(dissenting, with whom Hennessey, C.J., and Lynch, J., join). The court has declined to create a tes*365timonial privilege that would protect unemancipated minor children from being coerced by the State to appear and to testify, over the objection of the children and their parents, before a grand jury that is investigating the possible murder of a nonfamily member by the children’s father. The court reaches this conclusion despite its acknowledgment that it is “of course, free to identify a privilege of a child not to testify against his or her parent.” Supra at 360.
Correctly recognizing that its task is to balance the public’s interest in obtaining every person’s testimony against public policy considerations in favor of erecting such a testimonial privilege, supra at 364, the court concludes that in the circumstances presented by this case a minor child has no privilege to refuse to appear before a grand jury or to refuse to testify as to what he or she may have seen or heard, except perhaps as to confidential communications between the child and the parents. Supra at 357. The court reasons that erecting the privilege “would not promote ‘sufficiently important interests’ so as ‘to outweigh the need for probative evidence in the administration of criminal justice.’ Trammel v. United States, 445 U.S. 40, 50-51 (1980).” Supra at 364. I respectfully, but firmly, disagree with the court’s reasoning and with its conclusion. The violence done to the child, the damage to family unity, and the consequent injury to society that may result from the State’s coercing an unemancipated minor to testify against a parent in the circumstances of this case are too high a price to pay for the enforcement of our criminal laws.
Although the court reasons that the privilege would not promote sufficiently important interests to warrant depriving the Commonwealth of evidence that might aid its investigation, the opinion fails to compare adequately the values that compete for protection by the court. Legitimate concerns about the impact of the court’s determination on children, families, and society are summarily dismissed. Instead, the court relies on what it perceives to be the weight of authority against judicial creation of a parent-child testimonial privilege, and the lack of substantial precedent favor*366ing such a privilege. Supra at 362-363. There is little helpful precedent. Such precedent as there is provides no justification for the court’s failure to create a parent-child testimonial privilege in this case. A proper balancing of the values that are involved yields the conclusion that the privilege for which the plaintiffs contend should have been granted.
The court has ruled that a child must appear before a grand jury and may be required to testify in the circumstances of this case. The significance of the court’s decision, however, would appear not to be limited to the circumstances of this case. The fair import of the decision is that, with the possible exception of confidential communications between parents and their children, and in the absence of concerns about self-incrimination, this Commonwealth does not recognize the right of a child to refuse to testify before a grand jury against his or her parent with respect to observations made inside or outside the home, having possible bearing on any kind of crime, violent or nonviolent, “white collar” or otherwise.
The State should not make unrealistic demands on its citizens, especially its children. A requirement that an unemancipated minor child, living with his or her parents, must incriminate one or both of them is an unrealistic demand, at least when a family member is not a victim of the crime under investigation. The demand is unrealistic because it is insensitive to the needs of children, and to the nature of the normal relationship between children and their parents, involving, as it does, love, trust, loyalty, and dependency. This court should recognize a public policy against imposing on the conscience of a child responsibility for incriminating his or her parent. Society’s interest in its children should be recognized as sufficiently important to outweigh the need for probative evidence in the administration of criminal justice in the circumstances presented by this case.
Not only does society have an interest in children’s being free from unreasonable public demands, but society also has an interest in fostering the unity of the family. “[T]he insti*367tution of the family is deeply rooted in this Nation’s history and tradition.” Moore v. East Cleveland, 431 U.S. 494, 499, 503-504 (1977). The Massachusetts Legislature has declared that “the policy of the commonwealth [is] to direct its efforts ... to the strengthening and encouragement of family life.” G. L. c. 119, § 1, as amended by St. 1972, c. 785, § 5. The Legislature has granted one spouse the right not to testify against the other spouse in a criminal proceeding except in child abuse and nonsupport cases. G. L. c. 233, § 20. General Laws c. 274, § 4, exempts specified family members from criminal liability as accessories after the fact to the commission of a felony by other members of the same family. These statutes demonstrate a legislative awareness that there are basic human instincts to protect the members of one’s family, even from the State, and that the State should respect those instincts, despite the possible adverse effect on law enforcement. These statutes also demonstrate a legislative judgment that in some circumstances the important interests of society in obtaining every person’s evidence must give way to the recognition and protection of marital and family integrity. If society’s interest in the enhancement of the marriage relationship justifies a spouse’s privilege not to testify against a spouse in a criminal proceeding, a corresponding interest in family integrity must justify, with at least equal force, an unemancipated minor’s privilege not to testify in the circumstances presented by this case. Furthermore, if public policy dictates that family members should be protected from criminal liability for shielding other family members from apprehension for felonious conduct, all the more does public policy call for the grant to a child of a privilege not to testify against his or her parent in the circumstances of this case.
That the Legislature has not seen fit to grant such a privilege is not an adequate answer. It may be that the necessity for such legislation has not come to the Legislature’s attention. Perhaps prosecutors have heretofore refrained from forcing the issue. In any event, this court has the power to create testimonial privileges in appropriate circumstances. *368For the reasons I have stated, and for the additional reason that the enforceability of a rule requiring a child to testify against his or her parent is very doubtful, I believe that the court’s order was erroneous.
I comment briefly on the precedents cited by the court. Nearly all of the cases which have rejected claims of a parent-child privilege can be distinguished from this case. The courts that decided In re Terry W., 59 Cal. App. 3d 745 (1976), Cissna v. State, 170 Ind. App. 437 (1976), followed by Hunter v. State, 172 Ind. App. 397, cert. denied, 434 U.S. 906 (1977), and State v. Gilroy, 313 N.W.2d 513 (Iowa, 1981), reasoned that only the Legislature, and not the court, was authorized to grant testimonial privileges. In this Commonwealth, however, there is no bar to the creation of a common law privilege in appropriate circumstances, so those cases give us no assistance whatsoever.
Cases in which the court has considered and rejected a general common law privilege of a child not to testify against his or her parent are significantly distinguishable on their facts from the present case. In Matter of a Grand Jury Subpoena Served Upon Kinoy, 326 F. Supp. 400 (S.D.N.Y. 1970), the family member about whom the grand jury sought information was not a target of the grand jury investigation, but was sought in connection with an investigation of another individual. Also the parent and child did not live together. That is unlike the present case in which the grand jury investigation has focused on the father, with whom the children live. In United States v. Jones, 683 F.2d 817, 819 (4th Cir. 1982), the court held that “[ujnder the circumstances, namely an emancipated, adult child’s testimony which only arguably would be adverse to his father, limited to questions unrelated to his familial association with his parent, and involving no communication between father and son, we are satisfied that there simply is no privilege such as Jones has asserted. See In re Kinoy, 326 F. Supp. 400, 406 (S.D.N.Y. 1970).” In United States v. Penn, 647 F.2d 876 (9th Cir. 1980), a majority of the Court of Appeals, sitting en banc, reversed a Federal District Court or*369der granting the defendant’s motion to suppress a jar of heroin taken from the defendant’s backyard. The Court of Appeals held that the conduct of the police in offering the defendant’s five year old son $5 if he would show them the location of the heroin did not violate due process, and that the seizure of the heroin, did not violate the Fourth Amendment to the Constitution of the United States. At the conclusion of its opinion, the court considered the defendant’s claim of privilege. It stated simply: “There is no judicially or legislatively recognized general ‘family’ privilege . . . and we decline to create one here.” Id. at 885. That case did not involve a child’s compelled testimony against a parent. In In re Grand Jury Proceedings, 647 F.2d 511 (5th Cir. 1981), the opinion does not reveal whether the daughter, called as a witness, was a minor, was emancipated, or was living with her parents.
The court fails to cite a single case in which a court that has recognized its authority to grant testimonial privileges has undertaken a comparison of the competing values presented by a case such as this one, and concluded that the interest of the State in obtaining evidence is entitled to priority over the interests of children, families, and society that would be served by granting the privilege for which the plaintiffs contend. However, there is one recent case in which the court did balance the competing interests, and held that, as a matter of constitutional law, a child of any age may claim the parent-child privilege and refuse to appear and give any testimony whatsoever against his or her parent in any criminal proceeding. See In re Grand Jury Proceedings Witness: Agosto, 553 F. Supp. 1298 (D. Nev. 1983). The court reasoned that the government’s interest in presenting all relevant evidence in criminal proceedings was outweighed by the individual’s interest in the privacy of family communications and the family’s interest in its integrity and inviolability. Maintaining the harmony and privacy of the family relationship, the court concluded, was just as compelling a goal as maintaining the harmony and privacy of the marriage relationship, which is protected by *370the husband-wife privilege. Id. at 1325. The court emphasized that placing a child in the position of being “scorned and branded as disloyal if he does testify and jailed if he does not” would undermine the unity of the family and would risk grave psychological harm to the child. Id. at 1326. I do not consider that opinion unpersuasive here, although it goes beyond the necessities of the case before us. I would have ruled in this case that unemancipated minor children, living with their parents, should not be compelled either to appear or to testify, before a grand jury that is investigating the possible murder by their father of a non-family member.