UNDER SEAL v. U.S., NO. 13-4933

Decided: June 16, 2014  

The Fourth Circuit ruled that the district court erred in adopting the parent-child privilege and excusing a son “from testifying before a grand jury” on potential federal charges against his father.  In doing so, the Court joined several other circuits, which have declined to recognize a parent-child privilege under Federal Rules of Evidence (F.R.E.) 501.

Sheriff deputies responded to an emergency domestic assault call from the Defendant’s (Mr. Doe) wife, and mother of their son (Doe Jr.).  During this response, numerous firearms were discovered and seized at the Doe home.  Though the assault charges were dismissed, the Government began an investigation to determine whether Mr. Doe unlawfully possessed unregistered firearms in violation of 26 U.S.C. § 5861(d).  Mr. Doe and his wife separated, and Doe Jr. moved in with his father.  The Government referred the case to a grand jury for possible indictment, and subpoenaed Doe Jr. “to determine the ownership of the illegal guns” found at the Doe home.  Doe Jr. filed a motion to quash, claiming parent-child privilege.  The district court granted the motion, emphasizing the privacy rights of Doe Jr. and concluding that the relationship between Doe Jr. and his father created a privilege.

After canvassing cases in other circuits, the Court stated that “reason and experience” did not warrant creation of the privilege in the face of substantial authority to the contrary.  Moreover, the Court found that the nineteen-year-old son did not make a strong showing of the need for the parent-child privilege.  The Court explained that the son was “not an impressionably very young child,” but rather an adult college student.  The Court also referenced Doe Jr.’s testimony that he did not think his father would “cut [him] off[,]” or “hold it against [him]” if he testified truthfully.  Because the Government only sought to determine the ownership of the firearms found at the Doe residence, the Court could not “say with certainty that Doe Jr.’s potential testimony would be of a nature that would damage the father-son relationship.”

The Court emphasized the “fundamental principal that the public has a right to ‘every man’s evidence.’”  Doe Jr. was the only individual available to testify to the ownership.  Thus, his testimony was particularly relevant to the grand jury’s investigation.  On these facts, the Court stated that:  “[c]reating a parent-child privilege in this case would therefore discount the [U.S.] Supreme Court’s admonishment that only limited exceptions should trump ‘the normally predominant principle of utilizing all rational means for ascertaining truth.’”

Lastly, the Court opined that allowing Doe Jr. to assert the parent-child privilege would fail the purpose of the privilege.  Doe’s wife called 911 alleging spousal abuse, and, automatic weapons, firearms, and illegal weapons were discovered in the home.  Based on these facts, the Government certainly had reason to investigate.

Full Opinion

Abigail Forrister

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