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In re Gail D.

Decided: April 16, 1987.

IN THE MATTER OF GAIL D.


On appeal from Superior Court of New Jersey, Law Division, Morris County.

Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Two minors, P.D. and D.D., and their paternal grandfather, Adolph D., appeal by leave granted from the denial of their motions to quash subpoenas requiring them to testify before a Morris County Grand Jury. The Grand Jury was investigating the death of the children's mother, Gail D., the target of the investigation being their father, John D.

After their mother's death, the boys, then unaware that their father was or might become a suspect, were interviewed by the police. Although they gave their statements in the presence of their attorney, they were also unaware that they might have the right to refuse to answer questions under an alleged parent-child privilege. Adolph D. is 84 years old and lives on the same street as his son's family. He is the president and his son is the vice president of a family business; they enjoy a very close relationship. The State contends that the testimony of the two boys and their grandfather are necessary to describe the actions of John D. before and after his wife's death, including his reporting of the incident, and to disclose discussions

they may have had with John D. prior to or after the homicide. There are no allegations that either the boys or Adolph D. were witnesses to the murder.*fn1

The sole issue presented on this appeal is whether the trial judge correctly declined to apply a parent-child privilege, the only basis offered by the witnesses to support their refusal to testify before the grand jury. There are sub-issues which relate to the nature of the claimed privilege and the propriety of a declaration of a parent-child privilege by the judiciary.

There is no need in this case for us to restate fully the arguments for and against a parent-child privilege. A brief synopsis will suffice. A common-law privilege has been judicially recognized in but two jurisdictions, in Nevada by the Federal District Court in In re Agosto, 553 F. Supp. 1298 (D.Nev.1983) (based upon a constitutional right of family privacy), and in New York, In re A. and M., 403 N.Y.S. 2d 375 (App.Div.1978), and People v. Fitzgerald, 101 Misc. 2d 712, 422 N.Y.S. 2d 309 (Cty Ct.1979) (limited to confidential communications). At least two jurisdictions have enacted some form of a parent-child privilege by statute. See Idaho Code § 9-203(7) (Supp.1984) and Minn.Stat. § 595-02(9) (1982).

Against these authorities stands the majority of jurisdictions declining to recognize a parent-child privilege by case law. See United States v. Davies, 768 F.2d 893, 899 (7th Cir.1985), cert. den. U.S. , 106 S. Ct. 533, 88 L. Ed. 2d 464 (1985), (collecting federal authorities), and Three Juveniles v. Commonwealth, 390 Mass. 357, 455 N.E. 2d 1203, 1206 n. 4, cert. den. 465 U.S. 1068, 104 S. Ct. 1421, 79 L. Ed. 2d 746 (1984) (collecting some additional state authority). Indeed, the volume

of law review commentary greatly exceeds that of the cases either declaring or refusing to recognize the privilege.*fn2

In some cases the absence of a parent-child testimonial privilege assertable by the witness has led to anomalous and apparently unjust results. For example, in State v. Delong, 456 A.2d 877 (Me.1983), the victim of an alleged incestuous attack refused to testify against her father and was sentenced to the county jail for contempt. The dissenting justice noted:

I find it anomalous indeed that in this case alleged sexual misconduct it is the young victim of that misconduct who now goes ...


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