THACKER, Circuit Judge:
During the course of a grand jury investigation, the Government subpoenaed a 19-year-old man ("Doe Jr." or "Appellee") to testify with regard to potential federal charges against his father ("Mr. Doe").
No federal appellate court has recognized a parent-child privilege, and we decline to do so here. As explained more fully below, Doe Jr. has not made a strong showing of need for the parent-child privilege, and "reason and experience" do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed.R.Evid. 501. Therefore, we reverse and remand for further proceedings.
On November 30, 2012, Harford County, Maryland sheriff's deputies responded to a 911 domestic assault complaint from Doe Jr.'s mother ("Mrs. Doe"). At this time, 18-year-old Doe Jr. lived in the house with his parents and two minor siblings. The deputies arrived and conducted a search. They seized approximately 40 firearms, including two assault-style rifles, a WWII-style pistol, a loaded semi-automatic handgun, and an AK-47 assault rifle; equipment used to alter and convert firearms (i.e., torches, welding equipment, and saws); and in the basement, marijuana plants growing in five-gallon buckets and drug paraphernalia.
Domestic abuse charges were filed against Mr. Doe, but Mrs. Doe later dropped them. Mr. and Mrs. Doe thereafter separated, and Doe Jr. moved in with his father because he claims he was "was kicked out of the house by [his] mother." J.A. 34.
The Government began investigating the events of November 30, 2012, and referred the case to a grand jury for possible prosecution pursuant to 26 U.S.C. § 5861(d).
Doe Jr. filed a motion to quash with the district court on October 15, 2013, explaining that he believed he was called upon to testify "as part of an ongoing investigation of federal criminal charges pending against his father." J.A. 6. He contends that enforcing the Government's subpoena would violate the parent-child privilege:
Id. at 10.
On October 16, 2013, the district court held a hearing on the motion to quash, at
J.A. 38. Nonetheless, Doe Jr. said that he had significant anxiety about testifying against his father, and provided doctors' notes to that effect.
At the district court hearing, the Government argued that there would be "no negative ramifications" resulting from Doe Jr. testifying. J.A. 50. Because Mrs. Doe had invoked her spousal privilege and the Government did not intend to call the two minor Doe children as witnesses, the Government asserted it needed Doe Jr.'s testimony to "fully explore all the evidence in this case to do a complete and thorough investigation." Id. The Government noted, "there is a chance that there were other people in the house besides [Mr. Doe] that might be responsible for the[] automatic weapons." Id. at 48.
The district court granted the motion to quash from the bench, explaining, in part,
J.A. 54-56.
The Government filed a timely notice of appeal. We possess jurisdiction pursuant to 18 U.S.C. § 3731. See In re Grand Jury, John Doe No. G.J. 2005-2, 478 F.3d 581, 584 (4th Cir.2007) ("This court has jurisdiction to review a district court order quashing a subpoena pursuant to 18 U.S.C. § 3731.").
This court reviews the district court's quash of a grand jury subpoena for abuse of discretion. See In re Grand Jury, John Doe No. G.J. 2005-2, 478 F.3d 581, 584 (4th Cir.2007). However, "[w]hether to recognize a privilege under Federal Rule of Evidence 501 is a mixed question of law and fact, which we review de novo." Virmani v. Novant Health Inc., 259 F.3d 284, 286-87 (4th Cir.2001).
Federal Rule of Evidence 501 provides, "[t]he common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: [] the United States Constitution, [] a federal statute; or [] rules prescribed by the Supreme Court." Fed.R.Evid. 501 (hereinafter, "Rule 501") (emphasis supplied). Rule 501 allows for "recognition of a privilege based on a confidential relationship ... on a case-by-case basis." Jaffee v. Redmond, 518 U.S. 1, 8, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (recognizing psychotherapist-patient privilege under the "reason and experience" clause of Rule 501) (internal quotations marks omitted); see also Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) ("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, and to leave the door open to change.") (internal citation and quotation marks omitted). Rule 501, therefore, "leaves the door open for courts to adopt new commonlaw privileges, and modify existing ones, in appropriate cases." United States v. Sterling, 724 F.3d 482, 501 (4th Cir.2013).
In Trammel, however, the Supreme Court cautioned,
445 U.S. at 50-51, 100 S.Ct. 906 (internal quotation marks, citation, and alteration omitted); see also Sterling, 724 F.3d at 502 ("As the Supreme Court made clear in Jaffee, the federal courts' latitude for adopting evidentiary privileges under Rule 501 remains quite narrow indeed.").
Only a very small handful of federal district courts in this country have recognized the parent-child privilege. The District of Nevada created the privilege where a minor child was issued a subpoena to offer grand jury testimony against his father. See In re Agosto, 553 F.Supp. 1298, 1299 (D.Nev.1983). The court concluded that the "parent-child privilege ... is based not only on the confidential nature of specific communications between parent and child, but also upon the privacy which is a constitutionally protectable interest of the family in American society." Id. at 1325. The court also reasoned, "the parent-child relationship exhibits similarities not only to the spousal relationship, which is based upon love and affection, but to the psychotherapist-patient relationship, which is based upon the guidance and `listening ear' which one party to the relationship provides to the other party." Id. Of note, the continued vitality of Agosto is questionable. See In re Grand Jury Proceedings (Alba), No. 93-17014, 1993 WL 501539 at *1 n. 1 (9th Cir., Dec. 2, 1993) (per curiam) ("The holding in Agosto is contrary to our decision in [United States v.] Penn[, 647 F.2d 876, 885 (9th Cir.1980) (en banc)], and contrary to the overwhelming weight of case law from other circuits that also reject the concept of a family privilege."); see also Penn, 647 F.2d at 885 ("There is no judicially or legislatively recognized general `family' privilege, and we decline to create one here." (citations omitted)).
The District of Connecticut has recognized a parent-child privilege based on the First Amendment free exercise clause. See In re Grand Jury Proceedings (Greenberg), 1982 WL 597412, at *6 (D.Conn. June 25, 1982) (finding First Amendment basis for the parent-child privilege between a Jewish mother and daughter, explaining, "[t]he asserted parent-child privilege is available to Mrs. Greenberg, though only insofar as it rests on her religious conviction that she cannot testify against her [adult] daughter willingly or under legal compulsion.").
Finally, the Eastern District of Washington has "recog[nized] the existence of a parent-child privilege." In re Grand Jury Proceedings, Unemancipated Minor Child, 949 F.Supp. 1487, 1497 (E.D.Wash. 1996). That court explained,
Id. at 1489 (footnotes with citations omitted). Although the court did not ultimately adopt the privilege in that particular case, it concluded that, based on the aforementioned privacy interests, "reason and experience, as well as the public interest,
These decisions have compared the parent-child privilege to other privileges. See, e.g., Agosto, 553 F.Supp. at 1307 (noting the importance of the attorney-client relationship in "the administration of justice" such that the "confidential nature of the relationship is ... worthy of protection," and explaining, "the confidentiality inherent in certain properly functioning human relationships is also an important goal for society to recognize and protect."); id. at 1325 ("There is no reasonable basis for extending a testimonial privilege for confidential communications to spouses, who enjoy a dissoluble legal contract, while yet denying a parent or child the right to claim such a privilege to protect communications made within an indissoluble family unit[.]"); In re Grand Jury Proceedings, 949 F.Supp. at 1494 ("As with spousal relationships, reason and experience dictate that parents and children share a unique relationship.").
In contrast, every federal appellate court that has considered adoption of the parent-child privilege — including our own — has rejected it. See, e.g., United States v. Dunford, 148 F.3d 385, 391 (4th Cir.1998) (declining to adopt the privilege where minor children were compelled to testify at their father's trial, because the father abused the children and placed them at risk with illegal firearms); In re Grand Jury, 103 F.3d 1140, 1146-47 (3d Cir.1997) (appeals from three cases, one involving an adult whose father was called upon to testify against him, and the other two involving a minor child who was called upon to testify against her father — the court found that, as to both cases, no privilege existed); In re Erato, 2 F.3d 11, 16 (2d Cir.1993) ("We see no basis for recognizing in federal law a new privilege that would permit a mother to assert a parent-child privilege to avoid testifying against her adult son regarding transactions in which she appears to have benefited from her son's allegedly criminal activity[.]"); Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244, 245-48 (10th Cir.1988) (holding that compelling a 15-year-old Mormon to testify against his mother and other family members did not violate his First Amendment rights, given the government's interest in investigating federal crimes); United States v. Davies, 768 F.2d 893, 899 (7th Cir.1985) (declining to adopt the privilege where a teenage girl provided a phone number to law enforcement, which led officers to her father's apartment, allowing them to begin surveillance of her father); United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir.1985) (declining to adopt the privilege where the Government subpoenaed a 30-year-old emancipated son to testify against his father
In our own cases of United States v. Jones, 683 F.2d 817 (4th Cir.1982), and Dunford, 148 F.3d 385, we declined to recognize a parent-child privilege, but stopped short of issuing a blanket rejection of the privilege.
In Jones, we declined to adopt the privilege where the Government subpoenaed a 29-year-old man to testify against his father during grand jury proceedings. See 683 F.2d at 818-19. However, we limited the holding as such:
Id. at 819 (citation omitted).
In Dunford, the defendant, a father of two minor daughters, was convicted of fourteen counts of illegally possessing firearms and ammunition. See 148 F.3d at 387. At his trial, a witness testified that Dunford abused his daughters by, in one instance, placing a gun to his daughter's head and threatening to kill her, and in another instance, kicking his daughter in the ribs and hitting her in the eye, causing a bruise. But when the Government called Dunford's daughters to testify against him, they both denied that this abuse occurred.
Nonetheless, after his conviction, Dunford appealed, arguing that by allowing his daughters to testify against him, the district court violated his parent-child testimonial privilege. See Dunford, 148 F.3d at 390. We rejected this argument, explaining,
Dunford, 148 F.3d at 391.
As in Jones, however, the Dunford court also left room for adoption of the privilege under certain circumstances:
Dunford, 148 F.3d at 391 (internal citation and alteration omitted).
Considering the legal landscape set forth above, we conclude the district court erred in creating a parent-child privilege in this case. As one of our sister circuits has explained, we should create a new privilege "only after careful consideration in the face of a strong showing of need for the privilege." In re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir.1990). There is no such showing here.
First, Doe Jr. is "not an impressionable very young child," but an adult college student. Jones, 683 F.2d at 819. And although Mr. Doe provides Doe Jr.'s room and board, buys his clothing, and "contributes a substantial amount" to his college tuition, Doe Jr. himself acknowledged that Mr. Doe would not "cut [him] off" or "hold it against [him]" if Doe Jr. testified truthfully. J.A. 37-38; see also id. at 37 (The Court: "Has your father threatened to cut off his aid to you if you testify?" Doe Jr.: "Absolutely not."). Nor does Doe Jr. rely solely upon Mr. Doe for support for his schooling. See id. at 37 ("My aunt helped with the college as well. Otherwise, I would not have been able to go to college this year.").
Further, because the Government simply seeks to determine the ownership of the firearms found at the Doe residence, we cannot say with certainty that Doe Jr.'s potential testimony would be of a nature that would damage the father-son relationship, or that creating the privilege will promote the privacy interests a parent-child privilege is meant to protect. Indeed, as the Government explained at the district court hearing, "[T]here is a chance that there were other people in the house besides [Mr. Doe] that might be responsible for the[] automatic weapons." J.A. 48. See Jones, 683 F.2d at 819 (declining to adopt the parent-child testimonial privilege where the evidence to be gathered would "only arguably ... be adverse to his father, limited to questions unrelated to his familial association with his parent, and involv[e] no communication between father and son" (emphasis supplied)); In re Grand Jury Proceedings, 949 F.Supp. at 1497 (parent-child testimonial privilege did not apply because minor child did not "show[] how, or to what extent, his testimony would require revelation of actions or communications that would be adverse to his father's interests"); cf. Sterling, 724 F.3d at 502 (noting that for any privilege to arise, "`the communications [sought] must originate in a confidence that they will not be disclosed'" (quoting 1 McCormick on Evidence § 72 n. 7 (Kenneth S. Broun ed., 7th ed.2013) (alteration omitted))). Therefore, the possibility of injury to the harmonious relationship between Doe Jr. and Mr. Doe is slight to nil.
Finally, we do not believe the purported purpose of the parent-child privilege would be duly served by shielding Doe Jr. from testifying about the firearms seized on November 30, 2012. In her 911 call that spurred the Government's investigation, Mrs. Doe alleged spousal abuse.
Under these circumstances, Doe Jr. has not provided a strong showing that adoption of the parent-child privilege would "promote[] sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice." Jones, 683 F.2d at 819 (quoting Trammel, 445 U.S. at 51, 100 S.Ct. 906).
For the foregoing reasons, the district court erred in adopting the parent-child privilege and excusing Doe Jr. from testifying before the grand jury. We reverse and remand.
REVERSED AND REMANDED.