Three Juveniles v. Com.

• Decision Date: 07 November 1983
• Citation: 455 N.E.2d 1203,390 Mass. 357
• Parties: THREE JUVENILES et al. 1 v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1203

455 N.E.2d 1203

390 Mass. 357

THREE JUVENILES et al. ¹ v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 5, 1983.

Decided Nov. 7, 1983.

Brian J. McMenimen, Boston (Constance L. Rudnick, Boston, with him), for plaintiffs.

Daniel J. O'Connell, III, Boston, for interveners.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

We are presented for the first time with the question whether a minor child may be compelled to appear and to testify, over the objection of both the child and the child's parents, before a grand jury that is investigating the possible murder of a nonfamily member by the child's father. We conclude that, in these circumstances, a minor child has no privilege to refuse to appear. Further, the child has no privilege to refuse to testify as to what he may have seen or heard, except perhaps as to confidential communications between the child and the parents, a question we need not decide on this record.

The plaintiffs, twelve, fourteen, and fifteen years of age, live with their parents. The children were subpoenaed to appear on April 4, 1983, to testify before a grand jury that is investigating the possible murder of a missing woman. The woman was an acquaintance of their father, and the investigation had focused on him. Neither the children nor their parents wish the children to appear or to testify. On April 4, the children moved to quash the subpoenas, claiming a family or parent-child privilege not to testify. A judge of the Superior Court denied the motion, but stayed the appearance of the children before the grand jury until April 14.

On April 13, the children filed a petition under G.L. c. 211, § 3, in the Supreme Judicial Court for the county of Suffolk seeking reversal of the denial of their motion. A single justice allowed the parents to intervene. The Commonwealth submitted an affidavit to the single justice in support of its contention that the children's expected testimony would be relevant to the grand jury investigation. The affidavit, which has been impounded, states in part that, "there is reason to believe that [the missing woman] was murdered on the evening of March 5 ... and that an examination by the Grand Jury of the above mentioned children ... as to their observations of the comings and goings of their parents and in particular [the father and the missing woman] during this critical period of time, as well as any conversations they may have witnessed between them could ... provide further evidence pertaining to her murder." The single justice further stayed the witnesses' appearances, and reserved and reported the case, without decision, for determination by the full court, presenting three questions for our consideration.

The case was argued before the full bench on May 5, 1983, and on August 4, 1983, we issued an order which is set forth in the margin. ² We concluded that (1) the motion judge properly denied the children's motion to quash the subpoena; (2) the children had no constitutional or other right not to appear and testify before the grand jury, leaving open, however, the question of their obligation to testify concerning confidential communications with their parents; and (3) the parents had no constitutional or other right, alone or in conjunction with their children, to prevent their children from appearing and testifying.

Testimonial privileges "are exceptions to the general duty imposed on all people to testify." Commonwealth v. Corsetti, 387 Mass. 1, 5, 438 N.E.2d 805 (1982); Matter of Pappas, 358 Mass. 604, 607-609, 266 N.E.2d 297 (1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (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, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950), quoting 8 J. Wigmore, Evidence § 2192, at 64 (3d ed. 1940). As such, they must be strictly construed (see Commonwealth v. Corsetti, supra ), and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting). Except for the privilege against self-incrimination (Branzburg v. Hayes, 408 U.S. 665, 689-690, 92 S.Ct. 2646, 2660-2661, 33 L.Ed.2d 626 [1972], Matter of Roche, 381 Mass. 624, 634 n. 11, 411 N.E.2d 466 [1980] ), and a limited "executive privilege" (United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108-3109, 41 L.Ed.2d 1039 [1974] ), testimonial privileges have generally not been based on a constitutional right. The question "we must decide [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." Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980). See Matter of Pappas, supra, 358 Mass. at 609, 266 N.E.2d 297, quoting Professor Edmund M. Morgan in his preface to the American Law Institute's Model Code of Evidence.

We are, of course, free to identify a privilege of a child not to testify against his or her parent. Such a privilege could be based on common law or constitutional principles. ³ In recent years, however courts have tended to leave the creation of evidentiary privileges to legislative determination.

We have recognized common law testimonial privileges, as a matter of public policy, such as the attorney-client privilege (Foster v. Hall, 12 Pick. 89, 97 [1832] ), and the government informer privilege (Worthington v. Scribner, 109 Mass. 487, 489, 493 [1872] ). Some members of this court have expressed a willingness to consider recognizing a news reporter's privilege. See Matter of Roche, 381 Mass. 624, 638-640, 411 N.E.2d 466 (1980). The Legislature has also recognized certain testimonial privileges. See G.L. c. 233, § 20A (certain communications to a clergyman); G.L. c. 233, § 20B (certain communications between a psychotherapist and a patient); G.L. c. 112, § 135 (certain communications to a social worker). All these statutory and common law privileges involve communications made in confidential circumstances. They do not involve disqualifications from testifying.

The Legislature has recognized a testimonial disqualification as to certain private conversations between spouses. G.L. c. 233, § 20, clause First. It has granted one spouse the right to elect not to testify against the other spouse in a criminal proceeding (except in a proceeding relating to child abuse or in an action for nonsupport). G.L. c. 233, § 20, clause Second, as appearing in St.1983, c. 145. There is, however, no privilege for a spouse not to testify against the other spouse in a civil action, even if that testimony may be highly destructive of the marital relationship. The Legislature has not chosen to establish a parent-child testimonial privilege or disqualification. It has, however, been willing to recognize problems presented to family members by criminal conduct of another family member. See G.L. c. 274, § 4 (exemption of certain family members from criminal liability as accessories after the fact for harboring a family member after his commission of a felony).

In our order of August 4, 1983, we expressly declined to rule on the question of a privilege as to "alleged confidential communications between the parents and their children." We adhere to that determination. Although there is limited support for a testimonial privilege to protect confidential communications from child to parent, the weight of authority is against it. ⁴ 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. We are aware of no State that, through legislation or by a decision of its court of last resort, has recognized any privilege that would protect a child from testifying against a parent concerning the parent's confidential communications to the child. In any event, the case before us does not currently involve, and may never involve, the question of confidential communications between parent and child. ⁵ A clear majority of the courts that have considered whether there is a general privilege of a child not to testify against his or her parent have found no such privilege. Understandably, there should be no privilege when a parent is charged with physically abusing the child (Hunter v. State, 172 Ind.App. 397, 410, 360 N.E.2d 588, cert. denied, 434 U.S. 906, 98 S.Ct. 306, 54 L.Ed.2d 193 [1977] ), or where a family member may otherwise be the victim of wrongdoing. Where the focus of inquiry involves the conduct of a parent, courts have almost universally declined to recognize a privilege. See United States v. Jones, 683 F.2d 817, 818-819 (4th Cir.1982); United States v. Penn, 647 F.2d 876, 885 (9th Cir.1980) ("There is no judicially or legislatively recognized general 'family' privilege"); In re Grand Jury Proceedings, 647 F.2d 511, 512-513 (5th Cir.1981) (per curiam); State v. Gilroy, 313 N.W.2d 513, 516 (Iowa 1981). We are aware of only one opinion that has recognized not only a privilege of a child not to testify against his father as to confidential communications but also a privilege not to testify against his father at all in a criminal proceeding. In re Grand Jury Proceedings Witness: Agosto, 553 F.Supp. 1298 (D.Nev.1983)....