In the Matter of a Grand Jury Subpoena

• Decision Date: 20 January 2000
• Citation: 722 NE 2d 450,430 Mass. 590
• Parties: IN THE MATTER OF A GRAND JURY SUBPOENA (and a consolidated case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 590

722 NE 2d 450

IN THE MATTER OF A GRAND JURY SUBPOENA (and a consolidated case).

Supreme Judicial Court of Massachusetts, Suffolk.

September 14, 1999.

January 20, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Joseph J. Brodigan (Joseph Brodigan, Jr., with him) for a juvenile.

John C. Koslowsky for the parents.

Daniel Bennett for other parents.

Tracey A. Cusick, Assistant District Attorney (Jeanmarie Carroll, Assistant District Attorney, with her) for the Commonwealth.

John R. McDonald, Jr., for another juvenile, was present but did not argue.

IRELAND, J.

A single justice of this court has reserved and reported without decision the question whether we should create, on the basis of social policy considerations, a testimonial privilege for the parents of juveniles who have been subpoenaed to appear before a grand jury investigating the possible rape of another minor child by the juveniles.¹ Because we conclude that the Legislature, in the first instance, is the more appropriate body to weigh the relative social policies and address whether and how such a privilege should be created; because the Legislature has not, to date, considered whether to create such a privilege; and because this case involves a number of competing legislative policies regarding children and families which also must be balanced,² we decline to create a privilege for parents at this time and on these facts.

We summarize the stipulated facts. Two boys, one age fourteen years and seven months, and the other age fourteen years and eight months, were eighth grade students at the same school in Braintree at the relevant time. Both boys had lived with their parents since birth. On June 13, 1999, the father of a fellow student telephoned the home of one of the boys. He spoke with the boy's mother and told her that her son had been involved in the rape of his daughter earlier that day. The parents of both boys subsequently communicated with their sons relative to the incident. On June 14, the complainant's father met separately with each boy's father and discussed the incident. On June 15, the Braintree police initiated an investigation into the incident. On June 17, the Braintree police contacted the parents of one of the boys to ask whether their son would come to the police station to answer questions. The boy's parents stated that they wanted to get an attorney. That same day, both boys were arrested by the Braintree police as a result of the rape allegations. On June 18, the two boys were arraigned in the Quincy Division of the District Court Department on charges of rape, kidnapping, assault and battery, and assault and battery by means of a dangerous weapon.³

On June 22, the district attorney for the Norfolk district subpoenaed both boys' parents to testify before the grand jury investigating the incident. The assistant district attorney indicated that she might ask questions at the hearing about the substance of communications the boys had with their parents. The boys and their parents moved in the Superior Court to quash the subpoenas, asserting a "child-parent privilege." The Superior Court judge denied the motions, noting that no such privilege currently exists in the Commonwealth. The Superior Court judge stayed enforcement of the subpoenas, however, so the parties could seek relief pursuant to G. L. c. 211, § 3.⁴ On July 28, the single justice reserved and reported the consolidated cases for a determination by the full court.⁵ The petitioners now ask the court to recognize a testimonial privilege such that the parent of a minor child may not be compelled to testify, in criminal proceedings, as to "confidential communications" from the minor child to the parent.⁶ The Commonwealth counters that, if the requested parent-child privilege is to be created, the Legislature is the appropriate body to do so.

In Three Juveniles v. Commonwealth, 390 Mass. 357, 364 (1983) (Three Juveniles), noting that the creation of evidentiary privileges is most often left to the Legislature, we declined to create a testimonial disqualification for minor children subpoenaed to appear before a grand jury investigating the possible murder of a nonfamily member by their father, at least as to "what the children may have seen and heard in nonconfidential circumstances." Id. at 364. We concluded that "the Commonwealth's interest in obtaining all relevant information concerning ... [the crime charged] must predominate over generalizations favoring the preservation of the American family through barring a child from testifying about nonconfidential matters involving his or her parent." Id. Because it was not presented on the record, we declined to rule on the question of privilege as to confidential communications between parent and child, stating that "the question of a testimonial privilege as to such communications can be raised and dealt with in the specific circumstances presented [when the minors appear to testify]." Id. at 362 n.5.

Subsequent to our decision, the Legislature enacted a testimonial disqualification for minor children. See G. L. c. 233, § 20, Fourth, inserted by St. 1986, c. 145.⁷ The statute prohibits minor children from testifying in criminal proceedings against natural or adoptive parents with whom the child resides, except when the victim of the crime also lives in the household and is a member of the parent's family. See id. The statute was enacted after various amendments, revisions, and a public hearing date, and the privilege that thus emerged had the benefit of public debate during its creation and definition.

The course we followed in Three Juveniles left the creation and definition of a broad, intrafamily testimonial privilege to legislative determination. We did so for good reason, and conclude that we should adhere, in the first instance, to that course in this case.

As we stated in Three Juveniles, supra at 359, "[t]estimonial privileges `are exceptions to the general duty imposed on all people to testify.' Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982). Matter of Pappas, 358 Mass. 604, 607-609 (1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972). Such privileges diminish the evidence before the court (Commonwealth v. Corsetti, supra),

and contravene the fundamental principle that `the public ... has a right to every man's evidence.' United States v. Bryan, 339 U.S. 323, 331 (1950), quoting 8 J. Wigmore, Evidence § 2192, at 64 (3d ed. 1940)." Although we have the authority to create privileges, it is "a power that we have exercised sparingly, and `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.'" Babets v. Secretary of Human Servs., 403 Mass. 230, 234 (1988), quoting Three Juveniles, supra at 359-360. See Matter of Pappas, supra at 609 (court will create privilege only when harm done to society by suppression of evidence outweighed by "benefits to society in general accruing from the preservation of a confidential relationship"). The question we must answer, therefore, when deciding whether we should recognize the requested privilege, is "whether the privilege against adverse [parent-child] testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice." Three Juveniles, supra at 360.

The petitioners argue that creation of this privilege promotes sufficiently important interests, such as to outweigh the need for probative evidence, because it is necessary to preserve and protect the family. Not only is forcing parents to testify against their children repugnant to our society, they argue, but it also will cause a breakdown of trust in the home, ultimately discouraging parent-child communications. Although the preservation of family harmony and communication is a valuable social goal, and forced incrimination of a close relative may be uncomfortable, these feelings and beliefs alone do not necessarily require the creation of a testimonial privilege.

To our knowledge, only one appellate court, with the authority to create privileges,⁸ has considered whether a parent of an unemancipated minor child may be compelled to testify as to confidential communications received from that child, in the context of criminal proceedings against that child, and reached a conclusion that a privilege did exist.⁹ Other jurisdictions that have considered whether a parent-child privilege exists as to communications with adult children unanimously have rejected recognition of such a privilege, often expressing doubts about the privilege, or its absence, and its actual effect on parent-child communications, or have deferred to their respective Legislatures.¹⁰ And while commentators generally have favored creation of some such privilege, they have usually proposed legislative solutions, some of which vary widely in their scope and duration.¹¹

Deferring initially to the legislative process in this instance would accord with our general deference to the Legislature in the area of testimonial privileges. See Babets v. Secretary of Human Servs., supra at 234 (stating that we have "consistently concluded that the creation of such privileges ordinarily is better left to the Legislature"). See also Three Juveniles, supra at 360. Indeed, the vast majority of evidentiary privileges have been created by the Legislature. See Babets v. Secretary of Human Servs., supra at 235.¹² Furthermore, our deference to the Legislature on this privilege is particularly compelling because the decision whether to create the requested privilege necessarily depends on balancing vital, yet competing, social policies. Assuming that such a privilege would protect and promote family harmony and communication, this interest must be balanced against the...