In re: Grand Jury Subpoena

Filing

AMENDING ORDER/OPINION filed [999377052] amending and superseding Published Authored Opinion [999376130-2] dated 06/16/2014. Originating case number: 1:13-cv-03058-JFM-1 Copies to all parties.. [13-4933]

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FILED:

June 17, 2014

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 13-4933
(1:13-cv-03058-JFM-1)
___________________

UNDER SEAL
Petitioner - Appellee
v.
UNITED STATES OF AMERICA
Respondent - Appellant
___________________
O R D E R
___________________
The Court amends its opinion filed June 16, 2014, as
follows:
On page 2, third paragraph, line 1 – the word "Hartford" is
corrected to read "Harford."
For the Court--By Direction
/s/ Patricia S. Connor, Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4933

UNDER SEAL,
Petitioner - Appellee,
v.
UNITED STATES OF AMERICA,
Respondent - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cv-03058-JFM-1)

Argued:

May 15, 2014

Before WILKINSON and
Senior Circuit Judge.

Decided:

THACKER,

Circuit

Judges,

June 16, 2014

and

HAMILTON,

Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Wilkinson and Senior Judge Hamilton
joined.

ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellant.
Peter Dennis Ward, LAW
OFFICE OF PETER D. WARD, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.

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THACKER, Circuit Judge:
During the course of a grand jury investigation, the
Government

subpoenaed

a

19-year-old

man

(“Doe

Jr.”

or

“Appellee”) to testify with regard to potential federal charges
against his father (“Mr. Doe”). 1
subpoena

pursuant

17(c)(2),

claiming

to

Federal

that

his

Doe Jr. moved to quash the
Rule

of

testimony

purported parent-child privilege.

Criminal
was

Procedure

shielded

by

a

The district court granted

the motion.
No federal appellate court has recognized a parentchild privilege, and we decline to do so here.

As explained

more fully below, Doe Jr. has not made a strong showing of need
for the parent-child privilege, and “reason and experience” do
not warrant creation of the privilege in the face of substantial
authority to the contrary.

Fed. R. Evid. 501.

Therefore, we

reverse and remand for further proceedings.
I.
A.
On

November

30,

2012,

Harford

County,

Maryland

sheriff’s deputies responded to a 911 domestic assault complaint
1

In order to protect the confidentiality of the grand jury
proceedings, we refrain from referring to involved parties by
their proper names.
See Fed. R. Crim. P. 6(e); In re Grand
Jury, John Doe No. G.J.2005-2, 478 F.3d 581, 583 n.1 (4th Cir.
2007).

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from Doe Jr.’s mother (“Mrs. Doe”).
Doe

Jr.

lived

two

minor

The deputies arrived and conducted a search.

siblings.

in

the

They

seized approximately

house

40

with

At this time, 18-year-old

firearms,

his

parents

including

and

two

assault-style

rifles, a WWII-style pistol, a loaded semi-automatic handgun,
and an AK-47 assault rifle; equipment used to alter and convert
firearms (i.e., torches, welding equipment, and saws); and in
the basement, marijuana plants growing in five-gallon buckets
and drug paraphernalia.
Domestic abuse charges were filed against Mr. Doe, but
Mrs.

Doe

separated,

later
and

dropped
Doe

Jr.

them.
moved

Mr.
in

and

with

Mrs.

his

Doe

father

thereafter
because

he

claims he was “was kicked out of the house by [his] mother.”
J.A. 34. 2

Doe Jr. now lives exclusively with Mr. Doe, who helps

to pay for his college education and supports him financially.
Doe Jr. also testified that he has an aunt who helps with his
college bills, and if she did not, he “would not have been able
to go to college this year.”

Id. at 37.
B.

The

Government

began

investigating

the

events

of

November 30, 2012, and referred the case to a grand jury for

2

Citations to the “J.A.” refer to the Joint Appendix filed
under seal by the parties in this appeal.

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possible
October

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prosecution
10,

2013,

pursuant
the

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to

26

Government

U.S.C.

§

5861(d). 3

subpoenaed

Doe

Jr.

On
“to

determine the ownership of the illegal guns” found at the Doe
home.

Appellant’s Br. 4.
Doe

Jr.

filed

a

motion

to

quash

with

the

district

court on October 15, 2013, explaining that he believed he was
called upon to testify “as part of an ongoing investigation of
federal criminal charges pending against his father.”
He

contends

that

enforcing

the

Government’s

J.A. 6.

subpoena

would

violate the parent-child privilege:
In a case like this, where the Government
seeks to solidify a criminal case against the
father by compelling the child’s testimony,
the necessary conclusion on the child’s part
will be that he, [Doe Jr.], is responsible
for his father’s prosecution. The damage to
the father-son relationship is, under these
circumstances,
as
certain
as
it
is
incalculable.
Id. at 10.
On October 16, 2013, the district court held a hearing
on the motion to quash, at which Doe Jr. -- at that time 19
years old -- testified.

The following exchange occurred:

3

“It shall be unlawful for any person . . . to receive or
possess a firearm which is not registered to him in the National
Firearms
Registration
and
Transfer
Record.”
26
U.S.C.
§ 5861(d).

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[THE
GOVERNMENT]:
[I]f
you
testify
truthfully . . . are you saying that your
dad . . . would not cut you off?
[DOE JR.]:

Yeah.

Q:

He would cut you off?

A:

No.

Q: He would not cut you off.
it against you?
A:
J.A. 38.
anxiety

Would he hold

Would he hold it against me?

No.

Nonetheless, Doe Jr. said that he had significant
about

testifying

against

his

father,

and

provided

doctors’ notes to that effect.
At the district court hearing, the Government argued
that there would be “no negative ramifications” resulting from
Doe Jr. testifying.

J.A. 50.

Because Mrs. Doe had invoked her

spousal privilege and the Government did not intend to call the
two minor Doe children as witnesses, the Government asserted it
needed Doe Jr.’s testimony to “fully explore all the evidence in
this case to do a complete and thorough investigation.”

Id.

The Government noted, “there is a chance that there were other
people in the house besides [Mr. Doe] that might be responsible
for the[] automatic weapons.”

Id. at 48. 4

4

In its response to Doe Jr.’s motion to quash, the
Government stated, “[t]here is no basis to believe [Doe Jr.] is
a target for the federal firearms offenses.
Further, no
information has been provided linking him to the illegal
(Continued)
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The district court granted the motion to quash from
the bench, explaining, in part,
The fact of the matter is, based upon the
testimony as I have heard it, there is a
continuing relationship between [Doe Jr.]
and his dad. [Doe. Jr.]’s age is certainly
not as old as some of the people in the
other cases.
I’m not sure quite how age
cuts. If I had a very young person, I would
be concerned about abuse.
And there is a
potential for abuse in this situation. With
[Doe] Jr., if he were to testify, despite
what he knew about his father’s perception,
certainly there would be a[n] incentive for
the father to cut him off now.
And if the
father is convicted, then a source of income
is cut off, so [Doe] Jr., might not be able
to continue in college as he is now doing,
nor have his necessities provided for.
But . . . in the final analysis it has to do
with one’s perception of the proper role of
government.
. . .
[O]ne
must
be
concerned
about
the
intersection of government and individual
privacy rights.
And . . . the government
has every reason to be concerned here. And
I’m not suggesting in any way that they’re
being motivated improperly by seeking this
testimony.
But I think the privilege does
exist.
It must be . . . considered on a
case-by-case basis.

weapons.”
J.A. 24.
Nonetheless, Appellee expressed concern
regarding his own prosecution, and a proffer session was
scheduled for October 11, 2013. The Government offered Doe Jr.
limited use immunity; however, Doe Jr. rejected this offer,
canceled the proffer session, and filed the instant motion.
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Hearing the evidence before me, I think that
the relationship between [Doe Jr.] and his
father does create the privilege.
And [Doe
Jr.] does not have to testify in the grand
jury.
I’m not -- despite what I’ve said,
I’m not being critical of the government.
I’m very suspicious about the relationship,
of the possession of the automatic weapons
and the growing of marijuana in pots in the
basement.
But I don’t think that my
suspicions about that provide an adequate
reason for me to say that the government’s
and
society’s
interests
trump
those
constitutional -- the privacy rights of
[Doe] Jr.
So I find the privilege exists and grant the
motion to quash.
J.A. 54-56.
The Government filed a timely notice of appeal.
possess jurisdiction pursuant to 18 U.S.C. § 3731.

We

See In re

Grand Jury, John Doe No. G.J.2005-2, 478 F.3d 581, 584 (4th Cir.
2007) (“This court has jurisdiction to review a district court
order quashing a subpoena pursuant to 18 U.S.C. § 3731.”).
II.
This court reviews the district court’s quash of a
grand jury subpoena for abuse of discretion.
Jury,
2007).

John

Doe

No.

However,

G.J.2005-2,

“[w]hether

to

478

F.3d

recognize

See In re Grand

581,
a

584

(4th

privilege

Cir.
under

Federal Rule of Evidence 501 is a mixed question of law and
fact, which we review de novo.”

Virmani v. Novant Health Inc.,

259 F.3d 284, 286-87 (4th Cir. 2001).

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III.
A.
1.
Federal Rule of Evidence 501 provides, “[t]he common
law -- as interpreted by United States courts in the light of
reason and experience -- governs a claim of privilege unless any
of

the

following

provides

otherwise:

[]

the

United

States

Constitution, [] a federal statute; or [] rules prescribed by
the Supreme Court.”
(emphasis

Fed. R. Evid. 501 (hereinafter, “Rule 501”)

supplied).

Rule

501

allows

for

“recognition

of

a

privilege based on a confidential relationship . . . on a caseby-case

basis.”

Jaffee

v.

Redmond,

518

U.S.

1,

8

(1996)

(recognizing psychotherapist-patient privilege under the “reason
and experience” clause of Rule 501) (internal quotations marks
omitted); see also Trammel v. United States, 445 U.S. 40, 47
(1980)

(“Congress

manifested

an

freeze the law on privilege.

affirmative

intention

not

to

Its purpose was to provide the

courts with the flexibility to develop rules of privilege on a
case-by-case
(internal

basis,

citation

and
and

to

leave

quotation

the

door

marks

open

omitted).

to

change.”)
Rule

501,

therefore, “leaves the door open for courts to adopt new commonlaw privileges, and modify existing ones, in appropriate cases.”
United States v. Sterling, 724 F.3d 482, 501 (4th Cir. 2013).

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In Trammel, however, the Supreme Court cautioned,
[t]estimonial
exclusionary
rules
and
privileges
contravene
the
fundamental
principle that the public has a right to
every man’s evidence. As such, they must be
strictly construed and accepted only to the
very
limited
extent
that
permitting
a
refusal to testify or excluding relevant
evidence has a public good transcending the
normally predominant principle of utilizing
all rational means for ascertaining truth.
445

U.S.

at

50-51

(internal

quotation

marks,

citation,

and

alteration omitted); see also Sterling, 724 F.3d at 502 (“As the
Supreme Court made clear in Jaffee, the federal courts’ latitude
for adopting evidentiary privileges under Rule 501 remains quite
narrow indeed.”). 5

5

We pause at the outset to observe that new privileges are
perhaps most aptly created via the legislative process.
In an
ever-changing world, we should be “circumspect about creating
new
privileges
based
upon
perceived
public
policy
considerations.” In re Grand Jury, 103 F.3d 1140, 1154 (3d Cir.
1997); see also Branzburg v. Hayes, 408 U.S. 665, 706 (1972)
(plurality) (suggesting that courts should yield to legislatures
in fashioning privileges). Leaving this task to the legislative
branch would also allow for the privilege to be more precisely
defined.
See In re Grand Jury, 103 F.3d at 1157
(“If a new
privilege were to be engraved in the concrete of our
jurisprudence . . . , then it should be framed so that its
contours are clear and unambiguous[.]”); see also Upjohn Co. v.
United States, 449 U.S. 383, 393 (1981) (“An uncertain
privilege, or one which purports to be certain but results in
widely varying applications by the courts, is little better than
no privilege at all.”).

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2.
Only a very small handful of federal district courts
in this country have recognized the parent-child privilege.

The

District of Nevada created the privilege where a minor child was
issued

a

father.
1983).

subpoena

to

offer

grand

jury

testimony

against

his

See In re Agosto, 553 F. Supp. 1298, 1299 (D. Nev.
The court concluded that the “parent-child privilege

. . . is based not only on the confidential nature of specific
communications

between

parent

and

child,

but

also

upon

the

privacy which is a constitutionally protectable interest of the
family in American society.”

Id. at 1325.

The court also

reasoned, “the parent-child relationship exhibits similarities
not only to the spousal relationship, which is based upon love
and affection, but to the psychotherapist-patient relationship,
which is based upon the guidance and ‘listening ear’ which one
party to the relationship provides to the other party.”
note, the continued vitality of Agosto is questionable.

Id.

Of

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
11

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or

legislatively

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recognized general ‘family’ privilege, and we decline to create
one here.” (citations omitted)).
The District of Connecticut has recognized a parentchild

privilege

clause.

based

on

the

First

Amendment

free

exercise

See In re Grand Jury Proceedings (Greenberg), 1982 WL

597412, at *6 (D. Conn. June 25, 1982) (finding First Amendment
basis for the parent-child privilege between a Jewish mother and
daughter, explaining, “[t]he asserted parent-child privilege is
available to Mrs. Greenberg, though only insofar as it rests on
her religious conviction that she cannot testify against her
[adult] daughter willingly or under legal compulsion.”).
Finally,

the

Eastern

District

of

Washington

“recog[nized] the existence of a parent-child privilege.”

has
In re

Grand Jury Proceedings, Unemancipated Minor Child, 949 F. Supp.
1487, 1497 (E.D. Wash. 1996).

That court explained,

It is well settled that there is a right to
privacy associated with family life, whether
that
be
found
in
the
“penumbras
and
emanations” of the Bill of Rights, in the
Ninth Amendment, or in the concept of
“liberty”
that
is
derived
from
the
Fourteenth Amendment.
This right extends
only to “matters so fundamentally affecting
a person as the decision whether to bear or
beget a child.”
Thus, the Supreme Court
found that this right of privacy encompasses
such
private
familial
activities
as
marriage, procreation, contraception, and
child rearing and education.

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Id. at 1489 (footnotes with citations omitted).

Although the

court did not ultimately adopt the privilege in that particular
case, it concluded that, based on the aforementioned privacy
interests,

“reason

and

experience,

as

well

as

the

public

interest, are best served by the recognition of some form of a
parent-child privilege.”
These

Id. at 1497. 6

decisions

have

privilege to other privileges.
at

1307

(noting

the

compared

the

parent-child

See, e.g., Agosto, 553 F. Supp.

importance

of

the

attorney-client

relationship in “the administration of justice” such that the
“confidential nature of the relationship is . . . worthy of
protection,”
certain

and

explaining,

properly

functioning

“the
human

6

confidentiality
relationships

inherent

in

is

an

also

New York state courts have recognized a privilege against
divulging private familial communications, with emphasis on the
privacy of the family unit. See, e.g., In re A & M, 61 A.D.2d
426, 433 (N.Y. App. Div. 1978) (recognizing the need to protect
and foster open communication between children and parents, and
stating, “If we accept the proposition that the fostering of a
confidential parent-child relationship is necessary to the
child’s development of a positive system of values, and results
in an ultimate good to society as a whole, there can be no doubt
what the effect on that relationship would be if the State could
compel parents to disclose information given to them in the
context of that confidential setting.”); People v. Fitzgerald,
422 N.Y.S.2d 309, 312 (N.Y. Cnty. Ct. 1979) (“[A] parent-child
privilege does exist in this State, flowing directly from such
rights as are granted by both the Federal and New York State
Constitutions, U.S. Constitution, Amendments 9 and 14, New York
State Constitution, Art. 1 § 6, § 1, which have fostered the
recognition of what has come to be known as the ‘right to
privacy.’”).

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important goal for society to recognize and protect.”); id. at
1325 (“There is no reasonable basis for extending a testimonial
privilege for confidential communications to spouses, who enjoy
a dissoluble legal contract, while yet denying a parent or child
the right to claim such a privilege to protect communications
made within an indissoluble family unit[.]”); In re Grand Jury
Proceedings,

949

F.

Supp.

at

1494

(“As

with

spousal

relationships, reason and experience dictate that parents and
children share a unique relationship.”).
In contrast, every federal appellate court that has
considered adoption of the parent-child privilege -- including
our

own

--

has

rejected

it.

See,

e.g.,

United

States

v.

Dunford, 148 F.3d 385, 391 (4th Cir. 1998) (declining to adopt
the privilege where minor children were compelled to testify at
their father’s trial, because the father abused the children and
placed them at risk with illegal firearms); In re Grand Jury,
103 F.3d 1140, 1146-47 (3d Cir. 1997) (appeals from three cases,
one involving an adult whose father was called upon to testify
against him, and the other two involving a minor child who was
called upon to testify against her father -- the court found
that, as to both cases, no privilege existed); In re Erato, 2
F.3d 11, 16 (2d Cir. 1993) (“We see no basis for recognizing in
federal law a new privilege that would permit a mother to assert
a parent-child privilege to avoid testifying against her adult
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regarding

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transactions

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in

which

she

appears

to

have

benefited from her son’s allegedly criminal activity[.]”); Grand
Jury Proceedings of John Doe v. United States, 842 F.2d 244,
245–48 (10th Cir. 1988) (holding that compelling a 15-year-old
Mormon to testify against his mother and other family members
did

not

violate

his

First

Amendment

rights,

given

the

government’s interest in investigating federal crimes); United
States v. Davies, 768 F.2d 893, 899 (7th Cir. 1985) (declining
to adopt the privilege where a teenage girl provided a phone
number to law enforcement, which led officers to her father’s
apartment, allowing them to begin surveillance of her father);
United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir. 1985)
(declining

to

adopt

the

privilege

where

the

Government

subpoenaed a 30-year-old emancipated son to testify against his
father at trial); In re Grand Jury Subpoena of Santarelli, 740
F.2d 816, 817 (11th Cir. 1984) (per curiam) (declining to adopt
privilege where son did not want to testify against his father);
In re Grand Jury Proceedings (Starr), 647 F.2d 511, 513 (5th
Cir. 1981) (per curiam) (rejecting parent-child privilege where
daughter refused to testify about her mother and step-father’s
alleged involvement in a homicide); United States v. Penn, 647
F.2d 876, 885 (9th Cir. 1980) (en banc) (declining to adopt the
parent-child privilege to suppress a jar of heroin, where police

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bribed a five-year-old boy to show them where his mother had
hidden the heroin, and he did so).
3.
In our own cases of United States v. Jones, 683 F.2d
817 (4th Cir. 1982), and Dunford, 148 F.3d 385, we declined to
recognize a parent-child privilege, but stopped short of issuing
a blanket rejection of the privilege.
In Jones, we declined to adopt the privilege where the
Government subpoenaed a 29-year-old man to testify against his
father during grand jury proceedings.

See 148 F.2d at 818-19.

However, we limited the holding as such:
Jones is an emancipated adult, not an
impressionable very young child. . .
.
Under
the
circumstances,
namely
an
emancipated, adult child’s testimony which
only arguably would be adverse to his
father, limited to questions unrelated to
his familial association with his parent,
and
involving
no
communication
between
father and son, we are satisfied that there
simply is no privilege such as Jones has
asserted.
Whether, in changed factual circumstances,
the presence of other considerations would
make a difference we, of course, have no
occasion to consider and do not now address.
In particular, we do not endeavor to decide
to what extent the age of the child and
whether or not emancipation has occurred may
or may not affect the decision as to whether
any familial privilege exists.
Id. at 819 (citation omitted).

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In
daughters,

Filed: 06/17/2014

Dunford,
was

the

convicted

Pg: 17 of 22

defendant,
of

a

father

of

fourteen

counts

of

possessing firearms and ammunition.

two

minor

illegally

See 148 F.3d at 387.

At

his trial, a witness testified that Dunford abused his daughters
by, in one instance, placing a gun to his daughter’s head and
threatening to kill her, and in another instance, kicking his
daughter in the ribs and hitting her in the eye, causing a
bruise.

But when the Government called Dunford’s daughters to

testify against him, they both denied that this abuse occurred.
Nonetheless, after his conviction, Dunford appealed,
arguing that by allowing his daughters to testify against him,
the

district

privilege.

court

violated

his

parent-child

See Dunford, 148 F.3d at 390.

testimonial

We rejected this

argument, explaining,
This circuit has never recognized a parentchild testimonial privilege.
. . .
This
case does not present the circumstances
through
which
to
address
whether
to
recognize
a
parent-child
testimonial
privilege for minor children.
Dunford was
charged with illegally possessing guns in
circumstances where he was abusing his
children and placing them at risk with those
guns.
This is not the beneficial family
unit that history has celebrated, and this
is not the relationship which Dunford argues
in principle should remain protected.
Dunford, 148 F.3d at 391.
As in Jones, however, the Dunford court also left room
for adoption of the privilege under certain circumstances:
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There may be much to commend a testimonial
privilege in connection with the testimony
of or against a minor child to preserve the
family unit which is so much under stress in
today’s
society.
The
tangible
and
intangible
benefits
of
keeping
families
intact often seem to be forgotten in today’s
willingness to enact laws that readily
authorize the fracture of the family or that
provide
incentives
for
doing
so.
In
Trammel, the Court observed that casting
aside a privilege that affects “marriage,
home, and family relationships -- already
subject to much erosion in our day -counsels caution.”
445 U.S. at 48.
But
even if such a privilege were to be
recognized, it would have to be narrowly
defined and would have obvious limits,
perhaps such as where the family fractures
itself or the child waives the privilege or
where ongoing criminal activity would be
shielded by assertion of the privilege.
Dunford,

148

F.3d

at

391

(internal

citation

and

alteration

omitted).
B.
Considering the legal landscape set forth above, we
conclude the district court erred in creating a parent-child
privilege in this case.

As one of our sister circuits has

explained, we should create a new privilege “only after careful
consideration in the face of a strong showing of need for the
privilege.”

In re Grand Jury Investigation, 918 F.2d 374, 383

(3d Cir. 1990).

There is no such showing here.

First, Doe Jr. is “not an impressionable very young
child,” but an adult college student.

18

Jones, 683 F.2d at 819.

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And although Mr. Doe provides Doe Jr.’s room and board, buys his
clothing, and “contributes a substantial amount” to his college
tuition, Doe Jr. himself acknowledged that Mr. Doe would not
“cut [him] off” or “hold it against [him]” if Doe Jr. testified
truthfully.

J.A. 37-38; see also id. at 37 (The Court: “Has

your

threatened

father

to

cut

off

his

testify?” Doe Jr.: “Absolutely not.”).

aid

to

you

if

you

Nor does Doe Jr. rely

solely upon Mr. Doe for support for his schooling.
37 (“My aunt helped with the college as well.

See id. at
Otherwise, I

would not have been able to go to college this year.”).
Further,
determine

the

because

ownership

the

of

the

Government
firearms

simply
found

seeks

to

the

Doe

at

residence, we cannot say with certainty that Doe Jr.’s potential
testimony would be of a nature that would damage the father-son
relationship, or that creating the privilege will promote the
privacy interests a parent-child privilege is meant to protect.
Indeed,

as

the

Government

explained

at

the

district

court

hearing, “[T]here is a chance that there were other people in
the house besides [Mr. Doe] that might be responsible for the[]
automatic

weapons.”

J.A.

48.

See

Jones,

683

F.2d

at

819

(declining to adopt the parent-child testimonial privilege where
the

evidence

to

be

gathered

would

“only

arguably

.

.

.

be

adverse to his father, limited to questions unrelated to his
familial

association

with

his
19

parent,

and

involv[e]

no

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communication between father and son” (emphasis supplied)); In
re Grand Jury Proceedings, 949 F. Supp. at 1497 (parent-child
testimonial privilege did not apply because minor child did not
“show[]

how,

or

to

what

extent,

his

testimony

would

require

revelation of actions or communications that would be adverse to
his father’s interests”); cf. Sterling, 724 F.3d at 502 (noting
that for any privilege to arise, “‘the communications [sought]
must originate in a confidence that they will not be disclosed’”
(quoting 1 McCormick on Evidence § 72 n.7 (Kenneth S. Broun ed.,
7th ed. 2013) (alteration omitted)).

Therefore, the possibility

of injury to the harmonious relationship between Doe Jr. and Mr.
Doe is slight to nil.
Moreover, courts have acknowledged time and again the
fundamental

principle

that

the

public

has

a

right

to

“every

man’s evidence,” Trammel, 445 U.S. at 50 (internal quotation
marks omitted), and in this case, there is no good reason to
thwart that right.

Doe Jr. was the only individual living in

the Doe household at the time of the 911 call who is available
to testify, save the two minor Doe children.

Thus, the “sought-

after testimony is of demonstrated relevancy to the grand jury’s
investigation.”
(4th Cir. 1983).

United States v. Under Seal, 714 F.2d 347, 350
Creating a parent-child privilege in this case

would therefore discount the Supreme Court’s admonishment that
only limited exceptions should trump “the normally predominant
20

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principle

of

utilizing

truth.”

Jaffee,

518

all
U.S.

Pg: 21 of 22

rational
at

9

means

for

(internal

ascertaining

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

investigation, Mrs. Doe alleged spousal abuse. 7

Government’s
Moreover, the

home in which she and Mr. Doe were raising two minor children
contained
there

automatic

were

district

illegal

court

weapons
drugs

itself

and

numerous

growing

recognized,

in

the

“[t]he

other

firearms,

and

basement.

As

the

possession

of

the

automatic firearms, and the presence of marijuana growing in the
basement in 5 gallon pots certainly gives the government reason
to be concerned.”

J.A. 54.

Under these circumstances, Doe Jr. has not provided a
strong showing that adoption of the parent-child privilege would

7

At the district court hearing, the Government also read a
letter from Mrs. Doe alleging that Mr. Doe abused her while she
was pregnant with Doe Jr.’s younger sister in 1996.
Doe Jr.
denied that this abuse occurred.

21

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“promote[] sufficiently important interests to outweigh the need
for

probative

justice.”

evidence

in

the

administration

of

criminal

Jones, 683 F.2d at 819 (quoting Trammel, 445 U.S. at

51).
IV.
For the foregoing reasons, the district court erred in
adopting the parent-child privilege and excusing Doe Jr. from
testifying before the grand jury.

We reverse and remand.

REVERSED AND REMANDED

22