In re Inquest Proceedings

In re Inquest Proceedings  (96-108); 165 Vt 549; 676 A.2d 790

[Opinion Filed 21-Mar-1996]


                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-108

                        MARCH TERM, 1996


In re Inquest Proceedings    }        APPEALED FROM:
                             }
                             }        District Court of Vermont,
                             }        Unit No. 2, Chittenden Circuit
                             }
                             }
                             }        DOCKET NO.:  None


       In the above-entitled cause, the Clerk will enter:

       Appellants, parents of a twenty-five-year-old son, appeal from an
  order of the Chittenden District Court that denied their motion to quash an
  inquest subpoena and held them in civil contempt for failing to testify at
  an inquest proceeding.  Appellants assert a testimonial parent-child
  privilege with respect to any incriminating communications imparted to them
  in confidence by their son and to their own observations of any
  incriminating conduct of their son.  We affirm.

       Vermont has not recognized a parent-child privilege either at common
  law or in our rules of evidence.  Indeed, the majority of states and
  federal circuits have refused to recognize such a privilege.  See, e.g.,
  State v. Willoughby, 532 A.2d 1020, 1021 (Me. 1987); see also Note,
  Parent-Child Loyalty and Testimonial Privilege, 100 Harv. L. Rev. 910, 913
  n.20, 915 n.31 (1987) (collecting cases).  Although commentators have
  argued in favor of a parent-child privilege on both constitutional grounds,
  see Note, supra, at 916 n.33, and social-policy grounds, see id. at 915-25,
  the courts that have rejected such a privilege have found no "systematic
  regulation" of protected family interests that might give rise to a
  constitutional claim.  See United States v. Davies, 768 F.2d 893, 899-900
  (7th Cir. 1985), cert. denied, 474 U.S. 1008 (1987).  Nor have those courts
  found that a policy of protecting family bonds outweighs the public's
  interest in uncovering the truth during criminal investigations.  See State
  v. Maxon, 756 P.2d 1297, 1302 (Wash. 1988).

       Appellants rely on two trial-court decisions to support their
  position.  See In re Agosto, 553 F. Supp. 1298, 1325 (D. Nev. 1983); People
  v. Fitzgerald, 422 N.Y.S.2d 309, 310 (Westchester County Ct. 1979).  Agosto
  involved a claim of testimonial privilege asserted by a son with respect to
  a criminal investigation of his father.  In recognizing such a privilege,
  the federal district court found that the government's "important goal in
  presenting all relevant evidence before the court . . . [does not] outweigh
  the family's interest in its integrity and inviolability, which springs
  from the rights of privacy inherent in the family relationship itself."
  Agosto, 553 F. Supp.  at 1325.  The court in Agosto thus did not limit its
  holding to a child's claim of privilege with respect to a parent's
  communications, but rather granted "a parent or child the right to claim
  such a privilege to protect communications made within an indissoluble
  family unit, bonded by blood, affection, loyalty and tradition."  Id.

       Fitzgerald involved a claim of testimonial privilege asserted by a
  father with respect to allegedly incriminating statements made by his
  twenty-three-year-old son.  In recognizing the existence of a parent-child
  testimonial privilege in New York State, the county court found that
  "[c]onfidential communications, by their very nature, in order to foster
  the ongoing confidential parent-child communications between parent and
  child, must remain confidential and private if

  

  the parties so desire, and be without the power of the state to inquire." 
  Fitzgerald, 422 N.Y.S.2d  at 312.  The court thus found that the injury that
  would inure from disclosure of the communications outweighed the State's
  benefit in its disposal of litigation.  Id.

       We decline to follow Agosto and Fitzgerald.  Agosto has not been
  followed by the federal courts that have considered it, including the
  federal appeals court of our own circuit.  See In re Matthews, 714 F.2d 223, 224 (2d Cir. 1983) (terming Agosto a "departur[e] from the traditional
  rule in federal courts that, other than the spousal privilege, there is no
  privilege that permits a person not to testify against family members")
  (citation omitted).  Moreover, the Nevada federal district court in Agosto
  was itself at odds with the settled law of the Ninth Circuit.  See United
  States v. Penn, 647 F.2d 876, 885 (9th Cir. 1980) ("There is no judicially
  or legislatively recognized general `family' privilege."), cert. denied,
  449 U.S. 903 (1980).

       Likewise, Fitzgerald has not been followed by any New York court
  decision, and has since been limited by People v. Harrell, 450 N.Y.S.2d 501, 504 (N.Y. App. Div. 1982) ("[C]ommunications between parent and child
  do not enjoy the protection of the Sixth Amendment, nor are they privileged
  either under common law or by statute."), aff'd, 449 N.E.2d 1263, 1264
  (N.Y. 1983), and has been overruled on its facts by People v. Johnson, 644 N.E.2d 1378, 1379 (N.Y. 1994) ("[A] parent-child testimonial privilege
  (which defendant urges be adopted to preclude his mother's testimony) would
  not even arguably apply in that defendant was 28 years old at the time of
  the conversation with his mother . . . .").

       Our own cases have "stress[ed] the care with which we must approach
  any request to create a new privilege."  Douglas v. Windham Superior Court,
  157 Vt. 34, 39, 597 A.2d 774, 777 (1991).  "Because of their interference
  with truthseeking, privileges are strongly disfavored."  Id. at 40, 597 A.2d  at 777.  Accordingly, we have adopted Dean Wigmore's four-part test
  for recognition of a testimonial privilege, which requires that:

     "(1)The communications must originate in a confidence that they will
      not be disclosed.
      (2)This element of confidentiality must be essential to the full and
      satisfactory maintenance of the relation between the parties.
      (3)The relation must be one which in the opinion of the community
      ought to be sedulously fostered.
      (4)The injury that would inure to the relation by the disclosure of the
      communications must be greater than the benefit thereby gained
      for the correct disposal of litigation."

  Id. at 40, 597 A.2d  at 777-78 (quoting 8 Wigmore on Evidence  2285, at 527
  (McNaughton ed. 1961)).  The party seeking creation of the privilege has
  the burden of satisfying the four Wigmore conditions, id. at 41, 597 A.2d 
  at 778, and must satisfy all four conditions before the privilege will be
  recognized.  Id. at 40, 597 A,2d at 778.

       In the instant matter, appellants and the State are in agreement on
  the first and third factors:  that the communications at issue originated
  in confidence, and that the parent-child relationship is one that should be
  sedulously fostered.  The parties disagree, however, whether maintaining
  the confidentiality of the communications is essential to the full and
  satisfactory maintenance of the parent-child relationship, and whether the
  injury to the parent-child relationship that would result from disclosure
  outweighs the public benefits to be gained.

       We conclude that appellants have failed to meet their burden on the
  second and fourth factors of the Wigmore test.  Appellants' son, although
  living at home and employed in his father's business, is nonetheless an
  adult.  The record suggests that the son suffers from dyslexia and
  associated learning disabilities, but there is no allegation or indication
  that he is incompetent

 

  to make life decisions for himself.  Our laws recognize the special
  circumstances arising when minors or incompetent adults are involved in
  delinquency or criminal proceedings.  See, e.g., 33 V.S.A.  5524 (in
  delinquency proceeding, out-of-court confession of juvenile is insufficient
  to support adjudication of delinquency unless corroborated in whole or in
  part by other substantial evidence); 13 V.S.A.  4816(c) (no statement made
  in course of court-ordered competency examination shall be admitted as
  evidence in any criminal proceeding).  But such circumstances are not
  present in the instant matter.  The relationship between an adult child and
  a parent is not one requiring confidentiality for its full and satisfactory
  maintenance.  It is not this Court's, or any court's, duty to encourage
  adult children to share confidences with their parents; nor is it a court's
  duty to create an evidentiary rule that protects such confidences from
  disclosure when they are shared with parents.  Accordingly, the second
  factor of the Wigmore test is not present under the facts of this case.

       Nor is the fourth factor of the Wigmore test met on the facts at issue
  here.  Harm may inure to the relationship between an adult child and a
  parent when the parent discloses the adult child's confidences, and this
  harm may vary depending on the closeness of the particular family. But we
  do not agree on the present record that such harm outweighs the public
  interest in seeking the truth within the context of a criminal
  investigation.

       As appellants point out, we have recognized that "the freedom of
  children and parents to relate to one another in the context of the family,
  free of governmental interference, is a basic liberty long established in
  our constitutional law."  In re N.H. (Juvenile), 135 Vt. 230, 236, 373 A.2d 851, 856 (1977); see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).  N.H.
  involved the disposition of custody of a child found to be in need of care
  and supervision (CHINS).  While acknowledging the "fundamental liberty"
  involved in the parent-child relationship, we also noted that our CHINS
  statute "expressly provide[s] that a child be separated from its parents
  `only when necessary for his welfare or in the interests of public
  safety.'"  Id. (quoting 33 V.S.A.  631(a)(3)) (current version at 33
  V.S.A.  5501(a)(3)) (emphasis added).   Similarly, in Meyer, the United
  States Supreme Court recognized that the rights "to marry, establish a
  home, and bring up children" are among "those privileges long recognized at
  common law as essential to the orderly pursuit of happiness of free men." 
  Meyer, 262 U.S.  at 399.  Nevertheless, the Court went on:  "The established
  doctrine is that this liberty may not be interfered with, under the guise
  of protecting the public interest, by legislative action which is arbitrary
  or without reasonable relation to some purpose within the competency of the
  State to effect."  Id. at 399-400 (emphasis added).  Thus, even in N.H.
  and Meyer, both of which involved minor children, the courts acknowledged
  that public interests could outweigh private family interests.

       The supreme courts of other states, when called upon to consider a
  parent's interest in preserving a child's confidential communications in
  light of the privacy interests recognized by the United States Supreme
  Court in Meyer and its progeny, have held that an order to appear and
  testify did not implicate interests "of core importance to the home and
  family."  Willoughby, 532 A.2d  at 1022; accord Maxon, 756 P.2d  at 1301.  In
  Maxon, the Washington Supreme Court declared:

       "The Constitution does not mandate recognition of a parent-child
  privilege.  The right of privacy line of cases gives no indication that the
  interest in confidential communications between parent and child qualifies
  as a fundamental right for the purpose of substantive due process analysis. 
  Any infringement of this interest caused by nonrecognition of a
  parent-child privilege is indirect and incidental.  At any rate, the
  fundamental state interest in the integrity of the fact-finding process is
  sufficiently compelling to override the interest in the privacy of the
  parent-child communications."

 

  Maxon, 756 P.2d  at 1301 (quoting Comment, Parent-Child Privilege: 
  Constitutional Right or Specious Analogy?, 3 U. Puget Sound L. Rev. 177,
  210-11 (1979)).

       We agree with the Maine and Washington courts that the confidentiality
  interest asserted by appellants in the instant matter does not implicate a
  constitutional liberty interest.  We need not decide today, however,
  whether a parent's interest in protecting a minor or incompetent child's
  confidential communications or conduct could ever outweigh the public
  interest in the criminal fact-finding process.  Because appellants' son is
  a competent adult, we find that the public's interest in securing and
  preserving valuable evidence in a criminal investigation outweighs the
  indirect intrusion into family life resulting from a testimonial
  obligation.

       On the facts presented, therefore, we decline appellants' invitation
  to create a parent-child privilege that would permit appellants to refuse
  to disclose incriminating statements or conduct revealed to them in
  confidence by their son.

       Affirmed; mandate to issue forthwith; cause remanded for new order to
  be issued by the district court.


                                BY THE COURT:


                                _________________________________________
                                Frederic W. Allen, Chief Justice


                                _________________________________________
                                Ernest W. Gibson III, Associate Justice


                                _________________________________________
                                John A. Dooley, Associate Justice


                                _________________________________________
                                James L. Morse, Associate Justice
[X]  Publish

[ ]  Do Not Publish             _________________________________________
                                Denise R. Johnson, Associate Justice