“In the United States, three states (Idaho, Massachusetts and Minnesota) have adopted some variant of the parent-child privilege by statute, and one state, New York, has judicially recognized the privilege”
The parent-child privilege is not a novel or radical concept.
Both ancient Jewish Law and Roman Law entirely barred family members from testifying against one another, the basis of which was the desire to promote solidarity and trust within the family (Evidence, Third Edition, George Fisher).
The Napoleonic Code also prevented the disclosure of confidences between family members. The civil law countries of Western Europe, including France, Sweden, and the former West Germany also recognize a privilege covering compelled testimony from family members (Evidence, Third Edition, George Fisher).
In the United States, three states (Idaho, Massachusetts and Minnesota) have adopted some variant of the parent-child privilege by statute, and one state, New York, has judicially recognized the privilege.
Most of the cases discussing this kind of privilege have done so in the context of whether a child should be compelled to testify against the parent (Evidence, Third Edition, George Fisher).
The reason for the decline in the recognition of the parent-child privilege in the United States was explained in the case of the Three Juveniles v. Commonwealth, 390 Mass. 357 (1983), reasoning that “[b]ecause a parent does not need the advice of the minor child in the same sense that a child may need the advice of the parent, the case for a testimonial privilege [of this kind]… seems weaker…” (cited in Evidence, Third Edition, George Fisher).
Dean Wigmore’s four-factor formula requires satisfaction of all four factors to establish a privilege:
the communication must originate in confidence that it will not be disclosed;
the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
the relation must be one which in the opinion of the community ought to be sedulously fostered; and
the injury that the relation would incur by the disclosure of the communications must be greater than the benefit… gained for the correct disposal of the litigation (Evidence, Third Edition, George Fisher citing in re Grand Jury Proceedings, 520 U.S. 1253 [1997]).
At least two of Wigmore’s test requirements were not met.
First, confidentiality is not essential to a successful parent-child relationship. [I]t is not clear whether children will be more likely to discuss private matters with their parents if a parent-child privilege were recognized than if one were not (Evidence, Third Edition, George Fisher citing 520 U.S. 1253 [1997]).
Second, any injury to the parent-child relationship resulting from the non-recognition of such a privilege would be relatively insignificant.
This is in contrast to the impairment of the truth-seeking function of the judicial system and the increased likelihood of injustice resulting from the concealment of relevant information (Evidence, Third Edition, George Fisher citing 520 U.S. 1253 [1997]).
In the Philippines, the parent-child privilege is subsumed under parental and filial privilege in Rule 130, Section 25. Under the said Rule, “[N]o person shall be compelled to testify against his or her parents, other direct ascendants, children or direct descendants…”
However, an individual may be compelled to testify when the “testimony is indispensable in a crime [committed] against that person or [committed] by one parent against the other”. Regardless of whether the person is a victim or not, the parental and filial privilege will not apply if the witness freely and voluntarily testifies.
The reason for the rule is to preserve “family cohesion” and the lack of this provision under former laws is believed as doing violence to the most sacred sentiments between members of the same family (Evidence, Francisco).
Disallowing a compelled testimony against a parent, descendant, or ascendant prevents erosion of family relations.
In one case, an 8-year-old boy testified that he is a half-brother of the victim and son of the accused with the latter’s second common-law wife.
According to the boy, while sleeping in one room with his father (accused), the victim, and his two other younger brothers, he was awakened by the victim’s loud cries (People v. Invencion, G.R. No. 131636, March 5, 2003).
The witness also testified that he saw his father on top of his half-sister, performing a pumping motion.
After about two minutes, his father put back on his shorts. He further declared that his father was very strict, cruel, and a drunkard who angrily prohibits the victim from entertaining any of her suitors (G.R. No. 131636, March 5, 2003).
Filial privilege “refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed…, Elven [the boy] was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against him… of his own accord and only ‘to tell the truth’” (G.R. No. 131636, March 5, 2003).
This privilege “is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure [Evidence] chose to extend the prohibition to all kinds of actions, whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants” (Lee v. Court of Appeals, et al., G.R. No. 177861, July 13, 2010).
In another case, Tui Chuan (Tui) was being subpoenaed to testify that Emma Lee is not the daughter of Keh Shiok Cheng (Keh). The case for the correction of entry of the certificate of birth was filed by the children of Spouses Lee Tek Sheng (Lee) and Keh to establish that Emma Lee is not the daughter of their mother (G.R. No. 177861, July 13, 2010).
However, Tui refused and invoked filial privilege by claiming that she is the stepmother of Emma Lee.
The privilege cannot apply to them because the rule applies only to “direct” ascendants and descendants, a family tie connected by a common ancestry.
A stepdaughter has no common ancestry by her stepmother; hence, Tiu can be compelled to testify against Emma Lee (G.R. No. 177861, July 13, 2010).