Filed: Jun. 16, 2014
Latest Update: Mar. 02, 2020
Summary: FILED: June 17, 2014 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _ No. 13-4933 (1:13-cv-03058-JFM-1) _ UNDER SEAL Petitioner - Appellee v. UNITED STATES OF AMERICA Respondent - Appellant _ O R D E R _ The Court amends its opinion filed June 16, 2014, as follows: On page 2, third paragraph, line 1 – the word "Hartford" is corrected to read "Harford." For the Court-By Direction /s/ Patricia S. Connor, Clerk PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4933 UND
Summary: FILED: June 17, 2014 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _ No. 13-4933 (1:13-cv-03058-JFM-1) _ UNDER SEAL Petitioner - Appellee v. UNITED STATES OF AMERICA Respondent - Appellant _ O R D E R _ The Court amends its opinion filed June 16, 2014, as follows: On page 2, third paragraph, line 1 – the word "Hartford" is corrected to read "Harford." For the Court-By Direction /s/ Patricia S. Connor, Clerk PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4933 UNDE..
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FILED: June 17, 2014
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 13-4933
(1:13-cv-03058-JFM-1)
___________________
UNDER SEAL
Petitioner - Appellee
v.
UNITED STATES OF AMERICA
Respondent - Appellant
___________________
O R D E R
___________________
The Court amends its opinion filed June 16, 2014, as
follows:
On page 2, third paragraph, line 1 – the word "Hartford" is
corrected to read "Harford."
For the Court--By Direction
/s/ Patricia S. Connor, Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4933
UNDER SEAL,
Petitioner - Appellee,
v.
UNITED STATES OF AMERICA,
Respondent - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-03058-JFM-1)
Argued: May 15, 2014 Decided: June 16, 2014
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Wilkinson and Senior Judge Hamilton
joined.
ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellant. Peter Dennis Ward, LAW
OFFICE OF PETER D. WARD, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.
2
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”). 1 Doe Jr. moved to quash the
subpoena pursuant to Federal Rule of Criminal Procedure
17(c)(2), claiming that his testimony was shielded by a
purported parent-child privilege. The district court granted
the motion.
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.
I.
A.
On November 30, 2012, Harford County, Maryland
sheriff’s deputies responded to a 911 domestic assault complaint
1
In order to protect the confidentiality of the grand jury
proceedings, we refrain from referring to involved parties by
their proper names. See Fed. R. Crim. P. 6(e); In re Grand
Jury, John Doe No. G.J.2005-2, 478 F.3d 581, 583 n.1 (4th Cir.
2007).
3
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. 2 Doe Jr. now lives exclusively with Mr. Doe, who helps
to pay for his college education and supports him financially.
Doe Jr. also testified that he has an aunt who helps with his
college bills, and if she did not, he “would not have been able
to go to college this year.” Id. at 37.
B.
The Government began investigating the events of
November 30, 2012, and referred the case to a grand jury for
2
Citations to the “J.A.” refer to the Joint Appendix filed
under seal by the parties in this appeal.
4
possible prosecution pursuant to 26 U.S.C. § 5861(d). 3 On
October 10, 2013, the Government subpoenaed Doe Jr. “to
determine the ownership of the illegal guns” found at the Doe
home. Appellant’s Br. 4.
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:
In a case like this, where the Government
seeks to solidify a criminal case against the
father by compelling the child’s testimony,
the necessary conclusion on the child’s part
will be that he, [Doe Jr.], is responsible
for his father’s prosecution. The damage to
the father-son relationship is, under these
circumstances, as certain as it is
incalculable.
Id. at 10.
On October 16, 2013, the district court held a hearing
on the motion to quash, at which Doe Jr. -- at that time 19
years old -- testified. The following exchange occurred:
3
“It shall be unlawful for any person . . . to receive or
possess a firearm which is not registered to him in the National
Firearms Registration and Transfer Record.” 26 U.S.C.
§ 5861(d).
5
[THE GOVERNMENT]: [I]f you testify
truthfully . . . are you saying that your
dad . . . would not cut you off?
[DOE JR.]: Yeah.
Q: He would cut you off?
A: No.
Q: He would not cut you off. Would he hold
it against you?
A: Would he hold it against me? No.
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. 4
4
In its response to Doe Jr.’s motion to quash, the
Government stated, “[t]here is no basis to believe [Doe Jr.] is
a target for the federal firearms offenses. Further, no
information has been provided linking him to the illegal
(Continued)
6
The district court granted the motion to quash from
the bench, explaining, in part,
The fact of the matter is, based upon the
testimony as I have heard it, there is a
continuing relationship between [Doe Jr.]
and his dad. [Doe. Jr.]’s age is certainly
not as old as some of the people in the
other cases. I’m not sure quite how age
cuts. If I had a very young person, I would
be concerned about abuse. And there is a
potential for abuse in this situation. With
[Doe] Jr., if he were to testify, despite
what he knew about his father’s perception,
certainly there would be a[n] incentive for
the father to cut him off now. And if the
father is convicted, then a source of income
is cut off, so [Doe] Jr., might not be able
to continue in college as he is now doing,
nor have his necessities provided for.
But . . . in the final analysis it has to do
with one’s perception of the proper role of
government.
. . .
[O]ne must be concerned about the
intersection of government and individual
privacy rights. And . . . the government
has every reason to be concerned here. And
I’m not suggesting in any way that they’re
being motivated improperly by seeking this
testimony. But I think the privilege does
exist. It must be . . . considered on a
case-by-case basis.
weapons.” J.A. 24. Nonetheless, Appellee expressed concern
regarding his own prosecution, and a proffer session was
scheduled for October 11, 2013. The Government offered Doe Jr.
limited use immunity; however, Doe Jr. rejected this offer,
canceled the proffer session, and filed the instant motion.
7
Hearing the evidence before me, I think that
the relationship between [Doe Jr.] and his
father does create the privilege. And [Doe
Jr.] does not have to testify in the grand
jury. I’m not -- despite what I’ve said,
I’m not being critical of the government.
I’m very suspicious about the relationship,
of the possession of the automatic weapons
and the growing of marijuana in pots in the
basement. But I don’t think that my
suspicions about that provide an adequate
reason for me to say that the government’s
and society’s interests trump those
constitutional -- the privacy rights of
[Doe] Jr.
So I find the privilege exists and grant the
motion to quash.
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.”).
II.
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).
8
III.
A.
1.
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 (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
(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 common-
law privileges, and modify existing ones, in appropriate cases.”
United States v. Sterling,
724 F.3d 482, 501 (4th Cir. 2013).
9
In Trammel, however, the Supreme Court cautioned,
[t]estimonial exclusionary rules and
privileges contravene the fundamental
principle that the public has a right to
every man’s evidence. As such, they must be
strictly construed and accepted 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.
445 U.S. at 50-51 (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.”). 5
5
We pause at the outset to observe that new privileges are
perhaps most aptly created via the legislative process. In an
ever-changing world, we should be “circumspect about creating
new privileges based upon perceived public policy
considerations.” In re Grand Jury, 103 F.3d 1140, 1154 (3d Cir.
1997); see also Branzburg v. Hayes,
408 U.S. 665, 706 (1972)
(plurality) (suggesting that courts should yield to legislatures
in fashioning privileges). Leaving this task to the legislative
branch would also allow for the privilege to be more precisely
defined. See In re Grand
Jury, 103 F.3d at 1157 (“If a new
privilege were to be engraved in the concrete of our
jurisprudence . . . , then it should be framed so that its
contours are clear and unambiguous[.]”); see also Upjohn Co. v.
United States,
449 U.S. 383, 393 (1981) (“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.”).
10
2.
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
11
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,
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, in the
Ninth Amendment, or in the concept of
“liberty” that is derived from the
Fourteenth Amendment. This right extends
only to “matters so fundamentally affecting
a person as the decision whether to bear or
beget a child.” Thus, the Supreme Court
found that this right of privacy encompasses
such private familial activities as
marriage, procreation, contraception, and
child rearing and education.
12
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, are best served by the recognition of some form of a
parent-child privilege.”
Id. at 1497. 6
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
6
New York state courts have recognized a privilege against
divulging private familial communications, with emphasis on the
privacy of the family unit. See, e.g., In re A & M, 61 A.D.2d
426, 433 (N.Y. App. Div. 1978) (recognizing the need to protect
and foster open communication between children and parents, and
stating, “If we accept the proposition that the fostering of a
confidential parent-child relationship is necessary to the
child’s development of a positive system of values, and results
in an ultimate good to society as a whole, there can be no doubt
what the effect on that relationship would be if the State could
compel parents to disclose information given to them in the
context of that confidential setting.”); People v. Fitzgerald,
422 N.Y.S.2d 309, 312 (N.Y. Cnty. Ct. 1979) (“[A] parent-child
privilege does exist in this State, flowing directly from such
rights as are granted by both the Federal and New York State
Constitutions, U.S. Constitution, Amendments 9 and 14, New York
State Constitution, Art. 1 § 6, § 1, which have fostered the
recognition of what has come to be known as the ‘right to
privacy.’”).
13
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
14
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 at trial); In re Grand Jury Subpoena of Santarelli,
740
F.2d 816, 817 (11th Cir. 1984) (per curiam) (declining to adopt
privilege where son did not want to testify against his father);
In re Grand Jury Proceedings (Starr),
647 F.2d 511, 513 (5th
Cir. 1981) (per curiam) (rejecting parent-child privilege where
daughter refused to testify about her mother and step-father’s
alleged involvement in a homicide); United States v. Penn,
647
F.2d 876, 885 (9th Cir. 1980) (en banc) (declining to adopt the
parent-child privilege to suppress a jar of heroin, where police
15
bribed a five-year-old boy to show them where his mother had
hidden the heroin, and he did so).
3.
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 148 F.2d at 818-19.
However, we limited the holding as such:
Jones is an emancipated adult, not an
impressionable very young child. . . .
Under the circumstances, namely an
emancipated, adult child’s testimony which
only arguably would be adverse to his
father, limited to questions unrelated to
his familial association with his parent,
and involving no communication between
father and son, we are satisfied that there
simply is no privilege such as Jones has
asserted.
Whether, in changed factual circumstances,
the presence of other considerations would
make a difference we, of course, have no
occasion to consider and do not now address.
In particular, we do not endeavor to decide
to what extent the age of the child and
whether or not emancipation has occurred may
or may not affect the decision as to whether
any familial privilege exists.
Id. at 819 (citation omitted).
16
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,
This circuit has never recognized a parent-
child testimonial privilege. . . . This
case does not present the circumstances
through which to address whether to
recognize a parent-child testimonial
privilege for minor children. Dunford was
charged with illegally possessing guns in
circumstances where he was abusing his
children and placing them at risk with those
guns. This is not the beneficial family
unit that history has celebrated, and this
is not the relationship which Dunford argues
in principle should remain protected.
Dunford, 148 F.3d at 391.
As in Jones, however, the Dunford court also left room
for adoption of the privilege under certain circumstances:
17
There may be much to commend a testimonial
privilege in connection with the testimony
of or against a minor child to preserve the
family unit which is so much under stress in
today’s society. The tangible and
intangible benefits of keeping families
intact often seem to be forgotten in today’s
willingness to enact laws that readily
authorize the fracture of the family or that
provide incentives for doing so. In
Trammel, the Court observed that casting
aside a privilege that affects “marriage,
home, and family relationships -- already
subject to much erosion in our day --
counsels caution.” 445 U.S. at 48. But
even if such a privilege were to be
recognized, it would have to be narrowly
defined and would have obvious limits,
perhaps such as where the family fractures
itself or the child waives the privilege or
where ongoing criminal activity would be
shielded by assertion of the privilege.
Dunford, 148 F.3d at 391 (internal citation and alteration
omitted).
B.
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.
18
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
19
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.
Moreover, courts have acknowledged time and again the
fundamental principle that the public has a right to “every
man’s evidence,” Trammel, 445 U.S. at 50 (internal quotation
marks omitted), and in this case, there is no good reason to
thwart that right. Doe Jr. was the only individual living in
the Doe household at the time of the 911 call who is available
to testify, save the two minor Doe children. Thus, the “sought-
after testimony is of demonstrated relevancy to the grand jury’s
investigation.” United States v. Under Seal,
714 F.2d 347, 350
(4th Cir. 1983). Creating a parent-child privilege in this case
would therefore discount the Supreme Court’s admonishment that
only limited exceptions should trump “the normally predominant
20
principle of utilizing all rational means for ascertaining
truth.” Jaffee, 518 U.S. at 9 (internal quotation marks
omitted); see also United States v. Nixon,
418 U.S. 683, 710
(1974) (“[E]xceptions to the demand for every man’s evidence are
not lightly created nor expansively construed, for they are in
derogation of the search for truth.”).
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. 7 Moreover, the
home in which she and Mr. Doe were raising two minor children
contained automatic weapons and numerous other firearms, and
there were illegal drugs growing in the basement. As the
district court itself recognized, “[t]he possession of the
automatic firearms, and the presence of marijuana growing in the
basement in 5 gallon pots certainly gives the government reason
to be concerned.” J.A. 54.
Under these circumstances, Doe Jr. has not provided a
strong showing that adoption of the parent-child privilege would
7
At the district court hearing, the Government also read a
letter from Mrs. Doe alleging that Mr. Doe abused her while she
was pregnant with Doe Jr.’s younger sister in 1996. Doe Jr.
denied that this abuse occurred.
21
“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).
IV.
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
22
