concurring and dissenting.
I write separately because I am convinced that the testimonial privilege issue raised by the Virgin Islands appeal is substantially different from that presented in the Delaware appeals1 and should be resolved in favor of the targeted son. The Virgin Islands appeal, which challenges the denial of a motion to quash a grand jury subpoena, requires that we confront an issue of first impression in our circuit: should we make available to a parent and child an evidentiary privilege which could be invoked to prevent compelling that parent to testify regarding confidential communications made to the parent by his child in the course of seeking parental advice and guidance?2 It appears that this precise question is one of first impression in the federal courts.
Because I conclude that the public good at issue, the protection of strong and trusting parent-child relationships, outweighs the government's interest in disclosure, I would exercise the authority granted to the federal courts by Congress under Rule 501 of the *546Federal Rules of Evidence and would recognize a limited privilege. Accordingly, I respectfully dissent.
I.
This case, unlike most which we consider, does not require that we apply the law as it exists with respect to testimonial privilege. Instead, we are asked to determine what the law in this area ought to be. While most courts have declined to recognize a parent-child testimonial privilege, they have done so in contexts far different from the one presented here. I am convinced that this is an appropriate case in which to recognize and set parameters for a limited privilege. Doing so is critical to several important public policy interests such as the "protection of strong and trusting parent-child relationships and the preservation of the sanctity of the family. . . ." Appellant's Brief at 8. The recognition of a parent-child privilege is essential to "the healthy psychological development of children and to the development of society as a whole"; compelling a parent to testify adversely to a child is "repugnant to social sensibilities' and contrary to a democratic view of decency." Wendy Meredith Watts, The Parent-Child Privilege: Hardly a New or Revolutionary Concept, 28 Wm. & Mary L. Rev. 583, 611-13 (1987).
These and other related public policy arguments have been advanced in a spate of articles by academicians and other legal commentators who, virtually uniformly, favor incorporating a parent-child testimonial privilege into the fabric of the law.3 The courts, however, federal and state, have been reluctant to make these policy arguments the foundation for a "new" privilege. In the circumstances presented here, I do not share that reluctance and am convinced that where compelled testimony by a parent concerns confidential statements made to the parent by his child in the course of seeking parental advice and guidance, it is time to chart a new legal course.
*547II.
A.
Any inquiry concerning the federal court's extension of testimonial privilege necessarily begins with Rule 501 of the Federal Rules of Evidence.4 Under this Rule, as interpreted by the Supreme Court in United States v. Trammel, 445 U.S. 40, 47, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980), the federal courts are authorized to "develop[] . . . testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted ... in the light of reason and experience." In enacting Rule 501, Congress specifically declined to restrict development in the law of privilege to the legislative realm and declined to limit the range of possible privileges. Congress instead crafted Rule 501 in order to "provide the courts with the flexibility to develop rules of privilege on a case-by-case basis." It was Congress' intent "to leave the door open to change." Id.
The courts' role in fostering evolution in the area of testimonial privilege was reinforced recently by the Supreme Court in Jaffee v. Redmond, 135 L. Ed. 2d 337, 116 S. Ct. 1923, 1996 WL 315841 at * 4 (U.S.) (footnote omitted):
The Senate Report accompanying the 1974 adoption of the [Federal Rules of Evidence] indicates that Rule 501 "should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship should be determined on a case-by-case basis." S. Rep. No. 93-1277, p. 13 (1974). The Rule thus did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather *548directed federal courts to "continue the evolutionary development of testimonial privileges." Trammel v. United States, 445 U.S. 40, 47, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980); see also University of Pennsylvania v. EEOC, 493 U.S. 182, 189, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990).
According to the Court, "the common-law principles underlying the recognition of testimonial privileges can be stated simply." Id. Evidentiary privileges are "exceptions to the demand for every man's evidence" and should "not be lightly created nor expansively construed, for they are in derogation of the search for the truth." United States v. Nixon, 418 U.S. 683, 709-10,41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Despite the strictures of this general rule, the federal courts may be justified in recognizing a testimonial privilege where that privilege "promotes sufficiently important interests to outweigh the need for probative evidence." University of Pennsylvania v. EEOC, 493 U.S. 182,189,107 L. Ed. 2d 571,110 S. Ct. 577 (1990) (quoting Trammel, 445 U.S. at 51). This is especially appropriate where, as here, there is no indication that Congress, in enacting Rule 501 — or in any other context — has evaluated the competing concerns associated with a particular privilege and has rejected that privilege. See University of Pennsylvania v. EEOC, 493 U.S. 182, 189, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990). It is abundantly clear that under Rule 501 and the interpretive caselaw federal courts have authority in appropriate circumstances to modify the availability and scope of testimonial privileges and to recognize new common law privileges.
B.
When a federal court considers extending the scope of a testimonial privilege or recognizing a new privilege, Rule 501 requires that the court engage in a balancing process, weighing the need for confidentiality in a particular communication against the need for relevant evidence in a criminal proceeding. Trammel, 445 U.S. at 50. I am convinced that the public good derived from a child's ability to communicate openly with and to seek guidance from his or her parents is of sufficient magnitude to transcend the judicial system's *549interest in compelled parental testimony.5 Recognizing that "our authority is narrow in scope and [to] be exercised only after careful consideration in the face of a strong showing of need for the privilege," In re Grand Jury Proceedings, 918 F.2d 374, 383 (3d Cir. 1990), I stress that the privilege which I would recognize is a limited one, applying only to compelled testimony concerning confidential communications made to a parent by his child in the course of seeking parental advice. Although this case might have been more compelling had the son been a minor at the time of his statements to his father, I would not adopt a bright-line rule applicable only to those who have not reached legal majority. In order to advance the policy interests which the targeted son articulated, I would prefer to leave the particular factors to be considered in determining application of the privilege to development on a case-by-case basis. I expect that these factors would include such variables as age, maturity, whether or not the child resides with the parents, and the precise nature of the communications for which the privilege is claimed. The privilege would apply to situations in which it is invoked by both parent and child; this case does not require that we confront applicability of the privilege where it is invoked by the parent or the child alone.
*550The goal in recognizing this limited privilege would not be to guarantee confidentiality per se but to shield parent-child relationships from the devastating effects likely to be associated with compelled testimony. As one commentator has written:
To conceive of . . . privileges merely as exclusionary rules, is to start out on the wrong road and, except by happy accident, to reach the wrong destination. They are, or rather by chance of litigation may become, exclusionary rules; but this is incidental and secondary. Primarily they are a right to be let alone, a right to unfettered freedom, in certain narrowly prescribed relationships, from the state's coercive or supervisory powers. . . .
Louisell, Confidentiality, Conformity, and Confusions: Privileges in Federal Court Today, 31 Tul. L. Rev. 101, 110-11 (1956). An effective parent-child relationship is one deserving of protection. It rests upon a relationship of mutual trust where the child has the right to expect that the parent will act in accordance with the child's best interest.6 If the state is permitted to interfere in that relationship by compelling parents to divulge information conveyed to them in confidence by their children, mutual trust, and ultimately the family, are threatened.
While I am aware that the availability of even this limited parent-child privilege may, in some rare circumstances, complicate a criminal fact-finding proceeding, I am convinced that the risk is one well worth bearing. "To reach the truth at the cost of the parent-child relationship would be to win the battle and lose the war." Wendy Meredith Watts, The Parent-Child Privileges: Hardly a New or Revolutionary Concept, 28 Wm. & Mary L. Rev. 583, 609 *551(1987). This is especially true where, as here in the Virgin Islands case, the parent is not a co-defendant or a co-witness to a criminal act, and is not alleged to be hiding the instrumentality or the fruits of a criminal act.
I cannot agree with the majority that testimonial privileges must be regarded as automatic impediments to the effectiveness of the judicial system. In limited circumstances these privileges are critical to important policy interests. I am convinced, as was the district court, that "youngsters today are increasingly faced with excruciatingly dangerous and difficult situations" and that "the law ought to do everything possible to encourage children to confide in their parents and turn to [them] in times of trouble." In re Grand Jury Proceeding, Mise. No. 95-009, at 9,10 (D.V.I. June 19, 1995).
C.
The spousal privilege is the only testimonial privilege based on a familial relationship to have received general acceptance in the federal courts.7 See In re Erato, 2 F.3d 11, 16 (2d Cir. 1993). In arguing that we should uphold the father's claim of privilege in this case, I am motivated by many of the same concerns which underlie the spousal privilege.8 The policy advanced by the *552spousal privilege "is the protection of the marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails." Wolfle v. United States, 291 U.S. 7, 14, 78 L. Ed. 617, 54 S. Ct. 279 (1934). Similar concerns are present here:
Ideally, the child-parent relationship encompasses aspects of the marital relationship — mutual love, affection, and intimacy . . . the parent providing emotional guidance and the child relying on him for help and support. . . . As in the marital . . . relationship, this optimal child-parent relationship cannot exist without a great deal of communication between the two. . . . Manifestly, the parent's disclosure of such information to a third party, . . . would deter continued communication between child and parent.
Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L. Rev. 771, 781 (1979). The reasoning of the district court in In Re Agosto, 553 F. Supp. 1298, 1325 (D. Nev. 1983), is also instructive:
There is no reasonable basis for extending a testimonial privilege for confidential communications to spouses, who enjoy a dissoluble legal contract, yet denying a parent. . . the right to claim such a privilege to protect communications made within an indissoluble family unit, bonded by blood, affection, loyalty, and tradition. And further, if the rationale behind the privilege of a witness-spouse to refuse to testify adversely against his or her spouse in a criminal proceeding serves to prevent the invasion of the harmony and privacy of the marriage relationship itself, then affording the same protection to the parent-child relationship is even more compelling.
The Court in Trammel also recognized that privileges "affecting marriage, home and family relationships," 445 U.S. at 48, are *553especially worthy of consideration.9 Within the family structure but beyond the marital partners, I can think of no relationship more fundamental than that between parent and child. Society has an interest in protecting the family structure; the parent-child relationship is amenable to identification and segregation for special treatment.
D.
The parent-child privilege is not a novel or radical concept. "Both ancient Jewish law and Roman law entirely barred family members from testifying against one another based on a desire to promote the solidarity and trust that support the family unit. The Napoleonic Code also prevented the disclosure of confidences between family members." J. Tyson Covey, Note, Making Form Follow Function: Considerations in Creating and Applying a Statutory Parent-Child Privilege, 1990 U. Ill. L. Rev. 879, 883. The civil law countries of Western Europe including France, Sweden, and the former West Germany also recognize a privilege covering compelled testimony from family members. Id.
Three states (Idaho, Massachusetts and Minnesota) have adopted some variant of the parent-child privilege by statute,10 and one state, New York, has judicially recognized the privilege. In *554re A&M, 403 N.Y.S.2d 375, 61 A.2d 426 (1978).11 Furthermore, our review of the caselaw convinces us that although a number of courts have declined to recognize a parent-child privilege in one form or another, the vast majority of those cases, indeed all of the federal cases, are distinguishable, on significant grounds, from the case before us.
Most cases discussing the availability of a parent-child privilege have done so in the context of whether a child should be compelled to testify against a parent.12 As the court of appeals acknowledged in In re Grand fury Proceedings (Starr), 647 F.2d 511, 513 n.4 (5th Cir. *5551981), cases involving testimony by a child regarding activities of or communications by a parent are not as compelling as cases "involving confidential communications from the chid to the parent" because the former do not implicate "the desire to avoid discouraging a child from confiding in his parents." A similar theme is echoed in Three Juveniles v. Commonwealth, 390 Mass. 357, 455 N.E.2d 1203, 1206 (Mass. 1983), cert. denied sub nom Keefe v. Massachusetts, 465 U.S. 1068, 79 L. Ed. 2d 746, 104 S. Ct. 1421 (1984): . "Because a parent does not need the advice of a minor child in the same sense that a child may need the advice of a parent, the case for a testimonial privilege as to confidential communications from parent to child seems weaker than the case as to such a communication from child to parent." This distinction separates the Virgin Islands and Delaware appeals.
A second set of cases refusing to recognize a parent-child privilege involve children who were significantly older than the son in this case and did not implicate communications seeking parental advice and guidance.13 As the Court of Appeals for the Second Circuit has recognized, these cases, too," present[] a weaker claim for recognition of a parent child privilege. . . ." In re Erato, 2 F.3d 11,16 (2d Cir. 1993).
Several cases evaluating a claim of privilege did not have the benefit of the balancing process embodied in Rule 501 of the Federal Rules of Evidence14 and others did not involve confiden*556tial communications made by a child to a parent.15 Finally a number of cases rejecting the parent-child privilege involved defendants who sought to bar voluntary testimony offered by their parents.16 These cases do not present the threat to the family relationship posed in the case before us. The importance of this distinction was summarized by the Illinois Supreme Court in People v. Sanders, 99 Ill. 2d 262, 457 N.E.2d 1241, 1246, 75 Ill. Dec. 682 (Ill. 1983). The court in Sanders wrote that cases in which the parent-child privilege has been upheld have
relied heavily upon conjecture that a family member who is forced to testify against her will would face the unpleasant choice of aiding the criminal conviction of a loved one, perjuring herself on the stand, or risking a citation for contempt of court for refusing to testify and the belief that the harshness of this choice has the effect of undermining the family relationship. Such a fear is without foundation where, as in this case, the witness who is *557a family member volunteers her testimony. The voluntariness of the act is strong evidence that the choice the witness faced was an easy one for her to make.
III.
While there is a substantial body of authority in which courts have declined to recognize a parent-child privilege, none of the cases addresses under Rule 501 of the Federal Rules of Evidence the issue of a parent's compelled testimony with respect to confidential advice-seeking statements made to the parent by his teenage son.17 The facts underlying the Virgin Islands appeal are critical to my conclusion that we should recognize a narrowly circumscribed parent-child privilege. The interests involved in protecting the communications at issue here are far stronger than *558those involved in previous cases. Consequently, the result which I would reach is not as radical as it might initially appear.
IV.
I am convinced that the public good to be derived from a circumscribed parent-child testimonial privilege outweighs the judicial system's interest in compelled parental testimony. I would, therefore, recognize a privilege which could be invoked by a parent and child together to bar compelled testimony concerning confidential communications made to that parent by his child in the course of seeking parental advice and guidance. I would reverse the district court's order in the Virgin Islands matter denying the motion to quash the grand jury subpoena.
V.
Although I am content with the disposition of the privilege issue in the Delaware matters, I must comment on what is, to me, a disturbing aspect of these appeals.
Appellants in the Delaware cases attack the propriety of the subpoenas issued to the minor, arguing that the government failed to make the minimum disclosure of the grand jury's purpose required by our decisions in In re Grand Jury Proceedings (Schofield I), 486 F.3d 85 (3d Cir. 1973), and In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966 (3d Cir. 1975). These cases establish that a party seeking enforcement of a grand jury proceeding is required to make
a minimum showing by affidavit . . . that each item sought was (1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose.
507 F.2d at 966. While the information supplied in the affidavit may be "scant," it must give "the trial judge some basis for determining that the three-pronged test. . . has been met." Id. at 967.
It would be an overstatement to characterize the information contained in the affidavit submitted here as even "scant" as the affidavit contains nothing at all beyond a mere recitation of the Schofield requirements. Our Schofield decisions, if they mean anything at all, require something, albeit a small something, more.
*559My concern over erosion of the Schofield requirements is obviated in this case by the further proceedings conducted by the district court to ensure the need for the minor daughter's testimony. Were it not for these further proceedings, I am convinced that reliance on the affidavit as it was written would have been error.
In the Virgin Islands appeal, a father has been subpoenaed to testify regarding communications made to him by his teenaged son. In the Delaware appeals, on the other hand, a teenaged daughter has been subpoenaed to give testimony, based on her own knowledge, which could implicate her father in a crime; confidential communications between parent and child are not alleged in the Delaware appeals. As I will explain, the privilege question to be resolved in the Virgin Islands appeal focuses on the confidential communication made by a child in the course of seeking parental advice. Consequently, it is more narrow and more compelling than that presented in the Delaware appeals.
The majority contends that the record in the Virgin Islands matter "reveals no evidence that the son sought advice from his father." (Typescript at 40 n.25.) This is incorrect. In the Motion to Quash filed by the son, the son refers to the fact that he "spoke privately with his father, seeking his father's counsel about the matters which are the subject of the Grand Jury's investigation."
See Maj. Op. (Typescript at 13 n.11).
Rule 501 states:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress, or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principle of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of witness, person, government, state or political subdivision thereof shall be determined in accordance with state law.
In addition to the balancing test laid out in Trammel, Dean Wigmore has suggested a four-part test for determining whether or not a particular testimonial privilege should be recognized. In order for a privilege to obtain: (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 society, ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. 8 John Henry Wigmore, Evidence § 2285 (J. McNaughton rev. ed. 1961); see also In re Grand Jury Investigation, 918 F.2d 374, 383-84 (3d Cir. 1990) (weighing Dean Wigmore's four prerequisites). I part company with the majority in the application of this test and am convinced that the factors analyzed under the Rule 501 balancing test are sufficient to satisfy the Wigmore test as well. The first condition of the Wigmore test is satisfied in that the parent-child relationship is one which naturally gives rise to confidential communication. Second, confidentiality underlies the parent child relationship; mutual trust encourages children to consult parents for guidance with the expectation that the parent will, in appropriate circumstances, honor the confidentiality of those statements. Third, the family unit is the building block of our society and the parent-child relationship is at the core of that family unit. Finally, although the majority disputes this point, I am convinced that the damage resulting from compelling a parent to testify against his child, in most if not all cases, outweighs the benefit associated with correct disposal of the litigation.
While it is true, as the majority says, that few children are likely to be aware of a privilege per se, there is, in any event, a certain expectation that this information will not be disclosed.
As the majority points out, there may be circumstances in which a parent, having heard communications from a child, decides that it is in the child's best interest that those communications be divulged. The privilege which I advocate would not interfere with that parental judgment. Presumably, if the parent is indeed acting in the child's best interest, disclosure will not ultimately threaten the family relationship which I seek to protect. Furthermore, if the parent is willing to disclose information which may harm the child, the relationship is already beyond the need for protection.
Four relationship-based privileges have received federal court recognition: those between penitent and priest, attorney and client, physician and patient, and, most recently, the privilege between therapist and patient. See Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980), and Jaffee v. Redmond, 135 L. Ed. 2d 337, 116 S. Ct. 1923, 1996 U.S. LEXIS 3879, 1996 WL 315841 (U.S.).
Some commentators have sought to analogize the parent-child privilege to the more widely recognized professional testimonial privileges such as that between attorney and client, priest and penitent, and physician and patient:
The parent-child relationship is analogous to the privileged professional relationships in many respects. As the professional exercises his skill in the delicate relationship with his client, the parent plays a unique and sensitive role in the life of his "client," the child. In fulfilling this role, the parent must assume many of the same responsibilities as professionals. The parent, for example, often must serve as the child's legal advisor, spiritual counselor, and physical and emotional health expert. The necessity for confidentiality is comparable to that within the professional relationships. Like the attorney, priest, or psychiatrist, parents must establish an atmosphere of trust to facilitate free and open communication.
Gregory W. Franklin, Note, The Judicial Development of the Parent-Child Testimonial Privilege: Too Big for its Britches? 26 Wm. & Mary L. Rev. 145, 151 (1984).
While the majority opinion distinguishes the privilege which I would recognize from those involving professional relationships, it does not address the parallels which exist between a parent-child privilege and the spousal privilege. In Trammel v. United States, 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980), the Supreme Court held that in federal courts, the spousal privilege belongs solely to the spouse who is a witness. "The court concluded that the justification for the privilege — prevention of marital discord — was not served by allowing the defendant spouse to prevent the voluntary testimony of the witness spouse .... The court noted that state law was moving toward granting the privilege solely to the witness. . . ." Developments in the Law -Privileged Communications, 98 Harv. L. Rev. 1450, 1568 (1985). The goal of protecting family relationships is paramount in the case now before us; the privilege which I would recognize is based on concerns broader than the guarantee of confidentiality. As the caselaw with respect to spousal privilege establishes, a privilege may indeed advance these broader familial interests without requiring that the child be allowed to silence a parent who is willing to testify
The Idaho statute limits the privilege to communications by minors to their parents. It provides in relevant part:
Any parent, guardian or legal custodian shall not be forced to disclose any communication made by their minor child or ward to them concerning matters in any civil or criminal action to which such child or ward is a party. Such matters so communicated shall be privileged and protected against disclosure ....
*554Idaho Code § 9-203(7) (1990 & Supp. 1995).
In Massachusetts, a minor child is deemed incompetent to testify against her parent in a criminal proceeding:
An unemancipated, minor child, living with a parent, shall not testify before a grand jury, trial of an indictment, complaint or other criminal proceeding, against said parent, where the victim in such proceeding is not a member of said parent's family and who does not reside in the said parent's household.
Mass. Gen. L. ch. 233, § 20 (1986 & Supp. 1996).
Minnesota also recognizes a limited parent-child (minor) privilege:
A parent or the parent's minor child may not be examined as to any communication made in confidence by the minor to the minor's parent. A communication is confidential if made out of the presence of persons not members of the child's immediate family living in the same household.
Minn. Stat. § 595.02(l)(i) (1988 & Supp. 1996).
The decision in this case rested on constitutional grounds. See also People v. Fitzgerald, 101
Misc. 2d 712, 422 N.Y.S.2d 309, 314 (Westchester County Ct. 1979) (parent-child privilege flows from U.S. and New York State Constitutions).
See, e.g., Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244 (10th Cir.), cert. denied, 488 U.S. 894, 102 L. Ed. 2d 223, 109 S. Ct. 233 (1988); United States v. Davies, 768 F.2d 893 (7th Cir.), cert. denied sub nom. Kaprelian v. United States, 474 U.S. 1008, 88 L. Ed. 2d 464, 106 S. Ct. 533 (1985); United States v. Ismail, 756 F.2d 1253 (6th Cir. 1985); In re Grand Jury Subpoena of Santarelli, 740 F.2d 816 (11th Cir. 1984); In re Matthews, 714 F.2d 223 (2d Cir. 1983) (defendant compelled to testify against in-laws); United States v. (Under Seal), 714 F.2d 347 (4th Cir.), cert. denied, 464 U.S. 978, 104 S. CT. 1019, 78 L. Ed. 2d 354 (1983); United States v. Jones, 683 F.2d 817 (4th Cir. 1982); In re Grand Jury Proceedings (Starr), 647 F.2d 511 (5th Cir. Unit A 1981); United States v. Penn, 647 F.2d 876 (9th Cir.), cert. denied, 449 U.S. 903, 66 L. Ed. 2d 134, 101 S. Ct. 276 (1980); Gibbs v. State, 426 N.E.2d 1150 (Ind. App. 1981); State v. Gilroy, 313 N.W.2d 513 (Iowa 1981); Three Juveniles v. Commonwealth, 390 Mass. 357, 455 N.E.2d 1203 (Mass. 1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068, 79 L. Ed. 2d 746,104 S. Ct. 1421 (1984); People v. Amos, 163 Mich. App. 50, 414 N.W.2d 147 (Mich. Ct. App. 1987); Cabello v. State, 471 So. 2d 332 (Miss. 1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 732, 106 S. Ct. 2291 (1986); De Leon v. State, 684 S.W.2d 778 (Tex. Ct. App. 1984). This is, of course, also the situation presented by the Delaware appeals.
See In re Erato, 2 F.3d 11, 12 (2d Cir. 1993) (child is 52); State v. Willoughby, 532 A.2d 1020, 1021 (Me. 1987) ("At the time of the murder [the son] was in his early twenties and was no longer living at the family home . . . ."); In re Gail D., 217 N.J. Super. 226, 525 A.2d 337, 337 (N.J. Super. A.D. 1987) (defendant's father is 84 years old); State v. Maxon, 110 Wash. 2d 564, 756 P.2d 1297 (Wash. 1988) (en banc).
While I recognize that the son in this case was 18 and, therefore, under Virgin Island law had reached the "age of majority" at the time of the confidential communication, 16 V.I.C. § 261 ("All persons are deemed to have arrived at the age of majority at the age of 18 years, and thereafter shall have control of their own actions and businesses and have all the rights and be subject to all the liabilities of persons of full age."), I find it significant that file son was living at home when the communications were made. I also find critical the district court's statement that, "It is apparent . . . that the confidential communications which ensued were in the nature of a child seeking advice from his father with whom he shared a close and trusting relationship. In re Grand Jury Proceeding, Mise. No. 95-0009, at 10 n.5
See Port v. Heard, 764 F.2d 423, 428 (5th Cir. 1985) (Parties "do not rely on Fed. R. Evid. 501; were this a Rule 501 case our holding might be different since, in terms of the interests at stake, this case presents a compelling argument in favor of recognition."); In re Kinoy, *556326 F. Supp. 407 (S.D.N.Y. 1971) (decision issued four years before enactment of Fed. R. Evid. 501); In re Terry W., 59 Cal. App. 3d 745, 130 Cal. Rptr. 913, 915 (power to recognize parent-child privilege did not belong to the court under express provision of state statute); Marshall v. Anderson, 459 So. 2d 384, 386 (Fla. Dist. Ct. App. 1984) ("Directly unlike the federal courts, which under Rule 501 of the Federal Rules of Evidence are granted 'the flexibility to develop rules of privilege on a case-by-case basis . . . and to leave the door open to change,' the courts of Florida are statutorily forbidden to do so.") (citation omitted).
See Penn, 647 F.2d at 879 (defendant sought suppression of drug evidence after police officer offered 5-year-old child five dollars to show where drugs were concealed); United States v. Duran, 884 F. Supp. 537, 541 (D.D.C. 1995) (defendant sought exclusion of letter written to his son under parent-chid privilege); People v. Sanders, 99 Ill. 2d 262, 457 N.E.2d 1241, 1243, 75 Ill. Dec. 682 (Ill. 1983) (defendant sought exclusion of communication with his wife in front of their children), rev'd on other grounds, 99 Ill. 2d 262, 457 N.E.2d 1241, 75 Ill. Dec. 682 (Ill. 1983); State v. Gilroy, 313 N.W.2d 513, 518 (Iowa 1981) (defendant objected when his daughter was called as a witness on behalf of the state); People v. Amos, 414 N.W.2d at 148 (privilege invoked by defendant mother to prevent son's adverse testimony); State v. Bruce, 655 S.W.2d 66, 68 (Mo. Ct. App. 1983) (defendant sought to bar testimony by prison guard about conversation between defendant and his mother in front of the guard). [1997 U.S. App. LEXIS 312, *81]
See, e.g., In re Terry W., 130 Cal. Rptr. at 914 n.l ("The mother did not claim a 'parent-child privilege.'"); Cissna v. State, 170 Ind. App. 437, 352 N.E.2d 793, 795 (Ind. Ct. App. 1976); In re Frances J., 456 A.2d 1174, 1177 (R.I. 1983) (noting that "in all1 of the cases in which the privilege has been recognized, the proponent of the privilege has sought to preclude the compulsion of testimony by a parent. In the case before us, on the other hand, respondent has sought to inhibit or truncate the cross-examination of her mother who had proposed to testify voluntarily").
This case is also distinguishable from the only two federal decisions to have recognized some form of parent-child privilege. In In re Grand Jury Proceedings (Greenberg), 11 Fed. R. Evid. Serv. (Callaghan) 579 (D. Conn. 1982), a mother asserted a testimonial privilege to prevent being compelled to testify before a grand jury against her adult daughter. The privilege asserted was based on the mother's First Amendment free exercise claim. Specifically, the mother claimed that as a conservative Jew, she could not testify against her daughter without violating a basic tenet of her religion which forbids a parent to testify against a child. The district court recognized a parent-child privilege grounded in the First Amendment, holding that "requiring Mrs. Greenberg to testify would interfere with her free exercise of religion, though only to the extent that her answers would incriminate her daughter." Id. at 582. The court declined to recognize a common-law privilege protecting confidential parent-child communications in general, however, noting that although compelled disclosure of non-incriminating confidences might damage tire relationship between the mother and her daughter, the harm would be less severe than if an unemancipated minor were involved. Id. at 586-87.
In In re Grand Jury Proceedings (Agosto), 553 F. Supp. 1298 (D. Nev. 1983), the district court considered the motion of a thirty-two year old son to quash a subpoena requiring him to testify against his father. In granting the son's motion, the court recognized an expansive common-law testimonial privilege, holding that the government's interest in presenting all relevant evidence does not outweigh "an individual's right of privacy in his communications within the family unit, nor does it outweigh the family's interest in its integrity and inviolability." Id. at 1325. The court supported its decision in part by reference to constitutional law affording protection for the family right of privacy, id. at 1310, and the "expansive posture taken by Congress in enacting Federal Rule of Evidence 501." Id. at 1325. While I am in accord with the Agosto court with respect to the importance of parent-child relationships, I am not prepared to say that I would reach a similar result on similar facts. The case presented in Agosto, involving as it did an adult child's testimony against a parent, is far less compelling than the case now before us. Furthermore, I would decline to adopt a broad rule of privilege and, recognizing the need for caution and restraint, have narrowly drawn the privilege which I would recognize.