The spousal privilege exists as a matter of legislation, but there is a secondary opportunity when it comes to other family members despite the absence of law protecting the relationship. Federal Rule of Evidence 501 allows for the ad hoc creation of privilege based upon “reason and experience.” And the reason and experience reflected in the Fourth Circuit’s Under Seal v. United States (no relation to the singer), by Judge Stephanie Thacker, speaks volumes about the government’s ability to compel a son to testify against his father.
Via the Wall Street Journal Law Blog:
The investigation was launched, according to the opinion, after Maryland sheriff’s deputies responded to a domestic violence 9/11 complaint at the father’s house, where they found drug paraphernalia and a mass of firearms.
The child, known in the opinion as “Doe Jr.,” lived with his father at the time, and moved to quash the request that he testify against his father. Doe Jr. argued he was protected by a so-called “parent-child privilege.” He argued, according to the opinion:
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.
The district court granted the motion, finding that a privilege did exist.
Wrong, says the Circuit. After all, the “child” was 19, and testified that his father, who paid “a substantial portion” of his college tuition, wouldn’t cut him off for testifying, so based upon the circuit’s reason and experience, no harm, no foul.
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.
After all, what more is a father than an ATM?
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. 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.”
Since no one could possibly know what the son’s (wanna bet they had a good chuckle over the Doe, Jr., name?) testimony would be, how could anyone possibly argue that it would be inculpatory to Doe, Sr.?
After all, his “potential testimony” could be that space aliens came down from the heavens and deposited the weapons there without anyone’s knowledge in the middle of the night. It could happen, right, Judge Thacker? I mean, it’s just “arguable” now, so how could anyone possibly know with absolute certainty of the damage a son will be compelled to cause his father until after he testified. Of course, once it is known, it’s too late, but that’s just another unfortunate bit of family life, right?
Moreover, courts have acknowledged time and again the fundamental principle that the public has the right to ‘every man’s evidence,’ 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 was available to testify, save the two minor Doe children. Thus, the ‘sought after testimony is of demonstrated relevancy to the grand jury’s investigation.’
Except, as the district court found, the government’s need for the son’s testimony was merely to “solidify a criminal case,” that final nail in the coffin sort of thing, rather than make or break testimony that would let some heinous guy who possessed 40 weapons (forty! Count ’em!) go free. But icing on the cake doesn’t mean his testimony isn’t of “demonstrated relevancy,” and isn’t that the whole point of a grand jury presentation, because indictments are so very hard to get.
The opinion reflects a fascinating problem with the nature of criminal prosecutions, and the relationship to the evidence needed to indict and convict: The less evidence there is, the more courts bend over to accommodate the government’s need to make their case. The rhetorical game played to pit son against father is easy, particularly when a father loves his son enough to continue to play college ATM despite his son testifying against him under compulsion.
After, what’s the big deal about the relationship of a father and son, when there’s a criminal who must be convicted and the government has no other proof?