ORDER DENYING MOTION TO QUASH
WHALEY, District Judge.
Before the Court is a Motion to Quash Subpoena (Ct.Rec. 2 (sealed)), which was filed on behalf of the Unemancipated Minor Child
By means of a subpoena ad testificandum, the Unemancipated Minor Child was commanded to testify before the grand jury. The Unemancipated Minor Child understood that he, his mother, and others were targets of the grand jury investigation, as was his father, who had already been charged by means of a criminal complaint. The Unemancipated Minor Child challenged the subpoena on the basis of a parent-child privilege. In support of this challenge, the Unemancipated Minor Child testified that he is seventeen years old, living with his parents. Although he did not provide any details or supporting expert testimony, the Unemancipated
Fed.R.Evid. 501 provides:
Hence, in the absence of any Supreme Court rules or federal statutes on this subject, the Court looks to the United States Constitution and the principles of the federal common law for guidance as to the nature and parameters of the asserted parent-child privilege.
It is well settled that there is a right to privacy associated with family life, whether that be found in the "penumbras and emanations" of the Bill of Rights,
Despite clear authority for a realm of privacy protecting families, federal courts have declined to find a constitutional underpinning for a parent-child privilege, with two exceptions discussed infra.
Three notable exceptions provide persuasive authority to the contrary but do not ultimately convince this Court that a sufficient constitutional basis exists for recognizing a parent-child privilege that precludes all testimony under the facts of this case. In In re Grand Jury Proceedings (Agosto), 553 F.Supp. 1298 (D.Nev.1983) the U.S. District Court for the District of Nevada concluded that the fundamental right to privacy stands as the basis for a testimonial disqualification for family members as well as a parent-child communication privilege. The court stated:
Id., 553 F.Supp. at 1325. See also Greenberg, 11 Fed.R.Evid.Serv. 579 (D.Conn.1982) (finding that the First Amendment formed the basis for a parent-child privilege of a Jewish family).
State courts in New York have also found that the privacy protections guaranteed by the Ninth and Fourteenth Amendments and the inherent right of privacy support the finding of a parent-child privilege in certain instances. See In re Application of A & M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (1978). Although the A & M court was of the opinion that "the creation of a [parent-child] privilege devolves exclusively on the Legislature," it ultimately concluded that a narrow, fact-bound privilege flowing directly from the federal Constitution precluded parents from being compelled to testify before the grand jury about their sixteen-year-old son. Id., 403 N.Y.S.2d at 381. The court reasoned:
Id. at 378 (citations omitted). In reaching its conclusion, the New York court did not create a blanket privilege. Instead, it determined that the privilege would protect the parents from answering those questions that would invade "the area of family confidentiality," as determined with the possible assistance
Id. at 382 n. 10. See also People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (Westchester County Ct.1979) (finding "classic example" of privileged communication where twenty-three-year-old son, while alone with his father, had a 15- to 20-minute conversation discussing a hit-and-run traffic accident).
Currently, the only limits on New York's privilege appear to be those articulated by the New York Court of Appeals in People v. Johnson, 84 N.Y.2d 956, 620 N.Y.S.2d 822, 644 N.E.2d 1378, 1379 (1994), when it stated:
Like others before it, this Court also considered whether there might be a constitutional basis for the marital communications privilege, which would suggest that a parent-child privilege should, by analogy, be recognized under the Constitution. However, case law makes quite clear that the marital communications privilege is the product of the common law, not constitutional jurisprudence. See, e.g., United States v. Lefkowitz, 618 F.2d 1313, 1319 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); LaRoche v. Wainwright, 599 F.2d 722, 726 (5th Cir.1979); United States v. Doe, 478 F.2d 194, 195 (1st Cir.1973).
While agreeing with the principles of Agosto, Greenberg, and A & M, this Court concludes there is an insufficient basis for deriving a blanket parent-child privilege from the Constitution that would require the quashing of the subpoena in this case. This ruling does not suggest that constitutional protection could never privilege parent-child communications or actions, if presented in light of a more fully developed factual record. Thus, this ruling is without prejudice to subsequent assertions of a parent-child privilege made in response to particular questions and after development of a more complete factual record.
The Court turns now to the common law. As a preliminary matter, the Court notes that, by contrast to the marital, attorney-client, and doctor-patient privileges, there is a relative lack of authority on the topic of minor children testifying against their parents, despite the likelihood that children, like spouses, probably present some of the most fertile sources of incriminating evidence. The Court believes that the paucity of authority on this topic may reflect a deep-seated sense of respect for the family on the part of state and federal prosecutors. It may also be that the reluctance of prosecutors to subpoena parents and minor children to testify against each other is, in reality, a reflection of the common law in action, whereby prosecutors presume that such testimony would be subject to some sort of parent-child privilege.
Traditionally, there was no parent-child privilege at common law. See, e.g., John Doe, 842 F.2d at 246; United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir.1985). However, only one federal court of appeals has clearly ruled on the precise issue of whether a minor, unemancipated child can be compelled to testify before a grand jury regarding communications made by a parent with whom the child resides. In In re Grand Jury Proceedings of John Doe, 842 F.2d 244 (10th Cir.1988), the Tenth Circuit affirmed a civil contempt order entered when a fifteen-year-old boy refused to testify before the
Three other circuit courts may have ruled on this issue although the cases do not explicitly reveal the full factual context in which the finding of no privilege was made. In In re Grand Jury Subpoena of Santarelli, 740 F.2d 816 (11th Cir.1984) (per curiam), for example, the Eleventh Circuit ruled that a son had properly been held in civil contempt because there was no parent-child privilege that would prevent a witness from answering questions before a grand jury about his father. The Santarelli court, however, never discussed the age of the child or any other circumstances, such as the nature of the parent-child relationship, the particular communications at issue, or the family's living arrangements. See also Port, 764 F.2d at 430-32 (finding no constitutional basis that would preclude testimony of parents regarding their son but not discussing factual circumstances); In re Matthews, 714 F.2d 223 (2d Cir.1983) (rejecting arguments in favor of creating an "in-law" privilege); In re Grand Jury (Starr), 647 F.2d 511 (5th Cir.1981) (per curiam) (affirming civil contempt order punishing daughter who refused to give testimony against her mother but not revealing the age of the daughter, living situation, or other factual details).
Many more federal courts of appeals have ruled on this question in the context of parent-child relationships that involve emancipated children. Significantly, three appeals courts have dealt with such children but made clear that their holdings might have been different if the facts before them involved minor children. In United States v. Erato, 2 F.3d 11, 16 (2d Cir.1993), the Second Circuit ruled that there was no parent-child privilege that would preclude the testimony of the eighty-year-old mother of a fifty-two-year-old being investigated for fraud. The court, nevertheless, stated:
Id. at 16 (emphasis added).
Similarly, in United States v. Jones, 683 F.2d 817 (4th Cir.1982), the Fourth Circuit held that there was no familial privilege that could be asserted by a son to avoid giving incriminating testimony in federal court about his father. The court relied, in part, on the fact that the son was "an emancipated adult, not an impressionable very young child," stating:
Id. at 819 (citations omitted and emphasis added).
Likewise, in Ismail, 756 F.2d at 1258, the Sixth Circuit concluded that there was no parent-child privilege that would prevent the defendant's son from testifying against his father where the son was thirty years old, lived in a country different from his father, and had already testified during the grand jury's investigation of his father. The court stated:
756 F.2d at 1258.
As revealed by the above-quoted language from the Second, Fourth, and Seventh Circuits, federal courts have been loath to create a blanket rule either recognizing or refuting a parent-child privilege. Instead, the analysis has been conducted on a case-by-case basis, with room left for the development of a narrowly tailored privilege. Because the Court concludes there is no blanket prohibition against a parent-child privilege, it moves on to consider whether common law leaves room for creation of a restricted parent-child privilege.
Fed.R.Evid. 501 authorizes the Court to define new privileges by interpreting "common law principles ... in the light of reason and experience." Jaffee v. Redmond, ___ U.S. ___, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (federal common law recognizes psychotherapist-patient privilege); Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (foundations and history of the spousal adverse testimony disqualification no longer justify full disqualification of a witness-spouse where one spouse voluntarily agrees to testify against the other).
Jaffee, ___ U.S. at ___ - ___, 116 S.Ct. at 1927-28 (citations, internal quotations, and footnote omitted). See also Trammel, 445 U.S. at 47, 100 S.Ct. at 911 ("Congress manifested an affirmative intention not to freeze the law on privilege. Its purpose was to provide the courts with the flexibility to develop rules of privilege on a case-by-case basis.") (citation and internal quotation omitted).
Jaffee provides a framework for determining whether a previously unrecognized privilege should be recognized. This framework begins 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." Jaffee, ___ U.S. at ___, 116 S.Ct. at 1928 (citation and internal quotations omitted). Guided by "reason and experience," the Court may recognize exceptions to this general rule where there is a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth," and where the privilege serves public ends. Id. at ___ - ___, 116 S.Ct. at 1928-29 (citation and internal quotations omitted).
Several additional principles should be borne in mind while conducting this analysis. First, the Court is not bound to consider only judicially created "common-law rulings" as the source of new privileges and may also look to policy determinations made by state legislatures as reflecting both reason and experience. Id. at ___, 116 S.Ct. at 1929; Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). In the absence of a Congressionally mandated policy on this specific issue, it is the duty of the Court, "if it possess the power, to decide it in accordance with present-day standards of wisdom and justice," rejecting, where necessary, any "outworn and antiquated rule[s] of the past." Funk, 290 U.S. at 382, 54 S.Ct. at 215.
Second, in recognizing new privileges, the Court should be mindful of the value of creating rules that lead to predictable results.
Id. (citations and internal quotations omitted).
Third, in developing new privileges, it is not necessary to define with precision the limits of the privilege. In Jaffee, the Supreme Court recognized the existence of a psychotherapist-patient privilege but declined to define the privilege with any greater certainty than to say that it applied under the facts of that case. The Court explained:
Id. at ___, 116 S.Ct. at 1932 (citation and internal quotation omitted).
Thus, mindful of the presumption against recognizing new privileges and guided by "reason and experience," the Court must analyze whether a parent-child privilege should be recognized because there is a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth," which also serves public ends. Id. at ___ - ___, 116 S.Ct. at 1928-29 (citation and internal quotations omitted). The Court finds it does.
Both reason and experience mandate the recognition of some form of a parent-child privilege. By way of analogy, the Court notes that confidential communications have been afforded waivable, privileged status in the context of relations between, inter alia, attorneys and clients, husbands and wives, priests and penitents, doctors and patients, rape crisis counselors and victims, reporters and sources and, most recently, psychotherapists and their clients.
Trammel, 445 U.S. at 51, 100 S.Ct. at 913.
Like these privileges, the parent-child relationship will often be "rooted in the imperative need for confidence and trust." Trammel, 445 U.S. at 51, 100 S.Ct. at 913. As with spousal relationships, reason and experience dictate that parents and children share a unique relationship, in which the ability to communicate in confidence without the fear of betrayal will often be the very foundation of the relationship. As with the relationship between spouses, some such relationships will be rich in confidential communications, while others will not. Likewise, as with spousal relationships, the nature and history of the relationship, as well as external circumstances, will likely affect the number and extent of any such communications and should be considered in determining whether the exercise of a parent-child privilege is appropriate in any given case. In this Court's experience — as a judge, parent, child, and spouse — there is no meaningful distinction between the policy reasons behind the marital communications privilege and those behind a parent-child privilege. The same needs that are met by confessing to a priest, divulging fears and wrongdoings to a psychotherapist, or confiding in a spouse are present — and should be encouraged to be
Likewise, children should not be dissuaded from seeking guidance and support from parents during difficult times. Parents should not be discouraged from participating in their children's lives by sharing their joys and providing firm direction when that is needed. As many parents know, supervision of a child takes on many forms. At times it may include honest and forthright discussion. At other times it may take the form of cross-examination to discover, punish, or correct wrongdoing by the child. Especially in light of this society's increasing concern with the weakening of the family structure, such communication and parental guidance should be encouraged, not discouraged, by the judiciary.
As stated, there is little case law directly dealing with whether an unemancipated minor, who lives with his or her parents, can be compelled to testify against them, or vice versa.
Further, a parent-child privilege is justified by a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth," which also serves public ends. Jaffee, ___ U.S. at ___ - ___, 116 S.Ct. at 1928-29 (citation and internal quotation omitted). As recognized by numerous courts, politicians, and the general public, the relationship of parent to child is one that should be fostered and encouraged. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) ("Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation's history and tradition."); Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977) ("the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promot[ing] a way of life through the instruction of children") (internal quotation omitted); Yoder, 406 U.S. at 232, 92 S.Ct. at 1541-42 ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.").
The Court is not dissuaded from recognizing a parent-child privilege by either of the Ninth Circuit cases that have discussed similar issues. See, e.g., In re Grand Jury Proceedings (Alba), No. 93-17014, 1993 WL 501539 (9th Cir. Dec. 2, 1993) (unpublished); Penn, 647 F.2d 876. In Penn, an en banc panel of the Ninth Circuit, split five to four in reversing a lower court's decision to suppress a jar of heroin taken from the defendant's backyard on the basis that it had been obtained in violation of due process when a police officer received it by paying the defendant's five-year-old son. The Ninth Circuit spoke in broad terms about how "very young children may aid criminal investigations; and sons may inform or testify against mothers," and at the end of its opinion, the court also considered nonconstitutional grounds advanced in support of affirming suppression. 647 F.2d at 880. It stated:
Id. at 884-85. Because this case dealt with a motion to suppress evidence rather than testimonial privileges, the above-quoted language is dicta.
Hence, the Court concludes that reason and experience, as well as the public interest, are best served by the recognition of some form of a parent-child privilege. Despite the Court's recognition of the existence of a parent-child privilege, however, the subpoena in this case is not quashed outright for two reasons (although the Court leaves open the possibility that objections might later be raised and heard on this ground). First, assuming that any judicially recognized privilege in the context of parent-child relations would be similar to the marital communications privilege,
The second reason for not quashing the subpoena outright is that the parties represented that the Unemancipated Minor Child was a target of the grand jury investigation, as were other people besides his father. Hence, the Unemancipated Minor Child might be questioned on topics not related to his communications with his father or asked
The Unemancipated Minor Child's Motion to Quash Subpoena
Second, a jointly held confidential communications privilege may be asserted by a parent or child when either is a party to any proceeding, including those before a grand jury. Id. at § 103. Exceptions to the privilege exist where the parent and child are opposing parties, jointly involved in criminal activity, or where the parent or child is a party in any criminal or juvenile proceeding, if the basis of the proceeding is alleged acts committed against the person or property of a family member. Id.