texas. In Port v. Heard, 111 two Jewish parents refused to testify in grand jury proceedings against their seventeen-year-old son. The parents maintained that since "rabbinical law prohibits Jewish parents and children from testifying against one another in canonical proceedings," 178 the First Amendment's guarantee of free exercise of religion mandates the recognition of a parent-child privilege. 179 More recently, this free exercise argument was advanced in the highly publicized Delaware case of Amy Grossberg, a nineteen-year-old woman accused of murdering her newborn child. 180 In a pre-trial motion to suppress a subpoena, Grossberg' s parents argued that their Jewish religion forbade them from testifying against their daughter, and Proceedings (Vnemancipated Minor Child), 949 F. Supp. at 1490; Diehl v. State, 698 S.W.2d 712, 717 (Tex. Ct. App. 1985) (Levy, J., dissenting) (commenting that the majority completely ignored the right to privacy parent-child privilege argument forwarded to quash evidence). 170. See Schlueter, supra note 6, at 47-50. 171. See Kandoian, supra note 1 45, at 80. 1 72. Schlueter, supra note 6, at 50 (citations omitted). 1 73 . See Watts, supra note 1 7, at 59 1 -93 . 174. See id. at 591-92. 175. Id. (quoting In re Grand Jury Proceedings (Greenburg), 11 Fed. R. Evid. Serv. (Callaghan) 579, 581 & n.6 (D. Conn. 1982)). 176. Id. 2X592. 177. 594 F. Supp. 1212, 1215 (S.D. Tex. 1984). 178. M at 1218. 179. Id. at 1218-19. See also In re Grand Jury Proceedings (Greenberg), 1 1 Fed. R. Evid. Serv. (Callaghan) at 582 (recognizing limited parent-child privilege based on the First Amendment). 1 80. See Todd Spangler, Suspect 's Folks May Be Forced to Tell All, HARRISBURG PATRIOT & Evening News, Nov. 26, 1997, at B6. 278 INDIANA LAW REVIEW [Vol. 3 1 :259 they should not have to submit to interviews with prosecutors. 181 The court rejected this argument, ruling that the prosecution has a right to interview the Grossbergs "to ensure a fair opportunity for rebuttal." 182 Opponents of the free exercise theory point out that it would be difficult to codify a parent-child privilege based on religious beliefs because of the possible conflict among religious values. 183 In addition, opponents argue that since the freedom to practice one's religion is not absolute, the need for reliable evidence in a trial would likely qualify as a compelling state interest supporting the denial of a parent-child privilege. 184 Another argument advanced by some litigants and scholars for the adoption of a parent-child privilege is that FRE 501 authorizes the judicial creation of new evidentiary privileges. Supporters of this expansive view argue that FRE 501 's broad language "left the door open for the judicial adoption of privileges such as the parent-child privilege[]." 185 Most courts have rejected this argument, taking a much more restrictive approach to the creation of new privileges. 186 2. Social Policy Arguments.—Many scholars maintain that a parent-child privilege works to help preserve the family and foster the parent-child relationship. They suggest that the single event of forcing a child or parent to testify against the other may irreparably harm the parent—child relationship. 187 Building upon this theory, others argue that strong family relationships that foster communication and family loyalty help prevent juvenile delinquency. 188 One commentator explained: "Parents bear almost complete responsibility for the early socialization of their children, and studies show that this early training is the most significant influence in the child's development of both a self image and an ability to interact with society." 189 Responding to this theory, critics argue that there is no empirical data showing that the recognition of a parent-child 181. See id. 1 82. Matthew Futterman, Grossberg 's Parents Must Give Testimony, Star LEDGER, Jan. 24, 1998, at 13. 1 83. See Schlueter, supra note 6, at 50. 184. See id. at 51-52. 185. Watts, supra note 17, at 606. The author continues by asserting that the legislative history behind the adoption of Rule 501 supports the proposition that a parent-child privilege should be recognized. The author refers to statements made by Representative Hungate immediately prior to the adoption of FRE 501 : Rule 501 is not intended to freeze the law of privilege as it now exists. The phrase "governed by the principles of the common law as they may be interpreted ... in light of reason and experience" is intended to provide the courts with the flexibility to develop rules of privilege on a case-by-case basis. Id. at 606-07 (citing 120 CONG. REC. 40, 891 (1974)). 1 86. See supra notes 47-5 1 and accompanying text. 1 87. See Covey, supra note 56, at 889. 1 88. See, e.g., Ayala & Martyn, supra note 1 59, at 1 76-77. 1 89. Franklin, supra note 1 1 , at 1 67 (citing Alan Coffey, The Prevention of Crime and Delinquency 56 (1975)). 1 998] FEDERAL PARENT-CHILD PRIVILEGE 279 privilege promotes frank and confidential discussions between a parent and child. 190 Another social policy argument is based on the purported "natural repugnancy" of forcing a parent or child to testify against the other or to reveal confidential communications. 191 Proponents of this theory suggest that people feel a natural revulsion to the idea of family members being forced to testify against each other. 192 "[I]f there is one universal, indeed primeval, principle of morality, it is that one must not deliver one's friends [or family members] to their enemies." 193 Additionally, commentators often refer to totalitarian governments as a reminder of the consequences of unrestrained state power. 194 Critics reply that a parent-child privilege is not needed to restrain government power, as the natural repugnance of forcing a parent or child to testify against the other is sufficient to protect the parent-child relationship. 195 Somewhat related to this natural repugnancy theory is the view that forcing a parent or child to testify against the other harms the image of the judicial system. Supporters of this image theory "suggest that privileges should exist because they enhance public acceptance of the legal system." 196 If citizens feel a natural repugnancy to the idea of parents and children testifying against each other, then these citizens will likely also be unhappy with and possibly unwilling to accept a legal system that employs such repugnant means. 197 Under this theory, the legal system as a whole ends up suffering the consequences of compelling a witness to testify against her child or parent because "[wjhether the witness succumbed to governmental pressure or refused to testify, the public could perceive the system as unfair." 198 Another justification that focuses on the unfairness of forcing a parent or child to testify against the other is often referred to as the "Witnesses' 190. See Schlueter, supra note 6, at 53. 191. See Watts, supra note 17, at 61 1-13; see also In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298, 1305-06 (D. Nev. 1983). 1 92. See Covey, supra note 56, at 889. 193. Id. (quoting Peter Berger, Editorial, Now, "Boat People " From Taiwan?, N.Y. TIMES, Feb. 14, 1978, at 35, col. 4). 1 94. See Watts, supra note 17, at 61 1-12. The author states that "[t]he actions of totalitarian governments should serve as adequate reminders of the horrors which thrive when certain relationships are deemed subordinate to the state." Id. 195. See Schlueter, supra note 6, at 54. "Few prosecutors are willing to incur public wrath and criticism for needless use of testimony of either a child or a parent against the other. In short, the fear of abuse is simply not sufficiently well-founded to justify the codification of a parent-child privilege and is certainly not grounds for blanket exclusion of otherwise reliable evidence." Id. 196. Developments in the Law, supra note 10, at 1585. 197. See Doug Most, Judge Upholds Subpoena For Grossberg Parents, Couple Must Talk to Prosecutors, Bergen RECORD, Jan. 24, 1998, at A2. The author reports how a "potential downside" to prosecutors forcing parents to testify against their children "is that a jury could hold it against [a prosecutor] for trying to turn the parents against [their children]." Id. 198. Developments in the Law, supra note 10, at 1585. 280 INDIANA LAW REVIEW [Vol. 3 1 :259 Dilemma." 199 Proponents of this theory maintain that calling a parent or child to testify against the other creates a dilemma for the witness. The witness must either (1) testify truthfully and condemn the accused-relative, (2) testify falsely and commit perjury, or (3) refuse to testify and risk contempt. 200 The consequences of putting a child in the position of choosing between loyalty to a parent and loyalty to the state are especially grave. "This would necessarily require the State to actively punish selflessness and loyalty which are inculcated into children by their families, their churches, and even the State itself, and not only where such values are deemed consistent with the State's purposes."201 Additionally, a few commentators 202 and at least one court 203 have suggested that by forcing a witness into such a dilemma, the legal system as a whole will suffer. Presumably, the legal system will suffer because the witness may be strongly motivated to commit perjury and thus provide the trier of fact with unreliable evidence. 204 As one commentator explained, "the government often has considerably more to lose than to gain when it attempts to compel parental testimony. The situation presents great potential for harm to the child, to the parent, and to the legal system." 205 C. Analysis ofFederal and State Court Decisions Rejecting a Parent-Child Privilege Despite the various legal and social theories that have been offered in support of a parent-child privilege, the majority of federal and state courts faced with such a claim have declined to recognize the privilege. A few common factors are present in federal court decisions rejecting the privilege. The following case analyses are representative ofthe numerous examples of these factors. The first factor is the influence of the Supreme Court's cautionary approach to the development of privilege law. In GrandJury Proceedings ofJohn Doe v. United States, 206 the Tenth Circuit rejected a claim of parent-child privilege based on a minor's constitutional right to free exercise of religion. In that case, a fifteen- year-old boy refused to testify about his mother before a grand jury, claiming that such testimony would violate the free exercise of his Mormon religious beliefs.207 After noting that a parent-child privilege was not recognized at common law208 and that the two federal district court decisions recognizing a parent-child 1 99. See, e.g., Watts, supra note 1 7, at 6 1 3- 1 5. 200. See id. at 613. 201. Diehl v. State, 698 S.W.2d 712, 720-21 (Tex. Ct. App. 1985). 202. See Franklin, supra note 1 1, at 169; Kandoian, supra note 145, at 71. 203. See In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298, 1309-10 (D. Nev. 1983). 204. See Parent-Child Loyalty and Testimonial Privilege, 100 Harv. L. Rev. 910, 922 (1987). 205. Franklin, supra note 1 1, at 169. 206. 842 F.2d 244, 248 (10th Cir. 1988). 207. Id. 208. Id. at 246. 1998] FEDERAL PARENT-CHILD PRIVILEGE 281 privilege had not been followed, 209 the majority opinion observed the Supreme Court's reluctance to create new privileges and denied the boy relief. 210 In 1984, the Eleventh Circuit also relied on the Supreme Court's rationale when it heard an appeal from a district court's order forcing an adult witness to testify before a grand jury regarding the investigation of his father. 211 The son claimed a common law parent-child privilege under FRE 501 . 212 The court noted that every other federal court of appeals that had considered a claim of a parent- child privilege had refused to recognize the privilege. 213 In addition, following the Supreme Court's rationale, the Eleventh Circuit noted that "'[privileges against forced disclosure' are 'exceptions to the demand for every man's evidence' and are 'not lightly created nor expansively construed, for they are in derogation of the search for truth.'" 214 A second common factor present in federal court decisions refusing to recognize a parent-child privilege is the idea that the privilege may be appropriate under other facts not presented to the court. This factor was present in the Sixth Circuit's rejection of a claim of parent-child privilege by a defendant whose emancipated adult son was subpoenaed to testify in grand jury proceedings. 215 The defendant argued that such a privilege was "analogous to the spousal privilege" as it "would serve the public interest in preserving the harmony and confidentiality of the parent-child relationship." 216 While acknowledging that it had the power to recognize new privileges under FRE 501 , the court used a cautionary approach 217 to reject the privilege claim and noted that its "power must be used sparingly." 218 The court also specifically did not address situations involving unemancipated minors, noting that minors "generally require much greater parental guidance and support than do emancipated adults." 219 The Fourth Circuit also hinted that a parent-child privilege might be appropriate under different factual circumstances when the court rejected a twenty-nine-year-old son's claim of family privilege. 220 The son maintained that he should not have to testify before a grand jury about his father's actions. 221 The 209. The decisions are In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298 (D. Nev. 1983); In re Grand Jury Proceedings (Greenburg), 11 Fed. R. Evid. Serv. (Callaghan) 579 (D. Conn. 1982). 210. In re Grand Jury Proceedings ofJohn Doe, 842 F.2d at 248. 211. In re Grand Jury Subpoena (Santarelli), 740 F.2d 816 (1984) (per curiam). 212. Id. 213. 7