News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Supreme Judicial Court Holds That the Parental-Child Privilege Does not Preclude Parents from Testifying as Defense Witnesses in Criminal Cases Brought Against Their Minor Children

pexels-any-lane-5727783-scaledAs part of the criminal justice reform bill in 2018, the Massachusetts legislature passed a statute creating a limited parent-child privilege so that minor children who may be in legal trouble can seek advice from their parents without having to worry that their parents could be witnesses against them in a criminal case. Similar protections exist for spouses, who cannot be compelled to testify against one another. Although the statute does not protect adult children who speak with their parents, it fills an important gap for juveniles, particularly since they have a right to speak with an “interested adult” before being interrogated by police.

In the recent case of Commonwealth v. Vigiani, the Supreme Judicial Court clarified an equally important question: does the statute prevent a juvenile from calling his or her parent as a witness? A related “disqualification” forbids private communications between spouses from being used as evidence even if both spouses wanted to testify about them, and the Commonwealth had argued that the same applied to the new parent-child statute. However, the Court held that the statute only prohibits a parent from testifying “against” their child, meaning that the juvenile could call the parent as a defense witness but the Commonwealth could not call them on behalf of the prosecution.

In Vigiani, the defendant (who was a minor at the time) was accused of being involved in a shooting and went with his mother to a police station for questioning. According to his mother, he then invoked his right to counsel, which should have terminated any interrogation at that time. However, she said that the police promised that if she encouraged her son to speak with them, he would receive lenient treatment and would be allowed to leave. She did convince the defendant to talk to the police, and as a result of that conversation, he was indicted for unlawfully carrying a firearm. The defendant moved to suppress his statements to police and sought to have his mother testify, but the Commonwealth tried to prevent her testimony based on the parent-child privilege statute.

The Supreme Judicial Court rejected that argument. The Court noted that the legislature has created different types of privileges and disqualifications, and analyzed the language of the parent-child statute compared to the related provisions for spouses. It focused on the specific framing of the parent-child privilege: that “[a] parent shall not testify against the parent’s minor child.” The Court found the word “against” to be particularly important because a witness called by the prosecution is usually understood to testify against the defendant, but a witness called by the defense testifies for the defendant. The Court also looked at the purpose of the statute to determine whether it was intended to prohibit parents from testifying on behalf of their children. According to the statements of the legislators who sponsored the bill, its purpose was to protect the parent-child relationship and prevent families from being torn apart if one family member was forced to testify against another. If the Commonwealth’s interpretation of the statute were correct, then a parent like the mother in Vigiani would have to sit silently, unable to help her son in his criminal case because the law prevented her from giving relevant evidence. The Court found that this would not make sense and would be contrary to the statute’s purpose. Accordingly, it is the minor child’s option whether to call a parent as a witness, while the Commonwealth has no such option. If the child does call the parent as a witness, then the Commonwealth would be able to cross-examine the parent, which could raise uncomfortable questions. But defendants have to make this kind of tradeoff all the time, with the assistance of counsel to assess the costs and benefits of doing so.

The Court’s decision is consistent with the intent of the Legislature to enable juveniles to seek advice and input from their parents and protect the parent-child relationship. However, both the statute and the Court’s decision are limited in some ways. In particular, the statute’s reference to a “minor child” means that it only applies to defendants under the age of 18. Since the same reform package that included the parent-child privilege also determined that charges against 18-year-olds should be heard in Juvenile Court rather than adult criminal court, it is odd that 18-year-olds who are treated as juveniles under the law are not entitled to the same protections as other juveniles when they seek advice from their parents. In our experience, young adults often involve their parents when faced with legal problems, and there would be no less strain on the family relationship if a parent of a college student were forced to testify against them and disclose statements that were made in confidence within the family relationship. The Legislature should close the statute’s gap for 18-year-olds, and should also consider expanding the scope of the parent-child privilege beyond just juveniles. The 2018 reforms were strong positive steps, but there is more to be done to make the criminal justice system more fair and just for young people accused of crimes.

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