In Re: Grand Jury ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
1-9-1997
In Re: Grand Jury
Precedential or Non-Precedential:
Docket 95-7354,96-7529,96-7530
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
----------
No. 95-7354
-----------
IN RE: GRAND JURY
-----------
On Appeal from the District Court
of the Virgin Islands
(St. Croix)
(D.C. Civil No. 95-00009)
----------
Argued Tuesday, April 16, 1996
at St. Thomas, Virgin Islands
BEFORE: MANSMANN, SAROKIN*
and GARTH, Circuit Judges
Reargued Monday, October 7, 1996
at Philadelphia, Pennsylvania
BEFORE: MANSMANN, GREENBERG
and GARTH, Circuit Judges
Gordon C. Rhea (Argued)
Alkon, Rhea & Hart
2115 Queen Street
Christiansted, St. Croix
USVI, 00820
Attorneys for Appellant
in Appeal No. 95-7354
James A. Hurd, Jr.
Azekah E. Jennings
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820
*Judge Sarokin retired from office prior to the filing of our opinion.
1
David S. Kris (Argued)
United States Department of Justice
Criminal Division
P.O. Box 899
Ben Franklin Station
Washington, D.C. 20044-0899
Attorneys for Appellee
in Appeal No. 95-7354
----------
Nos. 96-7529/7530
----------
IMPOUNDED
----------
On Appeal from the United States District Court
for the District of the Delaware
(D.C. Civil No. 96-51)
----------
Argued Monday, October 7, 1996
at Philadelphia, Pennsylvania
BEFORE: MANSMANN, GREENBERG
and GARTH, Circuit Judges
Charles M. Oberly, III
Kathleen M. Jennings
Oberly, Jennings & Drexler
800 Delaware Avenue
P.O. Box 2054
Wilmington, Delaware 19899
Bartholomew J. Dalton (Argued)
Brandt & Dalton
3 Mill Road
P.O. Box 2307
Wilmington, Delaware 19899
Attorneys for Appellant
John Doe 1 in Appeal No. 96-7529
2
George H. Seitz, III (Argued)
Pricket, Jones, Elliott, Kristol
& Schnee
1310 King Street
P.O.Box 1328
Wilmington, Delaware 19899
Attorneys for Appellant
John Doe 2, as Parent and
Guardian of the Minor
Child,
and the Minor Child
in Appeal No. 96-7529
Gregory M. Sleet
United States Attorney
Colm F. Connolly (Argued)
Assistant U.S. Attorney
Chemical Bank Plaza
1201 Market Street, Suite 1100
P.O. Box 2046
Wilmington, Delaware 19899-2046
Attorneys for Appellee
in Appeal Nos. 96-7529/7530
----------
(Opinion filed January 9, 1997)
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OPINION OF THE COURT
----------
GARTH, Circuit Judge:
Three appeals presenting the same critical issue are
before us. One appeal originated in the District Court of the
Virgin Islands at docket number 95-7354. The other two appeals
pertaining to the same Delaware defendant originated in the
3
District Court of Delaware at docket numbers 96-7529 and 96-
7530.1
We scheduled oral argument in all three appeals on the
same day inasmuch as they raised the same question - should this
court recognize a parent-child privilege? The Delaware appeals
also challenge the adequacy of a Schofield affidavit and charge
that the in camera ex parte proceeding permitted by the district
court constituted a deprivation of due process. We answer the
questions presented by holding that a parent-child privilege
should not be recognized, and we affirm the district court's
rulings which rejected the appellants' objections to the
Schofield affidavit and in camera ex parte proceeding.
I.
The facts and procedure of the Virgin Islands case
giving rise to one appeal, and of the Delaware case giving rise
to two appeals, will be stated separately.2
1. Throughout this opinion, where separate identification of the
appeals is appropriate, we will refer to the appeal which came
from the District Court of the Virgin Islands as the "Virgin
Islands appeal" and the appeals from the District of Delaware as
the "Delaware appeals".
2. Due to the nature of the proceedings, the district courts in
both matters impounded the entire record in each case to protect
the privacy interests of the parties. Consequently, we do not
identify by name either the father or the son who is the target
of the grand jury investigation in the Virgin Islands case; nor
the daughter or the father who is the target of the grand jury
investigation in the Delaware case.
4
Docket Number 95-7354: In the Virgin Islands case, the
grand jury sitting in St. Croix subpoenaed the father of the
target of the grand jury investigation as a witness.3 The target
of the grand jury proceeding was the son of the subpoenaed
witness. The son became the target of a government investigation
as a result of "certain transactions that [he] was allegedly
involved in." Tr. at 11. At the time of the alleged
transactions, the son was eighteen years old.
The grand jury subpoenaed the target's father to
testify on April 18, 1995. The father, a former FBI agent, lived
with his wife and son in St. Croix. On April 17, 1995, based on
his belief that the grand jury intended to question him about
conversations that he had had with his son, the father moved to
quash the subpoena, asserting that those conversations were
privileged from disclosure under Fed. R. Evid. 501.
The father testified, at a hearing before the district
court, that he and his son "ha[d] an excellent relationship, very
close, very loving relationship." Tr. at 4. He further
testified that if he were coerced into testifying against his
son, "[their] relationship would dramatically change and the
closeness that [they] have would end . . . ." Id. at 5. The
3. The term of the grand jury in the Virgin Islands case was to
have ended on September 17, 1996. However, by Order of the
District Court of the Virgin Islands entered on September 3,
1996, the term was extended until March 17, 1997.
5
father further explained that the subpoena would impact
negatively upon his relationship with his son:
I will be living under a cloud in which if my son comes to me or
talks to me, I've got to be very careful what he says,
what I allow him to say. I would have to stop him and
say, "you can't talk to me about that. You've got to
talk to your attorney." It's no way for anybody to
live in this country.
Id. at 6.
On June 19, 1995, the district court entered its order
denying the father's motion to quash. On the same day, the
district court granted the targeted son's motion to intervene and
then stayed its order which denied the quashing of the father's
subpoena pending any appeal. The court's memorandum opinion and
order, although clearly sympathetic with the plight of the
subpoenaed father, "regretfully decline[d] to recognize [a
parent-child] privilege" because the Third Circuit had yet to
address the issue and "every United States Court of Appeals that
has confronted this question has declined to recognize the
parent-child privilege." In re Grand Jury Proceeding, Misc. No.
95-0009, at 14 (D.V.I. June 19, 1995). Appeal of the June 19,
1995 order was promptly taken by the targeted son on June 22,
1995.4
4. The original appeal in the Virgin Islands case was heard in
St. Thomas by a panel of this court of which Judge Sarokin was a
member. Prior to the filing of an opinion, Judge Sarokin retired
from office and Judge Greenberg replaced him on the panel. Panel
rehearing was ordered.
6
Docket Numbers 96-7529 & 96-7530: In the Delaware
case, a sixteen year old minor daughter was subpoenaed to testify
before the grand jury, as part of an investigation into her
father's participation in an alleged interstate kidnapping of a
woman who had disappeared. The daughter was scheduled to
testify on September 10, 1996. However, on September 9, 1996, a
motion to quash subpoena was made by counsel for the daughter and
her mother, as well as by separate counsel for the father.5
The motion sought to bar the testimony of the daughter
claiming a parent-child privilege which would cover testimony and
confidential communications. "[T]he privilege [was] claimed for
confidential communications as well as for protection against
being compelled to testify in a criminal proceeding". Joint
Motion to Quash Subpoena at ¶ 5.
The district court held a hearing during the morning of
September 10, 1996; ordered further briefing due that afternoon6;
and issued a ruling in the late afternoon denying the motion to
5. It appears that although the mother and father of the minor
witness have taken similar positions in this litigation, albeit
by different counsel, at the time of these proceedings, they were
separated.
6. The additional briefing was on the issue of whether the
daughter's testimony would be material and non-duplicative.
During the hearing, the district court placed the burden on the
government to make a substantial showing that this threshold was
met. The government filed a Schofield affidavit, see infra, and
volunteered to furnish further particulars at an in camera ex
parte hearing. The parents and daughter opposed the in camera ex
parte proceeding, arguing that if they were foreclosed from
listening to the government's proffer, there would be no basis
upon which they could rebut the evidence presented.
7
quash and ordering the minor daughter to testify before the grand
jury that evening.
In the order, the district court reasoned that, because
there is "no recognized familial privilege", the appropriate
process for determining whether to grant the motion to quash was
"to weigh the competing interests of the parties in order to
determine whether the anticipated testimony of the minor child is
material and nonduplicative, thus tipping the scales toward
requiring the testimony". In re Grand Jury, 96-cv-51, at 1 (D.
Del. September 10, 1996). The district court concluded that,
based on the government's in camera ex parte proffer, "the
government's interests in compelling the testimony outweigh the
privacy interests asserted by the moving parties" and denied the
motion to quash on those grounds. See id. at 2.
Pursuant to the court order, the daughter appeared at
court (in an ante-room to the grand jury courtroom) in the
evening of September 10, 1995. She refused to testify and was
found in contempt. The district court then stayed the imposition
of sanctions during the pendency of these appeals. Appeal of the
September 10, 1996 order was promptly made in joint motions by
mother and daughter, and father on September 13, 1996.7
7. The appeals in the Delaware case were expedited by this court
so that the common issue of parent-child privilege could be heard
and resolved in the Delaware and Virgin Island cases at the same
time.
8
The district courts had jurisdiction over both the
Virgin Islands case and Delaware case under 18 U.S.C. § 3231. We
have appellate jurisdiction over the appeals taken by the
intervenors pursuant to 28 U.S.C. § 1291. See Perlman v. United
States, 247 U.S. 7, 12-13 (1918); In re Grand Jury Proceedings
(C. Schmidt & Sons, Inc.), 619 F.2d 1022, 1024 (3d Cir. 1980).
In addition, in the Delaware case, the daughter appealed on her
own behalf after being cited for contempt, providing separate
grounds for jurisdiction. See Cobbledick v. United States, 309
U.S. 323 (1940); Alexander v. United States, 201 U.S. 117 (1906);
In re Grand Jury Proceedings, 619 F.2d at 1024.
Our review as to all issues, is plenary.
II.
Because we find little merit in the arguments advanced
in the Delaware case pertaining to the Schofield affidavit and
the in camera proceeding before the district court, we will
dispose of these two issues first and without substantial
discussion. We then will turn to the more pressing issue of
whether we should be the first federal Court of Appeals to
recognize a parent-child privilege.
We have held that, when a subpoena for purposes of a
grand jury proceeding is challenged, the government is "required
to make some preliminary showing by affidavit that each item is
at least relevant to an investigation being conducted by the
9
grand jury and properly within its jurisdiction, and is not
sought primarily for another purpose." In re Grand Jury
Proceedings, 486 F.2d 85, 93 (3d Cir. 1973) (Schofield I); see
also In re Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir.)
(Schofield II) (identifying this burden of proof as a "three-
pronged showing requirement"), cert. denied sub nom. Schofield v.
United States, 421 U.S. 1015 (1975). This requirement stems from
the Schofield cases (I and II) where the targeted defendant had
refused to furnish handwriting exemplars and had refused to allow
her fingerprints and photograph to be taken. We have commonly
referred to such an affidavit as a Schofield affidavit.8
Appellants in the Delaware case argue that the
government's Schofield affidavit9 was insufficient since it was
"simply a mere recitation of the requirements, rather than a
substantive document and was not sufficient to enable the
District Court to properly balance the interests of the parties."
Brief of Appellant Doe #1 at 21. They argue further that "The
Government's affidavit does not meet. . . [the Schofield II]
test. . . It is written in conclusory terms and makes no effort
8. In Schofield II, we held that the affidavit complying with
this three-pronged requirement sufficed to meet the government's
burden and hence we upheld the government's subpoena. See
Schofield II, 507 F.2d at 963.
9. The affidavit stated that the daughter's testimony would be
"essential and necessary" and "relevant" to the grand jury
investigation; that the testimony was "properly within the Grand
Jury's jurisdiction" and was "not sought primarily for any other
purpose". Government's Response to Joint Motion to Quash
Subpoena at ¶ 4.
10
to state any facts at all. . . More should be required where the
Government seeks to place a child in a Grand Jury proceeding..."
Brief of Appellant Doe #2 at 25.
Our review of the affidavit presented by the government
in the present matter satisfies us that it contained the
requisite elements as mandated in Schofield II. It "provide[s] a
minimum disclosure of the grand jury's purpose" by demonstrating
that the daughter's testimony would be "at least relevant to an
investigation being conducted by the grand jury and properly
within its jurisdiction, and is not sought primarily for another
purpose". Schofield II, 507 F.2d at 965 (citing Schofield I,
486 F.2d at 93). These elements satisfy the minimal disclosure
requirements of Schofield II.
The district court could, of course, in its discretion,
require additional information. See Schofield II, 507 F.2d at
965. Here the district court exercised its discretion by not
requiring anything additional in the affidavit, but decided
instead to hold a hearing on the government's proffer and to do
so in camera and ex parte.
We hold that the government met its burden of proof
with regard to the adequacy of the Schofield affidavit, and since
the appellants have not demonstrated that the affidavit was
insufficient or that there was an abuse of the grand jury
process, we are persuaded that the district court did not err in
finding the Schofield affidavit proper. See Schofield I, 486
11
F.2d at 92 ("the party objecting to the enforcement has the
burden of making some showing of irregularity"); Schofield II,
507 F.2d at 965 ("the burden is generally on the witness to show
abuse of the grand jury process").
Appellants next argue that the district court erred in
conducting the in camera hearing ex parte. They contend that
they were prejudiced by their inability to respond to the
government's proffer and that therefore their due process rights
were violated.10 We cannot agree.
District courts have considerable discretion in
determining whether additional proceedings - beyond the Schofield
affidavit - are warranted, including in camera hearings. See
Schofield I, 486 F.2d at 93; see generally United States v.
Zolin, 491 U.S. 554, 572 (1988).
The purpose of the in camera hearing was to aid the
district court in balancing the government's need for the
daughter's testimony against the privacy concerns of the daughter
and her family. The district court placed a threshold burden on
the government to demonstrate the materiality and non-duplicative
nature of the daughter's testimony, in order that it could
determine whether the testimony was necessary for the grand jury
proceedings, or whether instead, it should grant appellants'
motion to quash.
10. Appellants cite 18 U.S.C. § 3509(a)(2) (Supp. 1996) as
support for their argument; however, we note that this provision,
concerning child abuse, has no relevance to the present matter.
12
The government's proffer was presented in camera and
heard ex parte in order to protect the confidentiality of the
grand jury proceeding. Ex parte in camera hearings have been
held proper in order to preserve the ongoing interest in grand
jury secrecy. See generally In re Marc Rich & Co., 707 F.2d 663,
670 (2d Cir.), cert. denied, 463 U.S. 1215 (1983); In re Grand
Jury Matter (Catania), 682 F.2d 61, 66 (3d Cir. 1982). The
secrecy of the grand jury proceedings in the present matter might
have been compromised by divulging the specific questions that
the government intended to ask during the daughter's testimony.
Judicial supervision and interference with grand jury proceedings
should always be kept to a minimum. See, e.g., United States v.
Williams, 504 U.S. 36, 50 (1992).
After reviewing the government's in camera proffer, the
district court judge denied the motion to quash, having
determined that the daughter's testimony would be material and
non-duplicative, and that "the government's interests in
compelling the testimony outweigh the privacy interests asserted
by the moving party". In re Grand Jury, 96-cv-51, at ¶ 3 (D.
Del. September 10, 1996). We hold that the district court did
not abuse its discretion in hearing the government's proffer in
camera and ex parte.11
11. In her dissenting and concurring opinion, Judge Mansmann
registers disturbance because of the Schofield procedure employed
by the district court. See Dissenting Opinion at 20-21.
We are bound by Schofield. See I.O.P. § 9.1. The
district court judge adhered to our Schofield instruction and
properly exercised her discretion in holding an in camera ex
13
III.
The central question in these appeals is one of first
impression in this court: should we recognize a parent-child
testimonial privilege? Appellants argue that recognition is
necessary in order to advance important public policy interests
such as the protection of strong and trusting parent-child
relationships; the preservation of the family; safeguarding of
privacy interests and protection from harmful government
intrusion; and the promotion of healthy psychological development
of children. See Brief of Appellant in Virgin Islands case at 8-
9; Brief of Appellant Doe #1 at 9-14; Brief of Appellant Doe #2
at 10-20. These public policy arguments echo those advanced by
academicians and other legal commentators in the myriad of law
review articles discussing the parent-child testimonial
privilege.12
(..continued)
parte hearing which we have found to be within the Schofield
doctrine. Judge Mansmann's criticism of that procedure is one
that can only be remedied by an en banc court.
12. See, e.g., Yolanda L. Ayala & Thomas C. Martyn, To Tell or
Not to Tell? An Analysis of Testimonial Privileges: The Parent-
Child and Reporter Privileges, 9 St. John's J. Legal Comment. 163
(1993); Daniel R. Coburn, Child-Parent Communications: Spare the
Privilege and Spoil the Child, 74 Dick. L. Rev. 599 (1970); David
A. Schlueter, The Parent-Child Privilege: A Response to Calls
for Adoption, 19 St. Mary's L.J. 35 (1987); Ann M. Stanton,
Child-Parent Privilege for Confidential Communications: An
Examination and Proposal, 16 Fam. L.Q. 1 (1982); Larry M. Bauer,
Note, Recognition of a Parent-Child Testimonial Privilege, 23 St.
Louis U. L.J. 676 (1979); Jeffrey Begens, Comment, Parent-Child
Testimonial Privilege: An Absolute Right or an Absolute
Privilege?, 11 U. Dayton L. Rev. 709 (1986); Betsy Booth,
Comment, Under-Privileged Communications: The Rationale for a
14
Although legal academicians appear to favor adoption of
a parent-child testimonial privilege, no federal Court of Appeals
and no state supreme court has recognized such a privilege. We
too decline to recognize such a privilege for the following
reasons:
(1)The overwhelming majority of all courts--federal or
state--have rejected such a privilege.
(a)Eight federal Courts of Appeals have rejected such a
privilege and none of the remaining Courts of
Appeals have recognized such a privilege.
(b)Every state supreme court that has addressed the issue
has rejected the privilege, and only four states
have protected parent-child communications in some
manner.13
(..continued)
Parent-Child Privilege, 36 Sw. L.J. 1175 (1983); J. Tyson Covey,
Note, Making Form Follow Function: Considerations in Creating
and Applying a Statutory Parent-Child Privilege, 1990 U. Ill. L.
Rev. 879; Gregory W. Franklin, Note, The Judicial Development of
the Parent-Child Testimonial Privilege: Too Big For Its
Britches?, 26 Wm. & Mary L. Rev. 145 (1984); Patrick Koepp,
Comment, A Parent-Child Testimonial Privilege: Its Present
Existence, Whether It Should Exist, and To What Extent, 13 Cap.
U. L. Rev. 555 (1984); Bruce N. Lemons, Comment, From the Mouths
of Babes: Does the Constitutional Right of Privacy Mandate a
Parent-Child Privilege?, 1978 B.Y.U. L. Rev. 1002 (1978);
Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L.
Rev. 771 (1979); Comment, Confidential Communication Between
Parent and Child: A Constitutional Right, 16 San Diego L. Rev.
811 (1979); Note, Questioning the Recognition of a Parent-Child
Testimonial Privilege, 45 Alb. L. Rev. 142 (1980); Note,
Parent-Child Loyalty and Testimonial Privilege, 100 Harv. L. Rev.
910 (1987); Note, Parent-Child Testimonial Privilege: Preserving
and Protecting the Fundamental Right to Family Privacy, 52 U.
Cin. L. Rev. 901 (1983).
13. New York is the only state which has a judicially-recognized
parent-child privilege; however, the privilege has only been
recognized by inferior New York courts.
Idaho and Minnesota are the only states which have
recognized a variant of the parent-child privilege through
statute. See Idaho Code § 9-203(7) (1990 & Supp. 1995); Minn.
Stat. § 595.02(1)(j) (1988 & Supp. 1996). It is important to
note that neither statute is rooted in the common law.
15
(c)No state within the Third Circuit has recognized a
parent-child privilege.
(2)No reasoned analysis of Federal Rule of Evidence 501 or of the
standards established by the Supreme Court or by this
court supports the creation of a privilege.
(3)Creation of such a privilege would have no impact on the
parental relationship and hence would neither benefit
that relationship nor serve any social policy.
(4)Although we have the authority to recognize a new privilege,
we believe the recognition of such a privilege, if one
is to be recognized, should be left to Congress.
A.FEDERAL AND STATE COURTS HAVE DECLINED TO RECOGNIZE A PARENT-
CHILD PRIVILEGE.
1.Eight Federal Courts of Appeals Have Explicitly Rejected
the Privilege and None of the Remaining Courts of
Appeals Have Recognized the Privilege.
The appellants rely primarily upon law review articles
rather than case law authority to support the position that a
parent-child testimonial privilege should be recognized. No case
law recognizing such a privilege exists. On the other hand, the
eight federal Courts of Appeals that have addressed the issue
have uniformly declined to recognize a parent-child privilege.
(..continued)
Massachusetts law prevents a minor child from
testifying against a parent in a criminal proceeding. However,
the statute does not go so far as to recognize a parent-child
testimonial privilege. First, the Massachusetts statute does not
create a testimonial privilege; rather it is best described as a
witness-disqualification rule. Second, the testimonial bar is
not of common-law origin but is statutory. Finally, the statute
only bars a minor child, under certain circumstances, from
testifying against a parent, and does not extend to children of
all ages in all circumstances. See Mass. Gen. L. ch. 233, § 20
(1986 & Supp. 1996).
16
See In re Erato, 2 F.3d 11 (2d Cir. 1993); In re Grand Jury
Proceedings (John Doe), 842 F.2d 244 (10th Cir.), cert. denied,
488 U.S. 894 (1988); United States v. Davies, 768 F.2d 893 (7th
Cir.), cert. denied sub nom. Kaprelian v. United States, 474 U.S.
1008 (1985); Port v. Heard, 764 F.2d 423 (5th Cir. 1985); United
States v. Ismail, 756 F.2d 1253 (6th Cir. 1985); In re Grand Jury
Subpoena (Santarelli), 740 F.2d 816 (11th Cir.) (per curiam),
reh'g denied, 749 F.2d 733 (11th Cir. 1984); United States v.
Jones, 683 F.2d 817 (4th Cir. 1982); In re Grand Jury Proceedings
(Starr), 647 F.2d 511 (5th Cir. Unit A May 1981) (per curiam);
United States v. Penn, 647 F.2d 876 (9th Cir.) (en banc), cert.
denied, 449 U.S. 903 (1980). Moreover, the remaining federal
Courts of Appeals that have not explicitly rejected the privilege
have not chosen to recognize the privilege either.
Additional federal case law rejecting the privilege can
be found in district court cases and in related contexts where
the privilege was disapproved. See United States v. Duran, 884
F. Supp. 537, 541 (D.D.C. 1995) ("The general rule in most
federal courts is that there is no parent-child privilege."); In
re Kinoy, 326 F. Supp. 400, 406 (S.D.N.Y. 1970) ("[T]here is no
such thing [as a parent-child privilege]."). Cf. In Re Grand
Jury Subpoena (Matthews), 714 F.2d 223, 224-25 (2d Cir. 1983)
(holding that grand jury witness was not entitled to assert a
"family privilege" to avoid answering questions that might
incriminate his in-laws); United States v. (Under Seal), 714 F.2d
17
347, 349 n.4 (4th Cir.) (refusing to recognize privilege not to
testify against brother and cousin), cert. dismissed sub nom. Doe
v. United States, 464 U.S. 978 (1983); United States ex rel.
Riley v. Franzen, 653 F.2d 1153, 1160 (7th Cir.) (declining to
recognize parent-child privilege under Illinois law), cert.
denied, 454 U.S. 1067 (1981).
18
2.State Courts Have Overwhelmingly Rejected the Privilege.
The overwhelming majority of state courts, like their
federal counterparts, have also declined to recognize a common-
law parent-child privilege. See, e.g., In re Inquest
Proceedings, 676 A.2d 790 (Vt. 1996)14; In re Terry W., 130 Cal.
Rptr. 913 (Cal. Ct. App. 1976); Marshall v. Anderson, 459 So. 2d
384 (Fla. Dist. Ct. App. 1984); People v. Sanders, 457 N.E.2d
1241 (Ill. 1983); Gibbs v. State, 426 N.E.2d 1150 (Ind. Ct. App.
1981); Cissna v. State, 352 N.E.2d 793 (Ind. Ct. App. 1976);
State v. Gilroy, 313 N.W.2d 513 (Iowa 1981); State v. Willoughby,
532 A.2d 1020, 1022 (Me. 1987); State v. Delong, 456 A.2d 877
(Me. 1983); Three Juveniles v. Commonwealth, 455 N.E.2d 1203
(Mass. 1983), cert. denied sub nom. Keefe v. Massachusetts, 465
U.S. 1068 (1984); State v. Amos, 414 N.W.2d 147 (Mich. Ct. App.
1987) (per curiam); Cabello v. State, 471 So. 2d 332 (Miss.
1985), cert. denied, 476 U.S. 1164 (1986); State v. Bruce, 655
S.W.2d 66, 68 (Mo. Ct. App. 1983); State ex rel. Juvenile Dept.
of Lane County v. Gibson, 718 P.2d 759 (Ore. Ct. App. 1986); In
re Gail D., 525 A.2d 337 (N.J. Super. Ct. App. Div. 1987); In re
Frances J., 456 A.2d 1174 (R.I. 1983); De Leon v. State, 684
S.W.2d 778 (Tex. Ct. App. 1984); State v. Maxon, 756 P.2d 1297
(Wash. 1988). Cf. Stewart v. Superior Court, 787 P.2d 126 (Ariz.
1989).15
14. The appellants in In re Inquest Proceedings, 676 A.2d 790
(Vt. 1996) cited the cases of In re Grand Jury Proceedings
(Agosto), 553 F. Supp. 1298 (D. Nev. 1983) and People v.
Fitzgerald, 422 N.Y.S.2d 309 (Westchester County Ct. 1979), in
19
3.Only Two Federal District Court Cases Recognize the
Privilege, and These Cases are Distinguishable and Not
Authoritative.
The parent-child privilege has not been recognized by
any federal or state court with the exception of two federal
(..continued)
support of their argument that a parent-child privilege should be
recognized. The Vermont Supreme Court declined to follow either
case: it declined to follow Agosto for much the same reasons as
we discuss infra in text, and it declined to follow Fitzgerald
which was limited by People v. Harrell, 450 N.Y.S.2d 501 (N.Y.
App. Div. 1982), aff'd, 463 N.Y.S.2d 185 (N.Y. 1983). See infra
note 15.
15. New York's inferior courts are the only state courts which
have judicially recognized a parent-child privilege. See In re
Mark G., 410 N.Y.S.2d 464 (N.Y. App. Div. 1978); In re A & M, 403
N.Y.S.2d 375 (N.Y. App. Div. 1978); In re Ryan, 474 N.Y.S.2d 931
(N.Y. Fam. Ct. 1984); People v. Fitzgerald, 422 N.Y.S.2d 309
(Westchester County Ct. 1979). The privilege so-recognized is
essentially derived from New York's constitution. The New York
Appellate Division explained that the privilege it recognized was
rooted in the constitutional right to privacy:
Notwithstanding the absence of a statutory privilege, we
may, nevertheless, draw from the principles of
privileged communications in determining in what manner
the protection of the Constitution should be extended
to the child-parent communication. . . . We conclude .
. . that communications made by a minor child to his
parents within the context of the family relationship
may, under some circumstances, lie within the 'private
realm of family life which the state cannot enter.'"
In re A & M, 403 N.Y.S.2d at 381 (quoting Prince v. Massachu-
setts, 321 U.S. 158, 166 (1944)) (emphasis added); see also
People v. Harrell, 450 N.Y.S.2d 501, 504 (N.Y. App. Civ. 1982)
(privilege is not rooted in common law, statute, or the 6th
amendment).
New York courts apply the parent-child privilege
sparingly. For example, New York's Court of Appeals declined to
apply the parent-child privilege to a murder confession made by a
28 year old defendant to his mother, due to defendant's age; lack
of confidentiality; subject of conversation; and the fact that
the mother had already testified in front of grand jury
proceeding. See People v. Johnson, 644 N.E.2d 1378, 1378 (N.Y.
1994).
20
district court cases which are readily distinguishable: In re
Grand Jury Proceedings (Agosto), 553 F. Supp. 1298 (D. Nev. 1983)
and In re Grand Jury Proceedings (Greenberg), 11 Fed. R. Serv.
(Callaghan) 579 (D. Conn. 1982).
In Agosto, the thirty-two-year-old son of an alleged
tax evader moved to quash a subpoena ad testificandum requiring
him to testify against his father. See Agosto, 553 F. Supp. at
1299. Although the district court recognized a common-law
privilege, it did so in derogation of the prevailing
jurisprudence of the Ninth Circuit, which, in an en banc
decision, had expressly rejected a parent-child privilege. See
United States v. Penn, 647 F.2d 876 (9th Cir.) (en banc), cert.
denied, 449 U.S. 903 (1980). Agosto therefore conflicts squarely
with its own circuit's en banc precedent. It is not surprising
that in her dissent, Judge Mansmann, although apparently
approving of the reasoning in Agosto and citing to it on pages 11
and 18 n.17, is no more persuaded by Agosto than we are.
In Greenberg, a mother sought relief from a civil
contempt charge when she refused to testify before a federal
grand jury in order to protect her adult daughter, who had been
indicted by a Florida grand jury for importation of marijuana.
See Greenberg, 11 Fed. R. Serv. at 580. The district court
recognized a limited testimonial privilege grounded in the First
Amendment free exercise clause; however, the court declined to
recognize a general common-law parent-child privilege.
21
Observing that the daughter, as an adult, did not
require the same degree of guidance and support as a young child,
the court reasoned that although compelled disclosure of
nonincriminating confidences might damage the relationship
between the mother and her daughter, the harm would be less
severe than if an unemancipated minor were involved. See id. at
586-87. Concluding that this lesser degree of harm did not
outweigh the state's need for the testimony, the district court
held that the facts did not justify the creation of a common-law
parent-child privilege. See id. at 587. Greenberg therefore
does not support the creation of a general testimonial parent-
child privilege; furthermore, its limited holding does not extend
to the present matter since religious principles are not
implicated here.
B.THE STANDARDS PRESCRIBED BY FEDERAL RULE OF EVIDENCE 501 DO NOT
SUPPORT THE CREATION OF A PRIVILEGE.
Federal Rule of Evidence 501 provides that "the privi-
lege of a witness . . . 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." No such
principle, interpretation, reason or experience has been drawn
upon here.
It is true that Congress, in enacting Fed. R. Evid.
501, "manifested an affirmative intention not to freeze the law
of privilege. Its purpose rather was to 'provide the courts with
22
the flexibility to develop rules of privilege on a case-by-case
basis,' and to leave the door open to change." Trammel v. United
States, 445 U.S. 40, 47 (1980) (quoting 102 Cong. Rec. 40,891
(1974) (statement of Rep. William Hungate)). In doing so,
however, we are admonished that privileges are generally
disfavored;16 that "'the public . . . has a right to every man's
evidence'";17 and that privileges are tolerable "only to the very
limited extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for
ascertaining truth."18
In keeping with these principles, the Supreme Court has
rarely expanded common-law testimonial privileges.19 Following
16. See, e.g., In re Dinnan, 661 F.2d 426, 427 (5th Cir. 1981)
("The basis of justice is truth and our system frowns upon
impediments to ascertaining that truth."), cert. denied sub nom.
Dinnan v. Blaubergs, 457 U.S. 1106 (1982).
17. Trammel, 445 U.S. at 50 (quoting United States v. Bryan, 339
U.S. 323, 331 (1950)).
18. Trammel, 445 U.S. at 47 (internal quotation omitted).
19. See, e.g., Trammel, 445 U.S. at 53 (narrowing husband-wife
privilege and holding that witness spouse may testify over the
objections of the other spouse); University of Pa. v. EEOC, 493
U.S. 182, 189 (1990) (declining to recognize a privilege for
academic peer review proceedings); United States v. Arthur Young
& Co., 465 U.S. 805, 817-19 (1984) (rejecting an accountant work-
product privilege); United States v. Gillock, 445 U.S. 360, 367-
68 (1980) (expressly refusing to recognize a privilege for state
legislators in federal court); United States v. Nixon, 418 U.S.
683, 709 (1974) (rejecting a privilege for confidential
communications between the President and the President's high-
level advisors); Couch v. United States, 409 U.S. 322, 335 (1973)
(rejecting an accountant-client testimonial privilege).
23
the Supreme Court's teachings, other federal courts, including
this court, have likewise declined to exercise their power under
Rule 501 expansively. See, e.g., United States v. Schoenheinz,
548 F.2d 1389, 1390 (9th Cir. 1977) (declining to recognize an
employer-stenographer privilege); In re Grand Jury Impaneled on
January 21, 1975, 541 F.2d 373, 382 (3d Cir. 1976) (declining to
recognize a required-reports privilege).
Neither the appellants nor the dissent has identified
any principle of common law, and hence have proved no
interpretation of such a principle. Nor has the dissent or the
appellants discussed any common-law principle in light of reason
and experience. Accordingly, no basis has been demonstrated for
this court to adopt a parent-child privilege.
C.CREATING A PARENT-CHILD PRIVILEGE WOULD BE INCONSISTENT WITH
THE TEACHINGS OF THE SUPREME COURT AND OF THIS COURT.
1.Supreme Court
The Supreme Court's most recent pronouncement in the
law of privileges, Jaffee v. Redmond, 116 S. Ct. 1923 (1996),
which recognized a psychotherapist-patient privilege, supports
the conclusion that a privilege should not, and cannot, be
created here. In Jaffee, the Supreme Court reemphasized that the
predominant common-law principle which guides a federal court's
determination of whether a privilege applies is the maxim that
testimonial privileges are disfavored:
The common-law principles underlying the recognition of
testimonial privileges can be stated simply. "'For
24
more than three centuries it has now been recognized as
a fundamental maxim that the public . . . has a right
to every man's evidence. When we come to examine the
various claims of exemption, we start with the primary
assumption that there is a general duty to give what
testimony one is capable of giving, and that any
exemptions which may exist are distinctly exceptional,
being so many derogations from a positive general
rule.'"
Id. at 1928 (quoting United States v. Bryan, 339 U.S. 323, 331
(1950) (quoting 8 John H. Wigmore, Evidence § 2192, at 64 (3d ed.
1940))). An exception to this general rule is justified only
when recognition of a privilege would promote a "'public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining the truth.'" Id. (quoting
Trammel, 445 U.S. at 50 (quoting Elkins v. United States, 364
U.S. 206, 234 (1960) (Frankfurter, J., dissenting))).
The Jaffee Court emphasized that a court, in determin-
ing whether a particular privilege "'promotes sufficiently
important interests to outweigh the need for probative ev-
idence,'" Id. (quoting Trammel, 445 U.S. at 51), must be guided
by "reason and experience." Specifically, the Jaffee Court in-
structed that a federal court should look to the "experience" of
state courts: "[T]he policy decision of the States bear on the
question [of] whether federal courts should recognize a new
privilege or amend the coverage of an existing one." Id. at
1929-30.
Notably, in recognizing a psychotherapist-patient
privilege, the Supreme Court relied on the fact that all fifty
25
states had enacted some form of a psychotherapist privilege. Id.
at 1929 & n.11 (listing state statutes). The Jaffee Court ex-
plained that "it is appropriate to treat a consistent body of
policy determinations by state legislatures as reflecting both
'reason' and 'experience.'" Id. at 1930.
Here, by contrast, only four states have deemed it
necessary to protect from disclosure, in any manner, confidential
communications between children and their parents. As previously
noted, New York state courts have recognized a limited parent-
child privilege, and Idaho and Minnesota have enacted limited
statutory privileges protecting confidential communications by
minors to their parents. See supra notes 13 & 15. In
Massachusetts, as we have noted, minor children are statutorily
disqualified from testifying against their parents in criminal
proceedings. See id. No state within the Third Circuit has
adopted a parent-child privilege.
The policy determinations of these four states do not
constitute a "consistent body of policy determinations by
state[s]" supporting recognition of a parent-child privilege.
Indeed, if anything, the fact that the overwhelming majority of
states have chosen not to create a parent-child privilege sup-
ports the opposite conclusion: "reason and experience" dictate
that federal courts should refuse to recognize a privilege
rejected by the vast majority of jurisdictions.
26
The Jaffee Court also relied on the fact that the
psychotherapist-patient privilege was among the nine specific
privileges recommended by the Advisory Committee on Rules of
Evidence in 1972. See Jaffee, 116 S. Ct. at 1928-30 & n.7; see
also Proposed Rules of Evidence for the United States Courts and
Magistrates, 56 F.R.D. 183, 230-61 (1973). Additionally, the
Jaffee Court noted: "[O]ur holding [United States v. Gillock,
445 U.S. 360 (1980)] that Rule 501 did not include a state
legislative privilege relied, in part, on the fact that no such
privilege was included in the Advisory Committee's draft [of the
proposed privilege rules]." Jaffee, 116 S. Ct. at 1930.
In the instant cases, in contrast to the psychothera-
pist-patient privilege recognized in Jaffee, the parent-child
privilege, like the state legislative privilege rejected in
Gillock, was not among the enumerated privileges submitted by the
Advisory Committee. Although this fact, in and of itself, is not
dispositive with respect to the question as to whether this court
should create a privilege, it strongly suggests that the Advisory
Committee, like the majority of state legislatures, did not
regard confidential parent-child communications sufficiently
important to warrant "privilege" protection.
A federal court should give due consideration, and
accord proper weight, to the judgment of the Advisory Committee
and of state legislatures on this issue when it evaluates whether
27
it is appropriate to create a new privilege pursuant to Rule 501.
2. Third Circuit
Under the analytic framework set forth in this court's
precedents, creating a parent-child privilege would be ill-
advised. In In re Grand Jury Investigation, 918 F.2d 374 (3d
Cir. 1990) (Becker, J.), we adopted a clergy-communicant
privilege. We did so, however, only after examining the state
and federal precedents addressing the issue of a clergy-
communicant privilege and after determining that these
precedents, on balance, weighed in favor of recognizing such a
privilege. Id. at 379-84. Indeed, we instructed that an
examination of such precedents was mandatory:
Both the history and the language of Rule 501, therefore,
provide us with a mandate to develop evidentiary
privileges in accordance with common law principles.
This mandate, in turn, requires us to examine federal
and state case law and impels us to consult treatises
and commentaries on the law of evidence that elucidate
the development of the common law.
Id. at 379.
Moreover, like the Jaffee Court and perhaps in antici-
pation of Jaffee's instructions, Judge Becker considered the
"reason and experience" of the state legislatures and of the
Advisory Committee. First, Judge Becker, writing for a unanimous
panel, noted that "virtually every state has recognized some form
of a clergy-communicant privilege." Id. at 381 & n.10 (listing
state statutes).
28
In addition, Judge Becker posited that "the proposed
rules prove a useful reference point and offer guidance in
defining the existence and scope of evidentiary privileges in the
federal courts." Id. at 380. Judge Becker further explained:
"[I]n many instances, the proposed rules, [used as]
[s]tandards, remain a convenient and useful starting
point for examining questions of privilege. The
[s]tandards are the culmination of three drafts
prepared by an Advisory Committee consisting of judges,
practicing lawyers and academicians. . . . Finally,
they were adopted by the Supreme Court. . . .
. . . .
. . . [T]he Advisory Committee in drafting the
Standards was for the most part restating the law
currently applied in the federal courts.
Id. at 380-81 (quoting J. Weinstein & M. Berger, Weinstein's
Evidence ¶ 501[03] (1987)). Judge Becker then concluded that
"[t]he inclusion of the clergy-communicant privilege in the
proposed rules, taken together with its uncontroversial nature,
strongly suggests that [that] privilege is, in the words of the
Supreme Court, 'indelibly ensconced' in the American common law."
Id. at 381 (quoting Gillock, 445 U.S. at 368). Judge Becker
also provided a detailed exegesis of the historical development
of the clergy-communicant privilege, stressing that common-law
tradition, as reflected in practice and case law, supported
recognition of such a privilege.
In contrast, the parent-child privilege sought to be
recognized here is of relatively recent vintage, see Ismail, 756
F.2d at 1257-58 ("The parent-child privilege did not exist at
common law"), and is virtually no more than the product of legal
29
academicians. See supra note 12. Unlike, for example, the
attorney-client privilege, which is "the oldest" common-law
privilege, see United States v. Zolin, 491 U.S. 554, 562 (1989);
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the
parent-child privilege lacks historical antecedents.
Furthermore, an analysis of the four Wigmore factors,
which Judge Becker used to buttress this court's disposition in
In re Grand Jury Investigation, does not support the creation of
a privilege. Dean Wigmore's four-factor formula requires
satisfaction of all four factors in order to establish a
privilege:
(1) The communications must originate in a confidence that
they 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 of the communications must be greater than
the benefit thereby gained for the correct disposal of
litigation.
In re Grand Jury Investigation, 918 F.2d at 384 (quoting 8 John
H. Wigmore, Evidence § 2285 (J. McNaughton rev. ed. 1961))
(emphasis in original) (footnote omitted).
At least two of Wigmore's prerequisite conditions for
creation of a federal common-law privilege are not met under the
facts of these cases. We refer to the second and fourth elements
of the Wigmore test.20
20. The most recent case addressing a parent-child privilege
analyzed the privilege under the Wigmore four-factor test, and
30
First, confidentiality--in the form of a testimonial
privilege--is not essential to a successful parent-child
relationship, as required by the second factor. A privilege
should be recognized only where such a privilege would be
indispensable to the survival of the relationship that society
deems should be fostered. For instance, because complete candor
and full disclosure by the client is absolutely necessary in
order for the attorney to function effectively, society recogniz-
es an attorney-client privilege. Without a guarantee of secrecy,
clients would be unwilling to reveal damaging information. As a
corollary, clients would disclose negative information, which an
attorney must know to prove effective representation, only if
they were assured that such disclosures are privileged.
In contrast, it is not clear whether children would be
more likely to discuss private matters with their parents if a
parent-child privilege were recognized than if one were not. It
is not likely that children, or even their parents, would
typically be aware of the existence or non-existence of a
testimonial privilege covering parent-child communications. On
the other hand, professionals such as attorneys, doctors and
members of the clergy would know of the privilege that attends
their respective profession, and their clients, patients or
(..continued)
declined to adopt the privilege after determining that the
privilege failed to satisfy two of the four factors - the same
factors which are not satisfied here. See In re Inquest
Proceedings, 676 A.2d 790 (Vt. 1996).
31
parishioners would also be aware that their confidential conver-
sations are protected from compelled disclosure.21
Moreover, even assuming arguendo that children and
their parents generally are aware of whether or not their commu-
nications are protected from disclosure, it is not certain that
the existence of a privilege enters into whatever thought
processes are performed by children in deciding whether or not to
confide in their parents. Indeed, the existence or nonexistence
of a parent-child privilege is probably one of the least
important considerations in any child's decision as to whether to
reveal some indiscretion, legal or illegal, to a parent.
Moreover, it is unlikely that any parent would choose to deter a
child from revealing a confidence to the parent solely because a
federal court has refused to recognize a privilege protecting
such communications from disclosure.
21. Notably, the Advisory Committee on the Rules of Evidence
reached a similar conclusion with respect to a marital
communications privilege. The Advisory Committee explained:
[Proposed Rule 505] recognizes no privilege for
confidential communications [between spouses]. . . .
[It cannot] be assumed that marital conduct will be
affected by a privilege for confidential communications
of whose existence the parties in all likelihood are
unaware. The other communication privileges, by way of
contrast, have as one party a professional person who
can be expected to inform the other of the existence of
the privilege.
Proposed Fed. R. Evid. 505 advisory committee's note, 56 F.R.D.
at 245-46.
32
Finally, the proposed parent-child privilege fails to
satisfy the fourth condition of the Wigmore test. As explained
above, any injury to the parent-child relationship resulting from
non-recognition of such a privilege would be relatively
insignificant. In contrast, the cost of recognizing such a
privilege is substantial: the impairment of the truth-seeking
function of the judicial system and the increased likelihood of
injustice resulting from the concealment of relevant information.
See United States v. Nixon, 418 U.S. 683, 709 (1974) (stating
that "[t]he need to develop all relevant facts in the adversary
system is both fundamental and comprehensive").
Moreover, because no clear benefit flows from the
recognition of a parent-child privilege, any injury to the
parent-child relationship caused by compelled testimony as to
confidential communications is necessarily and substantially out-
weighed by the benefit to society of obtaining all relevant
evidence in a criminal case. See, e.g., In re Inquest
Proceedings, 676 A.2d 790, 793 (Vt. 1996) (finding that although
harm may result from disclosure of a child's confidence, such
harm does not outweigh "the public interest in seeking the truth
within the context of a criminal investigation"); State v. Maxon,
756 P.2d 1297, 1301 (Wash. 1988) (stating that the loss of
relevant evidence outweighs the public policy favoring a
parent-child privilege). In short, the public good derived from
maintaining the confidentiality of parent-child communications
33
transcends the value of effective and efficient judicial truth-
finding.
An even more compelling reason for rejecting a parent-
child privilege stems from the fact that the parent-child
relationship differs dramatically from other relationships. This
is due to the unique duty owing to the child from the parent. A
parent owes the duty to the child to nurture and guide the child.
This duty is unusual because it inheres in the relationship and
the relationship arises automatically at the child's birth.
If, for example, a fifteen year old unemancipated child
informs her parent that she has committed a crime or has been
using or distributing narcotics, and this disclosure has been
made in confidence while the child is seeking guidance, it is
evident to us that, regardless of whether the child consents or
not, the parent must have the right to take such action as the
parent deems appropriate in the interest of the child. That
action could be commitment to a drug rehabilitation center or a
report of the crime to the juvenile authorities. This is so
because, in theory at least, juvenile proceedings are undertaken
solely in the interest of the child. We would regard it
intolerable in such a situation if the law intruded in the guise
of a privilege, and silenced the parent because the child had a
privilege to prevent disclosure.
This results in the analysis that any privilege, if
recognized, must be dependent upon both the parent and child
34
asserting it. However, in such a case, the privilege would
disappear if the parent can waive it. It follows therefore that,
if a child is able to communicate openly with a parent and seeks
guidance from that parent, the entire basis for the privilege is
destroyed if the child is required to recognize that confidence
will be maintained only so long as the parent wants the
conversation to be confidential. If, however, the parent can
waive the privilege unilaterally, the goal of the privilege is
destroyed. When the Supreme Court authorized a psychotherapist-
patient privilege in Jaffee, it told us as much in stating,
We part company with the Court of Appeals on a
separate point. We reject the balancing
component of the privilege implemented by
that court and a small number of States.
Making the promise of confidentiality
contingent upon a trial judge's later
evaluation of the relative importance of the
patient's interest in privacy and evidentiary
need for disclosure would eviscerate the
effectiveness of the privilege. As we
explained in Upjohn, if the purpose of the
privilege is to be served, the participants
in the confidential conversation 'must be
able to predict with some degree of certainty
whether particular discussions will be
protected. An uncertain privilege, or one
which purports to be certain but results in
widely varying applications by the courts, is
little better than no privilege at all.'
Jaffee v. Redmond, 116 S. Ct. 1923, 1932 (1996) (quoting Upjohn
Co. v. United States, 449 U.S. 383, 393 (1981)).
It follows then that an effective parent-child
privilege requires that the parent's lips be sealed but such a
35
sealing would be inexcusable in the parent-child relationship.
No government should have that power.
Indeed the obligation on the parent to act goes far
beyond the parent's obligation to raise and nurture the child.
Thus a parent-child privilege implicates considerations which are
vastly different from the traditional privileges to which resort
is had as analogues.
In sum, neither historical tradition, nor common-law
principles, nor Wigmore formulations, nor the logic of
privileges, nor the "reason and experience" of the various states
supports creation of a parent-child privilege.
D. RECOGNITION OF A PARENT-CHILD PRIVILEGE SHOULD BE LEFT TO
CONGRESS.
Although we, and our sister courts, obviously have
authority to develop and modify the common law of privileges, we
should be circumspect about creating new privileges based upon
perceived public policy considerations. This is particularly so
where there exist policy concerns which the legislative branch is
better equipped to evaluate. To paraphrase Justice Scalia,
writing in dissent in Jaffee, and referring to the psycho-
therapist privilege:
The question before us today is not whether there should be an
evidentiary privilege for [parent-child
communications]. Perhaps there should. But the
question before us is whether (1) the need for that
privilege is so clear, and (2) the desirable contours
of that privilege are so evident, that it is
appropriate for this [c]ourt to craft it in common law
fashion, under Rule 501.
36
Jaffee v. Redmond, 116 S. Ct. 1923, 1940 (1996) (Scalia, J.
dissenting).
The legislature, not the judiciary, is institutionally
better equipped to perform the balancing of the competing policy
issues required in deciding whether the recognition of a parent-
child privilege is in the best interests of society. Congress,
through its legislative mechanisms, is also better suited for the
task of defining the scope of any prospective privilege.22
Congress, is able to consider, for example, society's moral,
sociological, economic, religious and other values without being
confined to the evidentiary record in any particular case. Thus,
in determining whether a parent-child privilege should obtain,
Congress can take into consideration a host of facts and factors
which the judiciary may be unable to consider. These
considerations are also relevant to determining whether the
privilege, if it is to be recognized, should extend to adult
children, adopted children or unemancipated minors.23
22. In a state context, in In re: A & M, 403 N.Y.S.2d 381 (App.
Div. 1978), the New York Appellate Division expressly declined to
adopt a common-law privilege, explaining: "[A]lthough there are
persuasive arguments to apply a privilege in these circumstances,
we believe that the creation of a privilege devolves exclusively
on the Legislature." Id. (footnotes omitted).
We recognize, of course, that the Advisory Committee Notes to
the Federal Rules of Evidence provide that privileges shall
continue to be developed by the courts of the United States. See
Fed. R. Evid. 501 advisory committee's notes.
23. Should the privilege be restricted to unemancipated minors
or should it extend to all children, regardless of age,
unemancipated and emancipated? No apposite case, state or
federal, provides a parent-child privilege for adults or
emancipated children. See, e.g., In re Erato, 2 F.3d 11 (2d Cir.
37
Among additional factors that Congress could consider
are other parameters of familial relationships. Does "parent"
include step-parent or grand-parent? Does "child" include an
adopted child, or a step-child? Should the privilege extend to
siblings? Furthermore, if another family member is present at
the time of the relevant communication, is the privilege
automatically barred or destroyed? See, e.g., In re Grand Jury
Subpoena (Matthews), 714 F.2d at 224-25 (in-laws); United States
v. (Under Seal), 714 F.2d at 349 n.4 (brother and cousin).
(..continued)
1993); State v. Willoughby, 532 A.2d 1020 (Me. 1987); In re Gail
D., 525 A.2d 337 (N.J. Super. Ct. App. Div. 1987); State v.
Maxon, 756 P.2d 1297 (Wash. 1988). Nor do any state statutes
provide a privilege for emancipated children. Indeed, both Idaho
and Minnesota, by statute, limit their variants of the parent-
child privilege to children under age 18. See Idaho Code §§ 9-
203(7), 32-101 (1990 & Supp. 1995); Minn. Stat. §§ 595.02(1)(j),
645.451 (1988 & Supp. 1996).
In the present case, of course, the daughter in the
Delaware appeals is 16 years old and unemancipated. Hence, the
issue of extending the privilege to an adult or an emancipated
child is not relevant insofar as the Delaware target is
concerned. However, the appellant-son in the Virgin Islands
case, who was 18 years old at the time of the relevant
communication, and, therefore, no longer a minor nor
unemancipated, urges that the privilege be unrestricted with
regard to age. Under Virgin Islands law, the son would be deemed
emancipated. See V.I. Code Ann. tit. 16, § 261 (providing that
the age of majority in the Virgin Islands is 18 years old); V.I.
Code Ann. tit. 16, § 221(4) (minor becomes "emancipat[ed]" by
reason of having attained the age of majority"); see also In Re
Guardianship of Penn, 15 F.3d 292, 295 (3d Cir. 1994) (noting
that Virgin Islands legislature, in 1972, lowered the age of
majority from 21 to 18); Galvan v. Hess Oil Virgin Islands Corp.,
549 F.2d 281, 288 (3d Cir. 1977)(same).
Similarly, federal law would indicate that an
individual attains adulthood at the age of 18 years. See 18
U.S.C. § 2255 (1984) (defining "minor" as "any person under the
age of 18 years"); 18 U.S.C. § 5031 (Supp. 1996) (defining
"juvenile" as a person who has not attained his eighteenth
birthday).
38
Hence, as a court without the ability to consider
matters beyond the evidentiary record presented, we should be
chary about creating new privileges and ordinarily should defer
to the legislature to do so. See, e.g., Branzburg v. Hayes, 408
U.S. 665, 706 (1972) (plurality) (suggesting that courts should
yield to legislatures in creating and defining privileges);
People v. Dixon, 411 N.W.2d 760, 763 (Mich. Ct. App. 1987)
(stating that creation of parent-child testimonial privilege is
best left to legislature); In re Parkway Manor Healthcare Ctr.,
448 N.W.2d 116, 121 (Minn. Ct. App. 1989) (deferring to
legislature to create a privilege for self-evaluation data); Cook
v. King County, 510 P.2d 659, 661 (Wash. Ct. App. 1973)
("Although 'privilege' is a common-law concept, the granting of a
testimonial privilege is a recognized function of legislative
power."). Indeed, the Supreme Court has explained that one basis
for its disinclination to recognize new privileges is deference
to the legislature:
We are especially reluctant to recognize a privilege in an
area where it appears that Congress has considered the
relevant competing concerns but has not provided the
privilege itself.
University of Pennsylvania v. EEOC, 493 U.S. at 189.
Congress too has recognized the importance of privilege
rules insofar as the truth-seeking process is concerned. Con-
gress specifically addressed that subject when it delegated rule-
making authority to the Supreme Court as to rules of procedure
and evidence. It did so by identifying and designating the law
39
of privileges as a special area meriting greater legislative
oversight. Congress expressly provided that "[a]ny . . . rule
creating, abolishing, or modifying an evidentiary privilege shall
have no force or effect unless approved by Act of Congress." 28
U.S.C. § 2074(b) (1994). In contrast, all other evidentiary
rules promulgated by the Supreme Court and transmitted to
Congress automatically take effect unless Congress enacts a
statute to the contrary. See 28 U.S.C. § 2074(a) (1994).24
IV.
A few further observations about the dissent and why it
does not persuade us that the parent-child privilege outweighs
the government's interest in disclosure:
First, in her dissenting and concurring opinion, Judge
Mansmann attempts to distinguish the Virgin Islands appeal (where
a father has been subpoenaed to testify about communications made
to him by his son who is over the age of eighteen25), from the
24. The preferred method by which any Rule of Evidence would be
proposed and ultimately promulgated would be by proceeding:
first, through the Advisory Committee on Rules of Evidence, then
to the Judicial Conference Standing Committee on Practice and
Procedure (with public notice and comment at both these stages),
then to the Judicial Conference of the United States, and then,
of course, to the Supreme Court, which, if the proposed Rule was
approved, would then transmit the proposed Rule to Congress for
its consideration. See 28 U.S.C. § 2072, et seq.; 18 U.S.C. §§
3402, 3771, 3772.
25. Because the son is over eighteen years of age, under Judge
Mansmann's formulation of the privilege, we assume there would
have to be a hearing by the district court to assess various
factors to determine whether a privilege would lie (since Judge
Mansmann declines to adopt a bright-line rule with regard to
40
Delaware appeal (where a teenage daughter has been subpoenaed to
give testimony against her father). The record of the Delaware
appeal, however, does not inform us as to the nature of the
testimony being sought or the nature of the daughter's knowledge.
Does it arise from observations, overheard statements,
communications with her father, or some other source? If indeed
it arises from confidential communications, does the privilege
advocated by Judge Mansmann in the Virgin Islands case then
apply? If so, is the alleged distinction a valid one, or do both
appeals suffer from the same deficiencies we have identified with
respect to any parent-child privilege?
Secondly, we note that the Virgin Islands privilege
which Judge Mansmann would recognize, while characterized as a
limited one, would only come into play where a child has made a
confidential communication to a parent in the course of seeking
parental advice. See Dissenting Opinion at 7.26 Both of these
(..continued)
age). These "factors" would include such variables as age,
maturity, the child's residence and the precise nature of the
communication. See Dissenting Opinion at 7.
We have already discussed the limitation of such a
privilege to minors, (see note 23 supra) and know of no case
where an adult child and his or her parent have been able to
invoke the privilege.
26. We note that, although Judge Mansmann urges that we
recognize a privilege in the Virgin Islands case, the record in
the Virgin Islands case does not disclose the content of the
communication at issue, and reveals no evidence that the son
sought advice from his father -- even if one may infer that the
son's communication was otherwise confidential in nature.
Therefore, although the dissent advocates applying the privilege
in the Virgin Islands case, Judge Mansmann fails to identify and
thus satisfy her threshold qualification of the child seeking
41
qualifications -- (1) a confidential communication, spoken or
written, and (2) arising in the course of seeking parental
advice27 -- would have to be determined by a hearing - a mini-
trial - which would have the effect of destroying the
confidential nature of the communication (since the communication
would have to be divulged so that the district court could
determine its precise nature). It would also endow the district
court with virtually unlimited discretion in granting or denying
the privilege (since the dissent provides little guidance to the
district court for making such a determination). The exercise of
this discretion would undermine the very essence of a privilege
that "the participants in the confidential conversation" can
predict "with some degree of certainty" that their conversation
will be protected. See Jaffee v. Redmond, 116 S. Ct. 1923, 1932
(1996).
Thirdly, the crafting of the privilege as a jointly-
held privilege (by both parent and child) undermines the
dissent's goal of encouraging a child to seek the advice of a
parent and protecting the parent-child relationship. The entire
thrust of the dissent's opinion is that a child should feel
confident, in communicating with a parent to seek advice and
(..continued)
advice from a parent -- a requirement that she identifies as
essential for such a privilege.
27. As the dissent frames the privilege, if a child divulges to
his parent that he is the Unabomber, a sex offender or an abuser
of drugs, and does so without seeking guidance or advice, the
privilege would be unavailable.
42
guidance, that the communication will remain inviolate. However,
the dissent, then straddling the fence, also argues that the
parent can choose to violate such a confidence and report a
confidential communication to others (presumably the authorities)
in the interest of parental judgment. See Dissenting Opinion at
8 n.6. We know of no privilege that can operate in such a two-
way fashion and still remain effective.
The few observations made above do no more than
highlight the stark difference between the dissent's view of the
public good which subordinates the government's interest in
disclosure to a parent-child privilege, and the position we have
taken which recognizes justice and disclosure as the predominant
principles for ascertaining truth. See Trammel v. United States,
445 U.S. 40, 47 (1980).
Finally, we observe that implicit in the various
discussions by courts (both federal and state) of the parent-
child privilege is the fact that the "strong and trusting parent-
child relationships" which the dissent would preserve, see
Dissenting Opinion at 2, have existed throughout the years
without the concomitant existence of a privilege protecting that
relationship.
43
V.
In short, if a new privilege is deemed worthy of
recognition, the wiser course in our opinion is to leave the
adoption of such a privilege to Congress.
Although we are not reluctant to chart a new legal
course, such an action should not be premised upon unsound legal
principles or emotion. The instant appeals furnish us with
neither reason, nor analysis, nor a basis upon which to fashion
such a privilege.
All that we have been told by the appellants and by the
dissent is: we should look to the healthy, psychological
development of children; and that compelling the testimony of a
parent is repugnant and indecent; that it is more important that
a child communicate with a parent than it is to compel a parent's
testimony; and that the preservation of the family and the
protection of a strong and trusting parent-child relationship
trumps all other interests. These conclusions, as well as the
criteria which the dissent would require as to the nature of the
communications and whether they were imparted in an effort to
seek advice and counseling, cannot be satisfied without the
benefit of evidence, expert testimony, hearings or recognized
authority. If a new privilege were to be engraved in the
concrete of our jurisprudence as the dissent argues, then it
should be framed so that its contours are clear and unambiguous,
and it should be capable of being applied precisely, without the
44
need for multiple pretrial hearings, in addition to the
privilege's existence being known to the participants. Sympathy
alone cannot justify the creation of a new and unprecedented
privilege which does not meet the standards set by Congress, the
Supreme Court and this court.
Accordingly, we will affirm the district court's order
of June 19, 1995, which denied the father's motion to quash the
grand jury subpoena in the Virgin Islands case (95-7354). We
will also affirm the district court's order of September 10, 1996
in the Delaware cases (96-7529 and 96-7530), denying the joint
motion to quash the grand jury subpoena and rejecting appellants'
claims concerning the Schofield affidavit and in camera review.
IN RE GRAND JURY PROCEEDINGS (IMPOUNDED), No. 95-7354
In Re Grand Jury -- John Doe I, John Doe, II, Nos. 96-7530 and
96-7259
MANSMANN, J., concurring and dissenting.
I write separately because I am convinced that the
testimonial privilege issue raised by the Virgin Islands appeal
is substantially different from that presented in the Delaware
appeals28 and should be resolved in favor of the targeted son.
28. In the Virgin Islands appeal, a father has been
subpoenaed to testify regarding communications made to him by his
teenaged son. In the Delaware appeals, on the other hand, a
teenaged daughter has been subpoenaed to give testimony, based on
her own knowledge, which could implicate her father in a crime;
confidential communications between parent and child are not
45
The Virgin Islands appeal, which challenges the denial of a
motion to quash a grand jury subpoena, requires that we confront
an issue of first impression in our circuit: should we make
available to a parent and child an evidentiary privilege which
could be invoked to prevent compelling that parent to testify
regarding confidential communications made to the parent by his
child in the course of seeking parental advice and guidance?29
It appears that this precise question is one of first impression
in the federal courts.
Because I conclude that the public good at issue, the
protection of strong and trusting parent-child relationships,
outweighs the government's interest in disclosure, I would
exercise the authority granted to the federal courts by Congress
under Rule 501 of the Federal Rules of Evidence and would
recognize a limited privilege. Accordingly, I respectfully
dissent.
(..continued)
alleged in the Delaware appeals. As I will explain, the
privilege question to be resolved in the Virgin Islands appeal
focuses on the confidential communication made by a child in the
course of seeking parental advice. Consequently, it is more
narrow and more compelling than that presented in the Delaware
appeals.
29. The majority contends that the record in the Virgin
Islands matter "reveals no evidence that the son sought advice
from his father." (Typescript at 40 n.25.) This is incorrect.
In the Motion to Quash filed by the son, the son refers to the
fact that he "spoke privately with his father, seeking his
father's counsel about the matters which are the subject of the
Grand Jury's investigation."
46
I.
This case, unlike most which we consider, does not require
that we apply the law as it exists with respect to testimonial
privilege. Instead, we are asked to determine what the law in
this area ought to be. While most courts have declined to
recognize a parent-child testimonial privilege, they have done so
in contexts far different from the one presented here. I am
convinced that this is an appropriate case in which to recognize
and set parameters for a limited privilege. Doing so is critical
to several important public policy interests such as the
"protection of strong and trusting parent-child relationships and
the preservation of the sanctity of the family. . . ."
Appellant's Brief at 8. The recognition of a parent-child
privilege is essential to "the healthy psychological development
of children and to the development of society as a whole";
compelling a parent to testify adversely to a child is
"`repugnant to social sensibilities' and contrary to a democratic
view of decency." Wendy Meredith Watts, The Parent-Child
Privilege: Hardly a New or Revolutionary Concept, 28 Wm. & Mary
L. Rev. 583, 611-13 (1987).
These and other related public policy arguments have been
advanced in a spate of articles by academicians and other legal
commentators who, virtually uniformly, favor incorporating a
parent-child testimonial privilege into the fabric of the law.30
30. See Maj. Op. (Typescript at 13 n.11).
47
The courts, however, federal and state, have been reluctant to
make these policy arguments the foundation for a "new" privilege.
In the circumstances presented here, I do not share that
reluctance and am convinced that where compelled testimony by a
parent concerns confidential statements made to the parent by his
child in the course of seeking parental advice and guidance, it
is time to chart a new legal course.
II.
A.
Any inquiry concerning the federal court's extension of
testimonial privilege necessarily begins with Rule 501 of the
Federal Rules of Evidence.31 Under this Rule, as interpreted by
the Supreme Court in United States v. Trammel, 445 U.S. 40, 47
(1980), the federal courts are authorized to "develop[] . . .
testimonial privileges in federal criminal trials governed by the
31. Rule 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 principle 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 witness, person, government, state or
political subdivision thereof shall be determined in
accordance with state law.
48
principles of the common law as they may be interpreted . . . in
the light of reason and experience." In enacting Rule 501,
Congress specifically declined to restrict development in the law
of privilege to the legislative realm and declined to limit the
range of possible privileges. Congress instead crafted Rule 501
in order to "provide the courts with the flexibility to develop
rules of privilege on a case-by-case basis." It was Congress'
intent "to leave the door open to change." Id.
The courts' role in fostering evolution in the area of
testimonial privilege was reinforced recently by the Supreme
Court in Jaffee v. Redmond, 1996 WL 315841 at *4 (U.S.) (footnote
omitted):
The Senate Report accompanying the 1974 adoption of the
[Federal Rules of Evidence] indicates that Rule 501
"should be understood as reflecting the view that the
recognition of a privilege based on a confidential
relationship should be determined on a case-by-case
basis." S. Rep. No. 93-1277, p. 13 (1974). The Rule
thus did not freeze the law governing the privileges of
witnesses in federal trials at a particular point in
our history, but rather directed federal courts to
"continue the evolutionary development of testimonial
privileges." Trammel v. United States, 445 U.S. 40, 47
(1980); see also University of Pennsylvania v. EEOC,
493 U.S. 182, 189 (1990).
According to the Court, "the common-law principles underlying the
recognition of testimonial privileges can be stated simply." Id.
Evidentiary privileges are "exceptions to the demand for every
man's evidence" and should "not be lightly created nor
expansively construed, for they are in derogation of the search
for the truth." United States v. Nixon, 418 U.S. 683, 709-10
49
(1974). Despite the strictures of this general rule, the federal
courts may be justified in recognizing a testimonial privilege
where that privilege "promotes sufficiently important interests
to outweigh the need for probative evidence." University of
Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990) (quoting Trammel,
445 U.S. at 51). This is especially appropriate where, as here,
there is no indication that Congress, in enacting Rule 501 -- or
in any other context -- has evaluated the competing concerns
associated with a particular privilege and has rejected that
privilege. See University of Pennsylvania v. EEOC, 493 U.S. 182,
189 (1990). It is abundantly clear that under Rule 501 and the
interpretive caselaw federal courts have authority in appropriate
circumstances to modify the availability and scope of testimonial
privileges and to recognize new common law privileges.
50
B.
When a federal court considers extending the scope of a
testimonial privilege or recognizing a new privilege, Rule 501
requires that the court engage in a balancing process, weighing
the need for confidentiality in a particular communication
against the need for relevant evidence in a criminal proceeding.
Trammel, 445 U.S. at 50. I am convinced that the public good
derived from a child's ability to communicate openly with and to
seek guidance from his or her parents is of sufficient magnitude
to transcend the judicial system's interest in compelled parental
testimony.32 Recognizing that "our authority is narrow in scope
32. In addition to the balancing test laid out in Trammel,
Dean Wigmore has suggested a four-part test for determining
whether or not a particular testimonial privilege should be
recognized. In order for a privilege to obtain: (1) the
communications must originate in a confidence that they 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 society, ought to be sedulously fostered; and
(4) the injury that would inure to the relation by the disclosure
of the communication must be greater than the benefit thereby
gained for the correct disposal of litigation. 8 John Henry
Wigmore, Evidence § 2285 (J. McNaughton rev. ed. 1961); see also
In re Grand Jury Investigation, 918 F.2d 374, 383-84 (3d Cir.
1990) (weighing Dean Wigmore's four prerequisites). I part
company with the majority in the application of this test and am
convinced that the factors analyzed under the Rule 501 balancing
test are sufficient to satisfy the Wigmore test as well. The
first condition of the Wigmore test is satisfied in that the
parent-child relationship is one which naturally gives rise to
confidential communication. Second, confidentiality underlies
the parent child relationship; mutual trust encourages children
to consult parents for guidance with the expectation that the
parent will, in appropriate circumstances, honor the
confidentiality of those statements. Third, the family unit is
the building block of our society and the parent-child
relationship is at the core of that family unit. Finally,
although the majority disputes this point, I am convinced that
51
and [to] be exercised only after careful consideration in the
face of a strong showing of need for the privilege," In re Grand
Jury Proceedings, 918 F.2d 374, 383 (3d Cir. 1990), I stress that
the privilege which I would recognize is a limited one, applying
only to compelled testimony concerning confidential
communications made to a parent by his child in the course of
seeking parental advice. Although this case might have been more
compelling had the son been a minor at the time of his statements
to his father, I would not adopt a bright-line rule applicable
only to those who have not reached legal majority. In order to
advance the policy interests which the targeted son articulated,
I would prefer to leave the particular factors to be considered
in determining application of the privilege to development on a
case-by-case basis. I expect that these factors would include
such variables as age, maturity, whether or not the child resides
with the parents, and the precise nature of the communications
for which the privilege is claimed. The privilege would apply to
situations in which it is invoked by both parent and child; this
case does not require that we confront applicability of the
privilege where it is invoked by the parent or the child alone.
The goal in recognizing this limited privilege would not be
to guarantee confidentiality per se but to shield parent-child
relationships from the devastating effects likely to be
(..continued)
the damage resulting from compelling a parent to testify against
his child, in most if not all cases, outweighs the benefit
associated with correct disposal of the litigation.
52
associated with compelled testimony. As one commentator has
written:
[T]o conceive of . . . privileges merely as exclusionary
rules, is to start out on the wrong road and, except by
happy accident, to reach the wrong destination. They
are, or rather by chance of litigation may become,
exclusionary rules; but this is incidental and
secondary. Primarily they are a right to be let alone,
a right to unfettered freedom, in certain narrowly
prescribed relationships, from the state's coercive or
supervisory powers. . . .
Louisell, Confidentiality, Conformity, and Confusions:
Privileges in Federal Court Today, 31 Tul. L. Rev. 101, 110-11
(1956). An effective parent-child relationship is one deserving
of protection. It rests upon a relationship of mutual trust
where the child has the right to expect that the parent will act
in accordance with the child's best interest.33 If the state is
permitted to interfere in that relationship by compelling parents
to divulge information conveyed to them in confidence by their
children, mutual trust, and ultimately the family, are
threatened.
33. While it is true, as the majority says, that few
children are likely to be aware of a privilege per se, there is,
in any event, a certain expectation that this information will
not be disclosed.
As the majority points out, there may be circumstances
in which a parent, having heard communications from a child,
decides that it is in the child's best interest that those
communications be divulged. The privilege which I advocate would
not interfere with that parental judgment. Presumably, if the
parent is indeed acting in the child's best interest, disclosure
will not ultimately threaten the family relationship which I seek
to protect. Furthermore, if the parent is willing to disclose
information which may harm the child, the relationship is already
beyond the need for protection.
53
While I am aware that the availability of even this limited
parent-child privilege may, in some rare circumstances,
complicate a criminal fact-finding proceeding, I am convinced
that the risk is one well worth bearing. "[T]o reach the truth
at the cost of the parent-child relationship would be to win the
battle and lose the war." Wendy Meredith Watts, The Parent-Child
Privileges: Hardly a New or Revolutionary Concept, 28 Wm. & Mary
L. Rev. 583, 609 (1987). This is especially true where, as here
in the Virgin Islands case, the parent is not a co-defendant or a
co-witness to a criminal act, and is not alleged to be hiding the
instrumentality or the fruits of a criminal act.
I cannot agree with the majority that testimonial privileges
must be regarded as automatic impediments to the effectiveness of
the judicial system. In limited circumstances these privileges
are critical to important policy interests. I am convinced, as
was the district court, that "youngsters today are increasingly
faced with excruciatingly dangerous and difficult situations" and
that "the law ought to do everything possible to encourage
children to confide in their parents and turn to [them] in times
of trouble." In re Grand Jury Proceeding, Misc. No. 95-009, at
9, 10 (D.V.I. June 19, 1995).
C.
The spousal privilege is the only testimonial privilege
based on a familial relationship to have received general
54
acceptance in the federal courts.34 See In re Erato, 2 F.3d 11,
16 (2d Cir. 1993). In arguing that we should uphold the father's
claim of privilege in this case, I am motivated by many of the
same concerns which underlie the spousal privilege.35 The policy
advanced by the spousal privilege "is the protection of the
marital confidences, regarded as so essential to the preservation
of the marriage relationship as to outweigh the disadvantages to
the administration of justice which the privilege entails."
Wolfle v. United States, 291 U.S. 7, 14 (1934). Similar concerns
are present here:
34. Four relationship-based privileges have received
federal court recognition: those between penitent and priest,
attorney and client, physician and patient, and, most recently,
the privilege between therapist and patient. See Trammel v.
United States, 445 U.S. 40, 51 (1980), and Jaffee v. Redmond,
1996 WL 315841 (U.S.).
35. Some commentators have sought to analogize the parent-
child privilege to the more widely recognized professional
testimonial privileges such as that between attorney and client,
priest and penitent, and physician and patient:
The parent-child relationship is analogous to the privileged
professional relationships in many respects. As the
professional exercises his skill in the delicate
relationship with his client, the parent plays a unique
and sensitive role in the life of his "client," the
child. In fulfilling this role, the parent must assume
many of the same responsibilities as professionals.
The parent, for example, often must serve as the
child's legal advisor, spiritual counselor, and
physical and emotional health expert. The necessity
for confidentiality is comparable to that within the
professional relationships. Like the attorney, priest,
or psychiatrist, parents must establish an atmosphere
of trust to facilitate free and open communication.
Gregory W. Franklin, Note, The Judicial Development of the
Parent-Child Testimonial Privilege: Too Big for its Britches?
26 Wm. & Mary L. Rev. 145, 151 (1984).
55
Ideally, the child-parent relationship encompasses aspects
of the marital relationship -- mutual love, affection,
and intimacy . . . the parent providing emotional
guidance and the child relying on him for help and
support. . . . As in the marital . . . relation[ship],
this optimal child-parent relationship cannot exist
without a great deal of communication between the two.
. . . Manifestly, the parent's disclosure of such
information to a third party, . . . would deter
continued communication between child and parent.
Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L.
Rev. 771, 781 (1979). The reasoning of the district court in In
Re Agosto, 553 F. Supp. 1298, 1325 (D. Nev. 1983), is also
instructive:
There is no reasonable basis for extending a testimonial
privilege for confidential communications to spouses,
who enjoy a dissoluble legal contract, yet denying a
parent . . . the right to claim such a privilege to
protect communications made within an indissoluble
family unit, bonded by blood, affection, loyalty, and
tradition. And further, if the rationale behind the
privilege of a witness-spouse to refuse to testify
adversely against his or her spouse in a criminal
proceeding serves to prevent the invasion of the
harmony and privacy of the marriage relationship
itself, then affording the same protection to the
parent-child relationship is even more compelling.
The Court in Trammel also recognized that privileges
"affecting marriage, home and family relationships," 445 U.S. at
48, are especially worthy of consideration.36 Within the family
36. While the majority opinion distinguishes the privilege
which I would recognize from those involving professional
relationships, it does not address the parallels which exist
between a parent-child privilege and the spousal privilege. In
Trammel v. United States, 445 U.S. 40 (1980), the Supreme Court
held that in federal courts, the spousal privilege belongs solely
to the spouse who is a witness. "The court concluded that the
justification for the privilege -- prevention of marital discord
-- was not served by allowing the defendant spouse to prevent the
voluntary testimony of the witness spouse . . . . The court
noted that state law was moving toward granting the privilege
56
structure but beyond the marital partners, I can think of no
relationship more fundamental than that between parent and child.
Society has an interest in protecting the family structure; the
parent-child relationship is amenable to identification and
segregation for special treatment.
D.
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 based on a
desire to promote the solidarity and trust that support the
family unit. The Napoleonic Code also prevented the disclosure
of confidences between family members." J. Tyson Covey, Note,
Making Form Follow Function: Considerations in Creating and
Applying a Statutory Parent-Child Privilege, 1990 U. Ill. L. Rev.
879, 883. 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. Id.
(..continued)
solely to the witness. . . ." Developments in the Law --
Privileged Communications, 98 Harv. L. Rev. 1450, 1568 (1985).
The goal of protecting family relationships is paramount in the
case now before us; the privilege which I would recognize is
based on concerns broader than the guarantee of confidentiality.
As the caselaw with respect to spousal privilege establishes, a
privilege may indeed advance these broader familial interests
without requiring that the child be allowed to silence a parent
who is willing to testify.
57
Three states (Idaho, Massachusetts and Minnesota) have
adopted some variant of the parent-child privilege by statute,37
and one state, New York, has judicially recognized the privilege.
In re A&M, 403 N.Y.S.2d 375, 61 A.2d 426 (1978).38 Furthermore,
37. The Idaho statute limits the privilege to
communications by minors to their parents. It provides in
relevant part:
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 . . . .
Idaho Code § 9-203(7) (1990 & Supp. 1995).
In Massachusetts, a minor child is deemed incompetent
to testify against her parent in a criminal proceeding:
An unemancipated, minor child, living with a parent, shall
not testify before a grand 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.
Mass. Gen. L. ch. 233, § 20 (1986 & Supp. 1996).
Minnesota also recognizes a limited parent-child
(minor) privilege:
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.
Minn. Stat. § 595.02(1)(i) (1988 & Supp. 1996).
38. The decision in this case rested on constitutional
grounds. See also People v. Fitzgerald, 422 N.Y.S.2d 309, 314
(Westchester County Ct. 1979) (parent-child privilege flows from
U.S. and New York State Constitutions).
58
our review of the caselaw convinces us that although a number of
courts have declined to recognize a parent-child privilege in one
form or another, the vast majority of those cases, indeed all of
the federal cases, are distinguishable, on significant grounds,
from the case before us.
Most cases discussing the availability of a parent-child
privilege have done so in the context of whether a child should
be compelled to testify against a parent.39 As the court of
appeals acknowledged in In re Grand Jury Proceedings (Starr), 647
F.2d 511, 513 n.4 (5th Cir. 1981), cases involving testimony by a
child regarding activities of or communications by a parent are
not as compelling as cases "involv[ing] confidential
communications from the chid to the parent" because the former do
not implicate "the desire to avoid discouraging a child from
39. See, e.g., Grand Jury Proceedings of John Doe v. United
States, 842 F.2d 244 (10th Cir.), cert. denied, 488 U.S. 894
(1988); United States v. Davies, 768 F.2d 893 (7th Cir.), cert.
denied sub nom. Kaprelian v. United States, 474 U.S. 1008 (1985);
United States v. Ismail, 756 F.2d 1253 (6th Cir. 1985); In re
Grand Jury Subpoena of Santarelli, 740 F.2d 816 (11th Cir. 1984);
In re Matthews, 714 F.2d 223 (2d Cir. 1983) (defendant compelled
to testify against in-laws); United States v. (Under Seal), 714
F.2d 347 (4th Cir.), cert. denied, 464 U.S. 978 (1983); United
States v. Jones, 683 F.2d 817 (4th Cir. 1982); In re Grand Jury
Proceedings (Starr), 647 F.2d 511 (5th Cir. Unit A 1981); United
States v. Penn, 647 F.2d 876 (9th Cir.), cert. denied, 449 U.S.
903 (1980); Gibbs v. State, 426 N.E.2d 1150 (Ind. App. 1981);
State v. Gilroy, 313 N.W.2d 513 (Iowa 1981); Three Juveniles v.
Commonwealth, 455 N.E.2d 1203 (Mass. 1983), cert. denied sub nom.
Keefe v. Massachusetts, 465 U.S. 1068 (1984); People v. Amos, 414
N.W.2d 147 (Mich. Ct. App. 1987); Cabello v. State, 471 So. 2d 332
(Miss. 1985), cert. denied, 476 U.S. 1164 (1986); De Leon v.
State, 684 S.W.2d 778 (Tex. Ct. App. 1984). This is, of course,
also the situation presented by the Delaware appeals.
59
confiding in his parents." A similar theme is echoed in Three
Juveniles v. Commonwealth, 455 N.E.2d 1203, 1206 (Mass. 1983),
cert. denied sub nom Keefe v. Massachusetts, 465 U.S. 1068
(1984): "Because a parent does not need the advice of a minor
child in the same sense that a child may need the advice of a
parent, the case for a testimonial privilege as to confidential
communications from parent to child seems weaker than the case as
to such a communication from child to parent." This distinction
separates the Virgin Islands and Delaware appeals.
A second set of cases refusing to recognize a parent-child
privilege involve children who were significantly older than the
son in this case and did not implicate communications seeking
parental advice and guidance.40 As the Court of Appeals for the
Second Circuit has recognized, these cases, too, "present[] a
40. See In re Erato, 2 F.3d 11, 12 (2d Cir. 1993) (child is
52); State v. Willoughby, 532 A.2d 1020, 1021 (Me. 1987) ("At the
time of the murder [the son] was in his early twenties and was no
longer living at the family home . . . ."); In re Gail D., 525
A.2d 337, 337 (N.J. Super. A.D. 1987) (defendant's father is 84
years old); State v. Maxon, 756 P.2d 1297 (Wash. 1988) (en banc).
While I recognize that the son in this case was 18 and,
therefore, under Virgin Island law had reached the "age of
majority" at the time of the confidential communication, 16
V.I.C. § 261 ("All persons are deemed to have arrived at the age
of majority at the age of 18 years, and thereafter shall have
control of their own actions and businesses and have all the
rights and be subject to all the liabilities of persons of full
age."), I find it significant that the son was living at home
when the communications were made. I also find critical the
district court's statement that, "It is apparent . . . that the
confidential communications which ensued were in the nature of a
child seeking advice from his father with whom he shared a close
and trusting relationship. In re Grand Jury Proceeding, Misc.
No. 95-0009, at 10 n.5
60
weaker claim for recognition of a parent child privilege. . . ."
In re Erato, 2 F.3d 11, 16 (2d Cir. 1993).
Several cases evaluating a claim of privilege did not have
the benefit of the balancing process embodied in Rule 501 of the
Federal Rules of Evidence41 and others did not involve
confidential communications made by a child to a parent.42
Finally, a number of cases rejecting the parent-child privilege
involved defendants who sought to bar voluntary testimony offered
41. See Port v. Heard, 764 F.2d 423, 428 (5th Cir. 1985)
(Parties "do not rely on Fed. R. Evid. 501; were this a Rule 501
case our holding might be different since, in terms of the
interests at stake, this case presents a compelling argument in
favor of recognition."); In re Kinoy, 326 F. Supp. 407 (S.D.N.Y.
1971) (decision issued four years before enactment of Fed. R.
Evid. 501); In re Terry W., 130 Cal. Rptr. 913, 915 (power to
recognize parent-child privilege did not belong to the court
under express provision of state statute); Marshall v. Anderson,
459 So. 2d 384, 386 (Fla. Dist. Ct. App. 1984) ("Directly unlike
the federal courts, which under Rule 501 of the Federal Rules of
Evidence are granted `the flexibility to develop rules of
privilege on a case-by-case basis . . . and to leave the door
open to change,' the courts of Florida are statutorily forbidden
to do so.") (citation omitted).
42. See Penn, 647 F.2d at 879 (defendant sought suppression
of drug evidence after police officer offered 5-year-old child
five dollars to show where drugs were concealed); United States
v. Duran, 884 F. Supp. 537, 541 (D.D.C. 1995) (defendant sought
exclusion of letter written to his son under parent-chid
privilege); People v. Sanders, 457 N.E.2d 1241, 1243 (Ill. 1983)
(defendant sought exclusion of communication with his wife in
front of their children), rev'd on other grounds, 457 N.E.2d 1241
(Ill. 1983); State v. Gilroy, 313 N.W.2d 513, 518 (Iowa 1981)
(defendant objected when his daughter was called as a witness on
behalf of the state); People v. Amos, 414 N.W.2d at 148
(privilege invoked by defendant mother to prevent son's adverse
testimony); State v. Bruce, 655 S.W.2d 66, 68 (Mo. Ct. App. 1983)
(defendant sought to bar testimony by prison guard about
conversation between defendant and his mother in front of the
guard).
61
by their parents.43 These cases do not present the threat to the
family relationship posed in the case before us. The importance
of this distinction was summarized by the Illinois Supreme Court
in People v. Sanders, 457 N.E.2d 1241, 1246 (Ill. 1983). The
court in Sanders wrote that cases in which the parent-child
privilege has been upheld have
relied heavily upon conjecture that a family member who is
forced to testify against her will would face the
unpleasant choice of aiding the criminal conviction of
a loved one, perjuring herself on the stand, or risking
a citation for contempt of court for refusing to
testify and the belief that the harshness of this
choice has the effect of undermining the family
relationship. Such a fear is without foundation where,
as in this case, the witness who is a family member
volunteers her testimony. The voluntariness of the act
is strong evidence that the choice the witness faced
was an easy one for her to make.
III.
While there is a substantial body of authority in which
courts have declined to recognize a parent-child privilege, none
of the cases addresses under Rule 501 of the Federal Rules of
Evidence the issue of a parent's compelled testimony with respect
to confidential advice-seeking statements made to the parent by
43. See, e.g., In re Terry W., 130 Cal. Rptr. at 914 n.1
("The mother did not claim a `parent-child privilege.'"); Cissna
v. State, 352 N.E.2d 793, 795 (Ind. Ct. App. 1976); In re Frances
J., 456 A.2d 1174, 1177 (R.I. 1983) (noting that "in all of the
cases in which the privilege has been recognized, the proponent
of the privilege has sought to preclude the compulsion of
testimony by a parent. In the case before us, on the other hand,
respondent has sought to inhibit or truncate the cross-
examination of her mother who had proposed to testify
voluntarily").
62
his teenage son .44 The facts underlying the Virgin Islands
appeal are critical to my conclusion that we should recognize a
44. This case is also distinguishable from the only two
federal decisions to have recognized some form of parent-child
privilege. In In re Grand Jury Proceedings (Greenberg), 11 Fed.
R. Evid. Serv. (Callaghan) 579 (D. Conn. 1982), a mother asserted
a testimonial privilege to prevent being compelled to testify
before a grand jury against her adult daughter. The privilege
asserted was based on the mother's First Amendment free exercise
claim. Specifically, the mother claimed that as a conservative
Jew, she could not testify against her daughter without violating
a basic tenet of her religion which forbids a parent to testify
against a child. The district court recognized a parent-child
privilege grounded in the First Amendment, holding that
"requiring Mrs. Greenberg to testify would interfere with her
free exercise of religion, though only to the extent that her
answers would incriminate her daughter." Id. at 582. The court
declined to recognize a common-law privilege protecting
confidential parent-child communications in general, however,
noting that although compelled disclosure of non-incriminating
confidences might damage the relationship between the mother and
her daughter, the harm would be less severe than if an
unemancipated minor were involved. Id. at 586-87.
In In re Grand Jury Proceedings (Agosto), 553 F. Supp.
1298 (D. Nev. 1983), the district court considered the motion of
a thirty-two year old son to quash a subpoena requiring him to
testify against his father. In granting the son's motion, the
court recognized an expansive common-law testimonial privilege,
holding that the government's interest in presenting all relevant
evidence does not outweigh "an individual's right of privacy in
his communications within the family unit, nor does it outweigh
the family's interest in its integrity and inviolability." Id.
at 1325. The court supported its decision in part by reference
to constitutional law affording protection for the family right
of privacy, id. at 1310, and the "expansive posture taken by
Congress in enacting Federal Rule of Evidence 501." Id. at 1325.
While I am in accord with the Agosto court with respect to the
importance of parent-child relationships, I am not prepared to
say that I would reach a similar result on similar facts. The
case presented in Agosto, involving as it did an adult child's
testimony against a parent, is far less compelling than the case
now before us. Furthermore, I would decline to adopt a broad
rule of privilege and, recognizing the need for caution and
restraint, have narrowly drawn the privilege which I would
recognize.
63
narrowly circumscribed parent-child privilege. The interests
involved in protecting the communications at issue here are far
stronger than those involved in previous cases. Consequently,
the result which I would reach is not as radical as it might
initially appear.
IV.
I am convinced that the public good to be derived from a
circumscribed parent-child testimonial privilege outweighs the
judicial system's interest in compelled parental testimony. I
would, therefore, recognize a privilege which could be invoked by
a parent and child together to bar compelled testimony concerning
confidential communications made to that parent by his child in
the course of seeking parental advice and guidance. I would
reverse the district court's order in the Virgin Islands matter
denying the motion to quash the grand jury subpoena.
64
V.
Although I am content with the disposition of the privilege
issue in the Delaware matters, I must comment on what is, to me,
a disturbing aspect of these appeals.
Appellants in the Delaware cases attack the propriety of the
subpoenas issued to the minor, arguing that the government failed
to make the minimum disclosure of the grand jury's purpose
required by our decisions in In re Grand Jury Proceedings
(Schofield I), 486 F.3d 85 (3d Cir. 1973), and In re Grand Jury
Proceedings (Schofield II), 507 F.2d 963, 966 (3d Cir. 1975).
These cases establish that a party seeking enforcement of a grand
jury proceeding is required to make
a minimum showing by affidavit . . . that each item sought
was (1) relevant to an investigation, (2) properly
within the grand jury's jurisdiction, and (3) not
sought primarily for another purpose.
507 F.2d at 966. While the information supplied in the affidavit
may be "scant," it must give "the trial judge some basis for
determining that the three-pronged test . . . has[s] been met."
Id. at 967.
It would be an overstatement to characterize the information
contained in the affidavit submitted here as even "scant" as the
affidavit contains nothing at all beyond a mere recitation of the
Schofield requirements. Our Schofield decisions, if they mean
anything at all, require something, albeit a small something,
more.
65
My concern over erosion of the Schofield requirements is
obviated in this case by the further proceedings conducted by the
district court to ensure the need for the minor daughter's
testimony. Were it not for these further proceedings, I am
convinced that reliance on the affidavit as it was written would
have been error.
66
67