Open Issue: Whether To Recognize A Parent-Child Privilege?

Fourth Circuit joins other circuits in declining to recognize a parent-child privilege under FRE 501; circuit holds that “the district court erred in adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father; circuit notes the unanimity of the other circuits that have addressed the privilege, in Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933)

There are two separate privileges based on the marital relationship. One protects confidential communications made during marriage. The other bars a spouse from testifying against the other during the marriage. What about a parent-child privilege? The Fourth Circuit recently reviewed this issue and canvassed the cases considering whether this privilege should be recognized.

District Court Proceedings

The government commenced an investigation whether a father (Doe) unlawfully possessed unregistered firearms under 26 U.S.C. § 5861(d). Numerous firearms were initially discovered and seized when sheriff deputies responded to an emergency domestic assault call from his wife who was the mother of Doe Jr or their son. The seized items included “two assault-style rifles, a WWII-style pistol, a loaded semi-automatic handgun, and an AK-47 assault rifle; equipment used to alter and convert firearms (i.e., torches, welding equipment, and saws); and in the basement, marijuana plants growing in five-gallon buckets and drug paraphernalia.” While the domestic abuse charges were dismissed, the father and mother separated and the son went to live with his father.

During the grand jury investigation, the nineteen year son was subpoenaed “to testify with regard to potential federal charges against his father”; specifically, "to determine the ownership of the illegal guns." The son moved to quash the subpoena under the parent-child privilege.

The district court held a hearing on the motion to quash. The son testified and responded that if he testified his father “would not” cut him off nor would the father “hold it against” him. The son “said that he had significant anxiety about testifying against his father” and presented supporting doctors' notes. The government expressed the need to complete the investigation and determine the ownership of the firearms. The government reported that Mrs. Doe asserted the spousal privilege and two minor children would not be called as witnesses. In granting the motion to quash, the district court explained its ruling, in part:

The fact of the matter is, based upon the testimony as I have heard it, there is a continuing relationship between [Doe Jr.] and his dad. [Doe. Jr.]'s age is certainly not as old as some of the people in the other cases. I'm not sure quite how age cuts. If I had a very young person, I would be concerned about abuse. And there is a potential for abuse in this situation. With [Doe] Jr., if he were to testify, despite what he knew about his father's perception, certainly there would be a[n] incentive for the father to cut him off now. And if the father is convicted, then a source of income is cut off, so [Doe] Jr., might not be able to continue in college as he is now doing, nor have his necessities provided for.

But . . . in the final analysis it has to do with one's perception of the proper role of government.

. . .

[O]ne must be concerned about the intersection of government and individual privacy rights. And . . . the government has every reason to be concerned here. And I'm not suggesting in any way that they're being motivated improperly by seeking this testimony. But I think the privilege does exist. It must be . . . considered on a case-by-case basis.

Hearing the evidence before me, I think that the relationship between [Doe Jr.] and his father does create the privilege. And [Doe Jr.] does not have to testify in the grand jury. I'm not — despite what I've said, I'm not being critical of the government. I'm very suspicious about the relationship, of the possession of the automatic weapons and the growing of marijuana in pots in the basement. But I don't think that my suspicions about that provide an adequate reason for me to say that the government's and society's interests trump those constitutional — the privacy rights of [Doe] Jr.
So I find the privilege exists and grant the motion to quash.

Under Seal, _ F.3d at _ (quoting district court ruling from the bench). The government appealed the ruling.

Fourth Circuit Review: Declining To Recognize A Parent-Child Privilege; Reversing And Remanding

The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: "No federal appellate court has recognized a parent-child privilege, and we decline to do so here." In particular, the circuit noted that "Doe Jr. has not made a strong showing of need for the parent-child privilege, and 'reason and experience' do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501." Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

District Court Cases Recognizing The Privilege

At the district court level, the circuit noted that “a very small handful of federal district courts in this country have recognized the parent-child privilege.” The following cases were noted:

  • District of Nevada: In re Agosto, 553 F. Supp. 1298, 1325 (D. Nev. 1983) (in recognizing the parent-child privilege, noting the "parent-child privilege. . . is based not only on the confidential nature of specific communications between parent and child, but also upon the privacy which is a constitutionally protectable interest of the family in American society"); but see In re Grand Jury Proceedings (Alba), No. 93-17014, 1993 WL 501539 at *1 n.1 (9th Cir., Dec. 2, 1993) (per curiam) ("The holding in Agosto is contrary to our decision in [United States v.] Penn [, 647 F.2d 876, 885 (9th Cir. 1980) (en banc)], and contrary to the overwhelming weight of case law from other circuits that also reject the concept of a family privilege."); see also Penn, 647 F.2d at 885 ("There is no judicially or legislatively recognized general `family' privilege, and we decline to create one here." (citations omitted)).
  • District of Connecticut: In re Grand Jury Proceedings (Greenberg), 1982 WL 597412, at *6 (D. Conn. June 25, 1982) (finding First Amendment basis for the parent-child privilege between a Jewish mother and daughter, explaining, "[t]he asserted parent-child privilege is available to Mrs. Greenberg, though only insofar as it rests on her religious conviction that she cannot testify against her [adult] daughter willingly or under legal compulsion.")
  • Eastern District of Washington: In re Grand Jury Proceedings, Unemancipated Minor Child, 949 F. Supp. 1487, 1497 (E.D. Wash. 1996) (noting that "reason and experience, as well as the public interest, are best served by the recognition of some form of a parent-child privilege" based on the “right to privacy associated with family life, whether that be found in the ‘penumbras and emanations’ of the Bill of Rights, in the Ninth Amendment, or in the concept of ‘liberty’ that is derived from the Fourteenth Amendment”; but declining to apply the privilege)

Circuit Cases Declining To Recognize The Privilege

Unlike some district court ruling, the Fourth Circuit noted that “every federal appellate court that has considered adoption of the parent-child privilege — including our own — has rejected it.” The opinion listed the following decisions:

  • Second Circuit: In re Erato, 2 F.3d 11, 16 (2d Cir. 1993) ("We see no basis for recognizing in federal law a new privilege that would permit a mother to assert a parent-child privilege to avoid testifying against her adult son regarding transactions in which she appears to have benefited from her son's allegedly criminal activity[.]")
  • Third Circuit: In re Grand Jury, 103 F.3d 1140, 1146-47 (3d Cir. 1997) (in appeals from three cases, one involving an adult whose father was called upon to testify against him, and the other two involving a minor child who was called upon to testify against her father; "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" and listing reasons)
  • Fourth Circuit: United States v. Dunford, 148 F.3d 385, 391 (4th Cir. 1998) (declining to adopt the privilege where minor children were compelled to testify at their father's trial, because the father abused the children and placed them at risk with illegal firearms; "But even if such a privilege were to be recognized, it would have to be narrowly defined and would have obvious limits, perhaps such as where the family fractures itself or the child waives the privilege or where ongoing criminal activity would be shielded by assertion of the privilege.")
  • Fifth Circuit: In re Grand Jury Proceedings (Starr), 647 F.2d 511, 513 (5th Cir. 1981) (per curiam) (rejecting parent-child privilege where daughter refused to testify about her mother and step-father's alleged involvement in a homicide)
  • Sixth Circuit: United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir. 1985) (declining to adopt the privilege where the Government subpoenaed a 30-year-old emancipated son to testify against his father at trial)
  • Seventh Circuit: United States v. Davies, 768 F.2d 893, 899 (7th Cir. 1985) (declining to adopt the privilege where a teenage girl provided a phone number to law enforcement, which led officers to her father's apartment, allowing them to begin surveillance of her father)
  • Ninth Circuit: United States v. Penn, 647 F.2d 876, 885 (9th Cir. 1980) (en banc) (declining to adopt the parent-child privilege to suppress a jar of heroin, where police bribed a five-year-old boy to show them where his mother had hidden the heroin, and he did so)
  • Tenth Circuit: Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244, 245-48 (10th Cir. 1988) (holding that compelling a 15-year-old Mormon to testify against his mother and other family members did not violate his First Amendment rights, given the government's interest in investigating federal crimes)
  • Eleventh Circuit: In re Grand Jury Subpoena of Santarelli, 740 F.2d 816, 817 (11th Cir. 1984) (per curiam) (declining to adopt privilege where son did not want to testify against his father)

Prior Fourth Circuit Cases

The Fourth Circuit noted that it had previously declined to recognize a parent-child privilege but had left the issue open:

  • United States v. Jones, 683 F.2d 817, 819 (4th Cir. 1982) (“Under the circumstances, namely an emancipated, adult child's testimony which only arguably would be adverse to his father, limited to questions unrelated to his familial association with his parent, and involving no communication between father and son, we are satisfied that there simply is no privilege such as Jones has asserted.”)
  • United States v. Dunford, 148 F.3d 385, 391 (4th Cir. 1998) (“This circuit has never recognized a parent-child testimonial privilege. . . . This case does not present the circumstances through which to address whether to recognize a parent-child testimonial privilege for minor children. Dunford was charged with illegally possessing guns in circumstances where he was abusing his children and placing them at risk with those guns. This is not the beneficial family unit that history has celebrated, and this is not the relationship which Dunford argues in principle should remain protected.”)

Insufficient Justification

Finally, the Fourth Circuit found that the facts of this case did not warrant recognition of the privilege. As the circuit explained:

First, Doe Jr. is "not an impressionable very young child," but an adult college student. Jones, 683 F.2d at 819. And although Mr. Doe provides Doe Jr.'s room and board, buys his clothing, and "contributes a substantial amount" to his college tuition, Doe Jr. himself acknowledged that Mr. Doe would not "cut [him] off" or "hold it against [him]" if Doe Jr. testified truthfully. (The Court: "Has your father threatened to cut off his aid to you if you testify?" Doe Jr.: "Absolutely not."). Nor does Doe Jr. rely solely upon Mr. Doe for support for his schooling. ("My aunt helped with the college as well. Otherwise, I would not have been able to go to college this year.").

Further, because the Government simply seeks to determine the ownership of the firearms found at the Doe residence, we cannot say with certainty that Doe Jr.'s potential testimony would be of a nature that would damage the father-son relationship, or that creating the privilege will promote the privacy interests a parent-child privilege is meant to protect....

Moreover, courts have acknowledged time and again the fundamental principle that the public has a right to "every man's evidence," Trammel[ v. United States], 445 U.S. [40,] 50 [(1980)] (internal quotation marks omitted), and in this case, there is no good reason to thwart that right. Doe Jr. was the only individual living in the Doe household at the time of the 911 call who is available to testify, save the two minor Doe children. Thus, the "sought-after testimony is of demonstrated relevancy to the grand jury's investigation." United States v. Under Seal, 714 F.2d 347, 350 (4th Cir. 1983). Creating a parent-child privilege in this case would therefore discount the Supreme Court's admonishment that only limited exceptions should trump "the normally predominant principle of utilizing all rational means for ascertaining truth." Jaffee [v. Redmond], 518 U.S. [1,] 9 [(1996)] (internal quotation marks omitted); see also United States v. Nixon, 418 U.S. 683, 710 (1974) ("[E]xceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.").

Finally, we do not believe the purported purpose of the parent-child privilege would be duly served by shielding Doe Jr. from testifying about the firearms seized on November 30, 2012. In her 911 call that spurred the Government's investigation, Mrs. Doe alleged spousal abuse. Moreover, the home in which she and Mr. Doe were raising two minor children contained automatic weapons and numerous other firearms, and there were illegal drugs growing in the basement. As the district court itself recognized, "[t]he possession of the automatic firearms, and the presence of marijuana growing in the basement in 5 gallon pots certainly gives the government reason to be concerned."

Under Seal, _ F.3d at _ (citations and footnote omitted).


The Under Seal case provides a recent ruling demonstrating the strong weight of case law against the recognition of a parent-child privilege. Absent legislation, it is unlikely that this privilege will be recognized and applied.


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