State v. Maxon
| Decision Date | 02 June 1988 |
| Docket Number | No. 54407-7,54407-7 |
| Citation | 110 Wn.2d 564,756 P.2d 1297 |
| Parties | STATE of Washington, Respondent, v. Eric Yale MAXON, Defendant, and David Y. Maxon and Irene Maxon, Appellants. |
| Court | Washington Supreme Court |
Michael E. De Grasse, Walla Walla, for appellants.
Donald W. Schacht, Walla Walla County Prosecutor, James L. Nagle, Deputy, Walla Walla, for respondent.
At issue in this case is whether this court should judicially adopt a parent-child privilege for confidential communications.
The appellants, David and Irene Maxon, are the parents of the adult defendant, Eric Maxon. Eric is charged with first degree murder in Walla Walla County. On May 18 and May 19, 1987, the defendant made statements about the case to his parents. They were made at the parents' home and also may have been made to the defendant's father at the police station. The trial court found that the statements were intended to be confidential. On May 21, the prosecuting attorney took the parents' depositions. The parents refused to answer questions concerning what the defendant had said to them. They claimed that his statements were privileged based on constitutional, public policy and other grounds.
The trial court found the parents' refusal to answer the questions was without substantial justification and granted the State's motion for an order compelling answers to questions on deposition. The parents moved this court for direct discretionary review of the trial court's order. Finding no probable error, the motion was denied on June 24, 1987.
After continued refusal by the parents to answer deposition questions, the trial court held the parents in civil contempt and ordered their confinement in jail until they obeyed the order. The trial court denied the parents' motion to vacate the confinement order but deferred their arrest to enable them to seek a stay from this court. The trial court's order was stayed by this court pending further order. Finding the dispute now ripe for review by appeal, this court decided to retain the case for decision.
The defendant's trial was scheduled to begin on January 19, 1988. On January 13, 1988, following an en banc hearing before the full court, we issued our order vacating the stay of the superior court's confinement order on the ground that there is no parent-child privilege for confidential communications in this state. 1 We here explain our decision in that order.
A single issue is presented.
Should this court recognize a parent-child testimonial privilege for confidential communications based on the constitutional right to privacy, the common law or public policy grounds?
CONCLUSION. The federal and state constitutions afford no basis for a parent-child privilege, and neither does the weight of common law. As we perceive it, public policy also disfavors creation of such a privilege by judicial fiat.
" '[T]he twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.' " 2 This aim would be defeated if judgments were to be based on a partial or speculative presentation of the facts. 3 Indeed, as the United States Supreme Court has stated,
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.
United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Thus has developed the ancient proposition of law " 'that "the public ... has a right to every man's evidence," except for those persons protected by a constitutional, common-law, or statutory privilege ...' ". 4 Such privileges are exceptions to the general principle that the government is entitled to all relevant evidence in criminal cases. 5 Privileges are recognized when certain classes of relationships, or certain classes of communications within those relationships, are deemed to be so important to society that they must be protected, even at the expense of the fact-finding process in criminal investigations and prosecutions. 6 Under Washington law, communications made between husband and wife, priest and penitent, lawyer and client and doctor and patient are privileged and need not be disclosed in most judicial proceedings. 7
The parents in this case seek to have such protection extended to yet another relationship--that of parent and child. While this issue is one of first impression in this state, it has received considerable attention from courts and legislatures across the country over the past decade. The majority of state courts that have considered the issue have declined to recognize a parent-child privilege. 8 Likewise, most federal courts which have considered the issue have refused to recognize a parent-child privilege. 9
Thus far only one federal court, a trial court, has recognized a parent-child privilege. 10 Similarly, only New York has judicially adopted such a privilege. 11 The legislatures of three states have enacted statutes granting limited parent-child privileges. 12 There appears, however, to be considerable support for such a privilege among legal commentators. 13
In general, a privilege may be based on constitutional law, a statute, or the common law. Most privileges in this jurisdiction are statutory. 14 However, this court has "neither asserted that the power to establish a privilege rests solely with the Legislature nor denied the authority of the court to create a privilege." 15
Accordingly, we retain the authority to establish a parent-child privilege if one is clearly warranted. However, in examining the arguments set forth in support of such a privilege, we must bear in mind that "[the] exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." 16
The parents initially assert that Washington State Constitution article 1, section 7 and article 1, section 30 create a right of privacy that prevents compelled disclosure of confidential communications between parents and children in a criminal investigation. They also claim that a right of privacy which encompasses a parent-child privilege is a "well-established component of federal constitutional theory".
While compulsory disclosure of parent-child communications may invade a family's privacy to some degree, such an invasion does not automatically mean that such communications must be privileged. If an invasion of privacy signalled the right to a privileged communication, there would be little testimony offered in our courts of law. As explained by Professor Wigmore,
When the course of justice requires the investigation of the truth, no man has any knowledge that is rightly private. All that society can fairly be expected to concede is that it will not exact this knowledge when necessity does not demand it, or when the benefit gained by exacting it would in general be less valuable than the disadvantage caused; and the various privileges are merely attempts to define the situations in which, by experience, the exaction would be unnecessary or disadvantageous. The duty runs on throughout all, and does not abate; it is merely sometimes not insisted upon.
(Footnote omitted.) 8 J. Wigmore, Evidence § 2192, at 72 (1961). It is thus clear that testimony is the rule and privilege is the exception.
Contrary to the parents' assertions, our examination of constitutional theory does not lead us to the conclusion that a parent-child privilege is one such exception under federal constitutional law. It is true that a series of Supreme Court cases has established a familial right to privacy. 17 The familial right to privacy thus created extends to fundamental personal rights, and does not appear to us to support a parent-child privilege. 18 Indeed, no federal appellate court has concluded that the United States Supreme Court's recognition of the importance of the parent-child relationship warrants a constitutionally based parent-child testimonial privilege. 19 One federal district court, however, has so held. 20 The prevailing view in the federal courts, and one with which we concur, is that "generalized claims regarding the well-recognized sanctity of family life must give way to the overriding needs of the truth-seeking process." 21
The parents are no more successful in finding cases that support their claim of a parent-child privilege rooted in our state constitution. While we have recognized that the right of privacy guaranteed by Const. art. 1, § 7 includes the right to be left alone, we have also recognized that such a right is not absolute. 22 While our system of law accords deference to the family, societal interests at times must transcend family interests. 23 Washington law clearly holds that there is a general duty to give what testimony one is capable of giving. 24 Such a duty has traditionally been extended to family members other than spouses. 25 We find no case law that compels a variation of that duty under the Washington Constitution. Society's interest in obtaining all facts relevant to a criminal investigation outweighs a privilege that is only vaguely rooted in constitutional theory. 26 There is no constitutional basis for a parent-child testimonial privilege. As one local commentator has explained,
The Constitution does not mandate recognition of a parent-child privilege. The right of privacy line of cases gives no indication that the interest in confidential communications between parent and child qualifies as a fundamental right for the purpose of substantive due process analysis. Any infringement of this interest caused by nonrecognition of a parent-child privilege is indirect and incidental. At any rate, the fundamental state interest in the integrity of the fact-finding process is sufficiently compelling to override the interest in the privacy of parent-child communications.
Comment, Parent-Child Privilege:...
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