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In re Grand Jury

January 9, 1997


On Appeal from the District Court of the Virgin Islands (St. Croix) (D.C. Civil No. 95-00009) On Appeal from the United States District Court for the District of the Delaware (D.C. Civil No. 96-51)

GARTH, Circuit Judge

Argued Tuesday, April 16, 1996 at St. Thomas, Virgin Islands

BEFORE: MANSMANN, SAROKIN *fn1 and GARTH, Circuit Judges

Reargued Monday, October 7, 1996 at Philadelphia, Pennsylvania



Argued Monday, October 7, 1996 at Philadelphia, Pennsylvania


filed January 9, 1997)


Three appeals presenting the same critical issue are before us. One appeal originated in the District Court of the Virgin Islands at docket number 95-7354. The other two appeals pertaining to the same Delaware defendant originated in the District Court of Delaware at docket numbers 96-7529 and 96-7530. *fn2

We scheduled oral argument in all three appeals on the same day inasmuch as they raised the same question -- should this court recognize a parent-child privilege? The Delaware appeals also challenge the adequacy of a Schofield affidavit and charge that the in camera ex parte proceeding permitted by the district court constituted a deprivation of due process. We answer the questions presented by holding that a parent-child privilege should not be recognized, and we affirm the district court's rulings which rejected the appellants' objections to the Schofield affidavit and in camera ex parte proceeding.


The facts and procedure of the Virgin Islands case giving rise to one appeal, and of the Delaware case giving rise to two appeals, will be stated separately. *fn3

Docket Number 95-7354: In the Virgin Islands case, the grand jury sitting in St. Croix subpoenaed the father of the target of the grand jury investigation as a witness. *fn4 The target of the grand jury proceeding was the son of the subpoenaed witness.The son became the target of a government investigation as a result of "certain transactions that [he] was allegedly involved in." Tr. at 11. At the time of the alleged transactions, the son was eighteen years old.

The grand jury subpoenaed the target's father to testify on April 18, 1995. The father, a former FBI agent, lived with his wife and son in St. Croix. On April 17, 1995, based on his belief that the grand jury intended to question him about conversations that he had had with his son, the father moved to quash the subpoena, asserting that those conversations were privileged from disclosure under Fed. R. Evid. 501.

The father testified, at a hearing before the district court, that he and his son "ha[d] an excellent relationship, very close, very loving relationship." Tr. at 4. He further testified that if he were coerced into testifying against his son, "[their] relationship would dramatically change and the closeness that [they] have would end . . . ." Id. at 5. The father further explained that the subpoena would impact negatively upon his relationship with his son:

I will be living under a cloud in which if my son comes to me or talks to me, I've got to be very careful what he says, what I allow him to say. I would have to stop him and say, "you can't talk to me about that. You've got to talk to your attorney." It's no way for anybody to live in this country. Id. at 6.

On June 19, 1995, the district court entered its order denying the father's motion to quash. On the same day, the district court granted the targeted son's motion to intervene and then stayed its order which denied the quashing of the father's subpoena pending any appeal. The court's memorandum opinion and order, although clearly sympathetic with the plight of the subpoenaed father, "regretfully decline[d] to recognize [a parent-child] privilege" because the Third Circuit had yet to address the issue and "every United States Court of Appeals that has confronted this question has declined to recognize the parent-child privilege." In re Grand Jury Proceeding, Misc. No. 95-0009, at 14 (D.V.I. June 19, 1995). Appeal of the June 19, 1995 order was promptly taken by the targeted son on June 22, 1995. *fn5

Docket Numbers 96-7529 & 96-7530:

In the Delaware case, a sixteen year old minor daughter was subpoenaed to testify before the grand jury, as part of an investigation into her father's participation in an alleged interstate kidnapping of a woman who had disappeared. The daughter was scheduled to testify on September 10, 1996. However, on September 9, 1996, a motion to quash subpoena was made by counsel for the daughter and her mother, as well as by separate counsel for the father. *fn6

The motion sought to bar the testimony of the daughter claiming a parent-child privilege which would cover testimony and confidential communications. "[T]he privilege [was] claimed for confidential communications as well as for protection against being compelled to testify in a criminal proceeding". Joint Motion to Quash Subpoena at Para(s) 5.

The district court held a hearing during the morning of September 10, 1996; ordered further briefing due that afternoon *fn7 ; and issued a ruling in the late afternoon denying the motion to quash and ordering the minor daughter to testify before the grand jury that evening.

In the order, the district court reasoned that, because there is "no recognized familial privilege", the appropriate process for determining whether to grant the motion to quash was "to weigh the competing interests of the parties in order to determine whether the anticipated testimony of the minor child is material and nonduplicative, thus tipping the scales toward requiring the testimony". In re Grand Jury, 96-cv-51, at 1 (D. Del. September 10, 1996). The district court concluded that, based on the government's in camera ex parte proffer, "the government's interests in compelling the testimony outweigh the privacy interests asserted by the moving parties" and denied the motion to quash on those grounds. See id. at 2.

Pursuant to the court order, the daughter appeared at court (in an ante-room to the grand jury courtroom) in the evening of September 10, 1995. She refused to testify and was found in contempt. The district court then stayed the imposition of sanctions during the pendency of these appeals. Appeal of the September 10, 1996 order was promptly made in joint motions by mother and daughter, and father on September 13, 1996. *fn8

The district courts had jurisdiction over both the Virgin Islands case and Delaware case under 18 U.S.C. Section(s) 3231. We have appellate jurisdiction over the appeals taken by the intervenors pursuant to 28 U.S.C. Section(s) 1291. See Perlman v. United States, 247 U.S. 7, 12-13 (1918); In re Grand Jury Proceedings (C. Schmidt & Sons, Inc.), 619 F.2d 1022, 1024 (3d Cir. 1980). In addition, in the Delaware case, the daughter appealed on her own behalf after being cited for contempt, providing separate grounds for jurisdiction. See Cobbledick v. United States, 309 U.S. 323 (1940); Alexander v. United States, 201 U.S. 117 (1906); In re Grand Jury Proceedings, 619 F.2d at 1024.

Our review as to all issues, is plenary.


Because we find little merit in the arguments advanced in the Delaware case pertaining to the Schofield affidavit and the in camera proceeding before the district court, we will dispose of these two issues first and without substantial discussion. We then will turn to the more pressing issue of whether we should be the first federal Court of Appeals to recognize a parent-child privilege.

We have held that, when a subpoena for purposes of a grand jury proceeding is challenged, the government is "required to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose." In re Grand Jury Proceedings, 486 F.2d 85, 93 (3d Cir. 1973) (Schofield I); see also In re Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir.) (Schofield II) (identifying this burden of proof as a "three-pronged showing requirement"), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015 (1975). This requirement stems from the Schofield cases (I and II) where the targeted defendant had refused to furnish handwriting exemplars and had refused to allow her fingerprints and photograph to be taken. We have commonly referred to such an affidavit as a Schofield affidavit. *fn9

Appellants in the Delaware case argue that the government's Schofield affidavit *fn10 was insufficient since it was "simply a mere recitation of the requirements, rather than a substantive document and was not sufficient to enable the District Court to properly balance the interests of the parties." Brief of Appellant Doe #1 at 21. They argue further that "The Government's affidavit does not meet. . . [the Schofield II] test. . . It is written in conclusory terms and makes no effort to state any facts at all. . . More should be required where the Government seeks to place a child in a Grand Jury proceeding..." Brief of Appellant Doe #2 at 25.

Our review of the affidavit presented by the government in the present matter satisfies us that it contained the requisite elements as mandated in Schofield II. It "provide[s] a minimum disclosure of the grand jury's purpose" by demonstrating that the daughter's testimony would be "at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose". Schofield II, 507 F.2d at 965 (citing Schofield I, 486 F.2d at 93). These elements satisfy the minimal disclosure requirements of Schofield II.

The district court could, of course, in its discretion, require additional information. See Schofield II, 507 F.2d at 965. Here the district court exercised its discretion by not requiring anything additional in the affidavit, but decided instead to hold a hearing on the government's proffer and to do so in camera and ex parte.

We hold that the government met its burden of proof with regard to the adequacy of the Schofield affidavit, and since the appellants have not demonstrated that the affidavit was insufficient or that there was an abuse of the grand jury process, we are persuaded that the district court did not err in finding the Schofield affidavit proper. See Schofield I, 486 F.2d at 92 ("the party objecting to the enforcement has the burden of making some showing of irregularity"); Schofield II, 507 F.2d at 965 ("the burden is generally on the witness to show abuse of the grand jury process").

Appellants next argue that the district court erred in conducting the in camera hearing ex parte. They contend that they were prejudiced by their inability to respond to the government's proffer and that therefore their due process rights were violated. *fn11 We cannot agree.

District courts have considerable discretion in determining whether additional proceedings -- beyond the Schofield affidavit -- are warranted, including in camera hearings. See Schofield I, 486 F.2d at 93; see generally United States v. Zolin, 491 U.S. 554, 572 (1988).

The purpose of the in camera hearing was to aid the district court in balancing the government's need for the daughter's testimony against the privacy concerns of the daughter and her family. The district court placed a threshold burden on the government to demonstrate the materiality and non-duplicative nature of the daughter's testimony, in order that it could determine whether the testimony was necessary for the grand jury proceedings, or whether instead, it should grant appellants' motion to quash.

The government's proffer was presented in camera and heard ex parte in order to protect the confidentiality of the grand jury proceeding. Ex parte in camera hearings have been held proper in order to preserve the ongoing interest in grand jury secrecy. See generally In re Marc Rich & Co., 707 F.2d 663, 670 (2d Cir.), cert. denied, 463 U.S. 1215 (1983); In re Grand Jury Matter (Catania), 682 F.2d 61, 66 (3d Cir. 1982). The secrecy of the grand jury proceedings in the present matter might have been compromised by divulging the specific questions that the government intended to ask during the daughter's testimony. Judicial supervision and interference with grand jury proceedings should always be kept to a minimum. See, e.g., United States v. Williams, 504 U.S. 36, 50 (1992).

After reviewing the government's in camera proffer, the district court judge denied the motion to quash, having determined that the daughter's testimony would be material and non-duplicative, and that "the government's interests in compelling the testimony outweigh the privacy interests asserted by the moving party". In re Grand Jury, 96-cv-51, at Para(s) 3 (D. Del. September 10, 1996). We hold that the district court did not abuse its discretion in hearing the government's proffer in camera and ex parte. *fn12


The central question in these appeals is one of first impression in this court: should we recognize a parent-child testimonial privilege? Appellants argue that recognition is necessary in order to advance important public policy interests such as the protection of strong and trusting parent-child relationships; the preservation of the family; safeguarding of privacy interests and protection from harmful government intrusion; and the promotion of healthy psychological development of children. See Brief of Appellant in Virgin Islands case at 8-9; Brief of Appellant Doe #1 at 9-14; Brief of Appellant Doe #2 at 10-20. These public policy arguments echo those advanced by academicians and other legal commentators in the myriad of law review articles discussing the parent-child testimonial privilege. *fn13

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 for the following reasons:

(1) The overwhelming majority of all courts -- federal or state -- have rejected such a privilege.

(a) Eight federal Courts of Appeals have rejected such a privilege and none of the remaining Courts of Appeals have recognized such a privilege.

(b) Every state supreme court that has addressed the issue has rejected the privilege, and only four states have protected parent-child communications in some manner. *fn14

(c) No state within the Third Circuit has recognized a parent-child privilege.

(2) No reasoned analysis of Federal Rule of Evidence 501 or of the standards established by the Supreme Court or by this court supports the creation of a privilege.

(3) Creation of such a privilege would have no impact on the parental relationship and hence would neither benefit that relationship nor serve any social policy.

(4) Although we have the authority to recognize a new privilege, we believe the recognition of such a privilege, if one is to be ...

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