How Parent-Child Privilege Might Impact Your Child’s Criminal Case

Parent-child privilege prevents forced disclosure by the state of confidential communications between a parent and a child of any age, if the parties assert the privilege.

What Is Parent-Child Privilege?

Parent-child privilege protects family members from testifying against each other in a criminal case. Whether it’s a child or a parent who is accused or charged with a criminal offense, if the parties assert the parent-child privilege, neither can be forced to share any incriminating information they may know through confidential family communications.

When a child is involved in a crime or at risk of arrest for some type of criminal offense, he/she often turns to a parent for help and advice. Unlike adults, children can’t hire an attorney and typically have no money for legal defense. When children are in trouble, they often confide in a parent for guidance and support. 

The Parent-Child Privilege Act

The Parent-Child Privilege Act of 2003 amends Federal Rules of Evidence. It states that a parent shall not be compelled to testify against his/her child, and a child shall not be compelled to testify against his/her parent in a civil or criminal proceeding. If either the parent or the child waives the privilege, they may be called to testify. The same rules apply to confidential information between a parent and a child. The Parent-Child Privilege Act allows exceptions in cases of child custody, child abuse or neglect, and termination of parental rights. When the child is a minor, the court usually appoints a guardian, attorney, or other legal representatives to represent the child’s interests.

Currently, there are only a handful of states that recognize some form of parent-child privilege. Those states include Connecticut, Idaho, Nevada, New York, North Carolina, Massachusetts, Minnesota, and Washington. In 1978, the New York Courts were the first to recognize the privilege. New York’s case law created the right for a parent to refuse to reveal confidential information, stating that familial privacy played an important role in open and trustworthy communications between children and parents.

In Minnesota, parent-child privilege is part of the Minnesota Statutes for witness testimony. Statutes clearly state that “a parent or a parent’s minor child may not be examined as to any communication made in confidence by the minor to the minor’s parent or by parent to child.” If a crime is committed by a minor child, Minneapolis criminal lawyers may provide legal defense for the child in a criminal court proceeding.

Can Police Question a Minor Child Without a Parent?

Law enforcement officials are free to approach and question any age child who may be the victim of a crime or a witness to a crime. Police officers are permitted to question a child without a parent present, and they are not required to obtain parental permission prior to interviews. However, if a parent is present when the police officer approaches the child or the officer asks parents for permission first, the parent can refuse to allow the child to be questioned or interviewed.

Children can also refuse to be questioned or interviewed by city police officers and school police officers without a parent present. If the child asks for a parent, teacher, or other adults to take part or supervise police questions, the police officer should allow that, prior to asking any questions or conducting an interview.

If a child witnesses a crime, a parent may be hesitant or refuse to allow the child to talk to police officers. There may be concerns about creating emotional trauma, physical retaliation, and fear for the child, especially if the crime involved violence. Many parents will not allow their children to be involved in a police investigation for a violent crime, especially without the legal advice or presence of Minneapolis criminal lawyers who understand the laws.

If the police need to question a child about suspected or alleged physical or sexual abuse, or if the child witnessed a traumatic event, interviews are often referred to professional psychologists or psychiatrists who have experience questioning minor children on such matters. Many communities have special facilities, “children’s’ safe houses,” with toys that create a comfortable, friendly atmosphere for children and their parents.

Many states have specific laws that address trials involving child victims and witnesses. Some laws allow minor children to testify in court with a parent or supporting adult present, while other laws allow a child’s testimony by video deposition or closed-circuit television with the court’s approval. The United States Supreme Court upholds state laws that allow children to testify by closed-circuit television, because it does not violate the defendant’s right to confront the witnesses against him.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

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