1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

---------- 

No. 95-7354 

----------- 

 IN RE: GRAND JURY 

----------- 

 On Appeal from the District Court 

 of the Virgin Islands 

(St. Croix) 

 (D.C. Civil No. 95-00009) 

 

---------- 

 Argued Tuesday, April 16, 1996 

at St. Thomas, Virgin Islands 

 BEFORE: MANSMANN, SAROKIN*

and GARTH, Circuit Judges

 Reargued Monday, October 7, 1996 

at Philadelphia, Pennsylvania 

 BEFORE: MANSMANN, GREENBERG 

and GARTH, Circuit Judges

 Gordon C. Rhea (Argued) 

 Alkon, Rhea & Hart 

 2115 Queen Street 

 Christiansted, St. Croix 

 USVI, 00820 

 Attorneys for Appellant

 in Appeal No. 95-7354 

 James A. Hurd, Jr. 

 Azekah E. Jennings 

 Office of United States Attorney 

 1108 King Street, Suite 201 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00820 

 

*Judge Sarokin retired from office prior to the filing of our opinion. 
2

 

 David S. Kris (Argued) 

 United States Department of Justice 

 Criminal Division 

 P.O. Box 899 

 Ben Franklin Station 

 Washington, D.C. 20044-0899 

 

 Attorneys for Appellee 

 in Appeal No. 95-7354

---------- 

 Nos. 96-7529/7530 

---------- 

IMPOUNDED 

---------- 

 On Appeal from the United States District Court 

 for the District of the Delaware 

 (D.C. Civil No. 96-51) 

---------- 

 Argued Monday, October 7, 1996 

 at Philadelphia, Pennsylvania 

 BEFORE: MANSMANN, GREENBERG 

and GARTH, Circuit Judges

 

 Charles M. Oberly, III 

 Kathleen M. Jennings 

 Oberly, Jennings & Drexler 

 800 Delaware Avenue 

 P.O. Box 2054 

 Wilmington, Delaware 19899 

 Bartholomew J. Dalton (Argued) 

 Brandt & Dalton 

 3 Mill Road 

 P.O. Box 2307 

 Wilmington, Delaware 19899 

 Attorneys for Appellant

 John Doe 1 in Appeal No. 96-7529
3

 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 
4

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. 
5

 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. 
6

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. 
7

 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. 
8

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. 
9

 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 
10

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 "threepronged 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. 
11

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 
12

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. 
13

 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
14

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 ParentChild 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 
15

 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. 
16

 (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 PARENTCHILD 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). 
17

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 
18

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). 
19

 2.State Courts Have Overwhelmingly Rejected the Privilege.

 The overwhelming majority of state courts, like their 

federal counterparts, have also declined to recognize a commonlaw 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 
20

 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. Massachusetts, 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). 
21

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. 
22

 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 parentchild 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 privilege 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 
23

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 workproduct 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 highlevel advisors); Couch v. United States, 409 U.S. 322, 335 (1973) 

(rejecting an accountant-client testimonial privilege). 
24

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 
25

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 determining whether a particular privilege "'promotes sufficiently 

important interests to outweigh the need for probative evidence,'" Id. (quoting Trammel, 445 U.S. at 51), must be guided 

by "reason and experience." Specifically, the Jaffee Court instructed 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 
26

states had enacted some form of a psychotherapist privilege. Id.

at 1929 & n.11 (listing state statutes). The Jaffee Court explained 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 parentchild 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 supports the opposite conclusion: "reason and experience" dictate 

that federal courts should refuse to recognize a privilege 

rejected by the vast majority of jurisdictions. 
27

 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 psychotherapist-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 
28

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 illadvised. 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 clergycommunicant 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 anticipation 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). 
29

 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 
30

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 
31

 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 recognizes 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). 
32

parishioners would also be aware that their confidential conversations are protected from compelled disclosure.21

 Moreover, even assuming arguendo that children and 

their parents generally are aware of whether or not their communications 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. 
33

 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 outweighed 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 
34

transcends the value of effective and efficient judicial truthfinding. 

 An even more compelling reason for rejecting a parentchild 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 
35

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 psychotherapistpatient 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 
36

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 psychotherapist 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. 
37

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 parentchild 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. 
38

 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 parentchild 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). 
39

 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. Congress specifically addressed that subject when it delegated rulemaking authority to the Supreme Court as to rules of procedure 

and evidence. It did so by identifying and designating the law 
40

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 
41

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 
42

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 minitrial - 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 jointlyheld 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. 
43

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 twoway 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 parentchild privilege is the fact that the "strong and trusting parentchild 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. 
44

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 
45

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 
46

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." 
47

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). 
48

 The courts, however, federal and state, have been reluctant to 

make these policy arguments the foundation for a "new" privilege. 

 In the circumstances presented here, I do not share that 

reluctance and am convinced that where compelled testimony by a 

parent concerns confidential statements made to the parent by his 

child in the course of seeking parental advice and guidance, it 

is time to chart a new legal course. 

II. 

A. 

 Any inquiry concerning the federal court's extension of 

testimonial privilege necessarily begins with Rule 501 of the 

Federal Rules of Evidence.31 Under this Rule, as interpreted by 

the Supreme Court in United States v. Trammel, 445 U.S. 40, 47 

(1980), the federal courts are authorized to "develop[] . . . 

testimonial privileges in federal criminal trials governed by the 

 

31. Rule 501 states: 

Except as otherwise required by the Constitution of the 

United States or provided by Act of Congress, or in 

rules prescribed by the Supreme Court pursuant to 

statutory authority, the privilege of a witness, 

person, government, state, or political subdivision 

thereof shall be governed by the principle of the 

common law as they may be interpreted by the courts of 

the United States in the light of reason and 

experience. However, in civil actions and proceedings, 

with respect to an element of a claim or defense as to 

which state law supplies the rule of decision, the 

privilege of witness, person, government, state or 

political subdivision thereof shall be determined in 

accordance with state law. 
49

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 
50

(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. 
51

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 
52

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. 
53

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. 
54

 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 
55

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 parentchild 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). 
56

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 
57

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. 
58

 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). 
59

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. 
60

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 
61

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). 
62

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 crossexamination of her mother who had proposed to testify 

voluntarily"). 
63

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. 
64

narrowly circumscribed parent-child privilege. The interests 

involved in protecting the communications at issue here are far 

stronger than those involved in previous cases. Consequently, 

the result which I would reach is not as radical as it might 

initially appear. 

IV. 

 I am convinced that the public good to be derived from a 

circumscribed parent-child testimonial privilege outweighs the 

judicial system's interest in compelled parental testimony. I 

would, therefore, recognize a privilege which could be invoked by 

a parent and child together to bar compelled testimony concerning 

confidential communications made to that parent by his child in 

the course of seeking parental advice and guidance. I would 

reverse the district court's order in the Virgin Islands matter 

denying the motion to quash the grand jury subpoena. 
65

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. 
66

 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. 
67