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In re Three Children

December 3, 1998

IN RE: THREE CHILDREN


The opinion of the court was delivered by: William H. Walls, U.S.D.J.

FOR PUBLICATION

OPINION

Walls, District Judge

Counsel for the Three Children moves, on religious grounds, to quash subpoenas which direct the children to testify before a federal grand jury. Having heard oral argument, the Court denies the motion.

FACTS

The Three Children are followers of the Orthodox Jewish faith and have been subpoenaed to testify before a grand jury which is investigating their parent as its target. Primarily, the government desires to obtain from them evidence relating to their activities as employees in their parent's business ventures. The Three Children claim that they cannot give such testimony because "the Talmud . . . prohibit[s] and disqualif[ies] the testimony of relatives in reference to legal proceedings in a Beis Din, a court of Jewish law." (Rabbi's Opinion, Ex. A at 2.) And to support their position, they have provided rabbinical opinions including one of a rabbi who declared that he "could not find any precedent in rabbinic responsa permitting a child to testify against a parent in Jewish Courts of law." (Rabbi's Opinion, Ex. A at 2.) A consulted rabbi in Israel "concurred, requesting that it be conveyed to the authorities here that the rabbis do no permit the children to testify as a matter of Jewish law." (Rabbi's Opinion, Ex. A at 4.) The testimony of a child against a parent is "so serious that penitence does not expunge it, Yom Kippur (the Day of Atonement, which has the power to atone for all other sins) cannot atone for it, and suffering will not expiate it." (Rabbi's Opinion, Ex. A at 4.) The Three Children move to quash the subpoena on the ground that the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., requires the government to demonstrate a compelling need for such testimony before it may substantially burden their free exercise of religion. They argue that the government has not met its burden.

DISCUSSION

A. Whether There is a Parent-Child Testimonial Privilege

The Three Children argue that they should not be compelled to testify against their parent because their religious faith prohibits such testimony. They ask this Court to recognize a privilege which would excuse them from being required to testify against their parent. There are two possible privileges upon which the Three Children could rely: a general parent-child testimonial privilege and a privilege based on religious beliefs.

There is no general privilege which prevents a child from being required to testify against his/her parent or vice versa. Federal Rule of Evidence 501 provides that privileges in federal court are to be "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." "Federal common law recognizes a privilege only in rare situations." In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997). Recently, the Third Circuit joined the eight other circuits which have addressed the issue in declining to recognize a parent-child privilege. In re Grand Jury, 103 F.3d 1140 (3d Cir. 1997), cert. denied sub nom. Roe v. United States, 117 S.Ct. 2412, 138 L.Ed.2d 177 (1997). The Third Circuit observed that "no federal Court of Appeals and no state supreme court has [yet] recognized such a privilege." 103 F.3d at 1146. It is well-settled that here there is no general parent-child testimonial privilege which the Three Children may invoke.

B. Whether the Religious Freedom Restoration Act Compels the Court to Establish a Parent-Child Testimonial Privilege

This Court should recognize a parent-child testimonial privilege based upon their religious beliefs, the children urge. They contend that if compelled to testify against their parent before the grand jury, they will violate a fundamental tenet of Jewish law. They maintain that under RFRA, the government cannot so burden their free exercise of religion without demonstrating a compelling governmental interest which it has not done.

1. The Religious Freedom Restoration Act

The Supreme Court's decision in Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, "virtually eliminated the requirement that government justify burdens on religious exercise imposed by laws neutral towards religion." 42 U.S.C. ยง 2000bb(a). In response to this decision, Congress passed RFRA which directs "governments [to] not substantially ...


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