In Re: Grand Jury

• Court: Court of Appeals for the Third Circuit
• Decided: January 9, 1997
• Docket: 95-7354,96-7529,96-7530
• Status: Unknown

Opinion

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In Re: Grand Jury Precedential or Non-Precedential: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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Recommended Citation "In Re: Grand Jury" (1997). 1997 Decisions. Paper 7. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/7

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No. 95-7354

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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

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)

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.

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.

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