II

105TH CONGRESS

2D SESSION S. 1721

To provide for the Attorney General of the United States to develop guidelines

for Federal prosecutors to protect familial privacy and communications

between parents and their children in matters that do not involve allegations of violent or drug trafficking conduct and the Judicial Conference

of the United States to make recommendations regarding the advisability

of amending the Federal Rules of Evidence for such purpose.

IN THE SENATE OF THE UNITED STATES

MARCH 6, 1998

Mr. LEAHY introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To provide for the Attorney General of the United States

to develop guidelines for Federal prosecutors to protect

familial privacy and communications between parents

and their children in matters that do not involve allegations of violent or drug trafficking conduct and the Judicial Conference of the United States to make recommendations regarding the advisability of amending the

Federal Rules of Evidence for such purpose.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. CONFIDENTIALITY OF PARENT CHILD COMMU2 NICATIONS IN JUDICIAL PROCEEDINGS.

3 (a) STUDY AND DEVELOPMENT OF PROSECUTORIAL

4 GUIDELINES.—The Attorney General of the United States

5 shall—

6 (1) study and evaluate the manner in which the

7 States have taken measures to protect the confiden8 tiality of communications between children and par9 ents and, in particular, whether such measures have

10 been taken in matters that do not involve allegations

11 of violent or drug trafficking conduct;

12 (2) develop guidelines for Federal prosecutors

13 that will provide the maximum protection possible

14 for the confidentiality of communications between

15 children and parents in matters that do not involve

16 allegations of violent or drug trafficking conduct,

17 within any applicable constitutional limits, and with18 out compromising public safety or the integrity of

19 the judicial system, taking into account—

20 (A) the danger that the free communica21 tion between a child and his or her parent will

22 be inhibited and familial privacy and relation23 ships will be damaged if there is no assurance

24 that such communications will be kept confiden25 tial;
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1 (B) whether an absolute or qualified testi2 monial privilege for communications between a

3 child and his or her parents in matters that do

4 not involve allegations of violent or drug traf5 ficking conduct is appropriate to provide the

6 maximum guarantee of familial privacy and

7 confidentiality without compromising public

8 safety or the integrity of the judicial system;

9 and

10 (C) the appropriate limitations on a testi11 monial privilege for such communications be12 tween a child and his or her parents, includ13 ing—

14 (i) whether the privilege should apply

15 in criminal and civil proceedings;

16 (ii) whether the privilege should ex17 tend to all children, regardless of age,

18 unemancipated or emancipated, or be more

19 limited;

20 (iii) the parameters of the familial re21 lationship subject to the privilege, includ22 ing whether the privilege should extend to

23 stepparents or grandparents, adopted chil24 dren, or siblings; and
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1 (iv) whether disclosure should be al2 lowed absent a particularized showing of a

3 compelling need for such disclosure, and

4 adequate procedural safeguards are in

5 place to prevent unnecessary or damaging

6 disclosures; and

7 (3) prepare and disseminate to Federal prosecu8 tors the findings made and guidelines developed as

9 a result of the study and evaluation.

10 (b) REPORT AND RECOMMENDATIONS.—Not later

11 than 1 year after the date of enactment of this Act, the

12 Attorney General of the United States shall submit a re13 port to Congress on—

14 (1) the findings of the study and the guidelines

15 required under subsection (a); and

16 (2) recommendations based on the findings on

17 the need for and appropriateness of further action

18 by the Federal Government.

19 (c) REVIEW OF FEDERAL RULES OF EVIDENCE.—

20 Not later than 180 days after the date of enactment of

21 this Act, the Judicial Conference of the United States

22 shall complete a review and submit a report to Congress

23 on—

24 (1) whether the Federal Rules of Evidence

25 should be amended to guarantee that the confiden-
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1 tiality of communications by a child to his or her

2 parent in matters that do not involve allegations of

3 violent or drug trafficking conduct will be adequately

4 protected in Federal court proceedings; and

5 (2) if the rules should be so amended, a pro6 posal for amendments to the rules that provides the

7 maximum protection possible for the confidentiality

8 of such communications, within any applicable con9 stitutional limits and without compromising public

10 safety or the integrity of the judicial system.

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