In re Grand Jury Proceedings (1997)

United States Court of Appeals for the Third Circuit · 1997 · Evidence

103 F.3d 1140 (3d Cir. 1997)

Updated August 22, 2026

EvidencePrivilegesGrand JuryFed. R. Evid. 501parent-child privilegetestimonial privilegeRule 501Schofield affidavit

Facts

A grand jury in St. Croix subpoenaed the father of a grand jury target, who believed the government intended to question him about conversations with his son; the father moved to quash, asserting a parent-child privilege under Federal Rule of Evidence 501. In Delaware, a grand jury investigating the father's alleged participation in an interstate kidnapping subpoenaed his sixteen-year-old daughter, and the father, mother, and daughter moved to quash based on an asserted parent-child privilege covering both testimony and confidential communications. The government submitted a Schofield affidavit in Delaware, and the district court also received an in camera ex parte proffer to assess the materiality and nonduplicative nature of the daughter's testimony. Both district courts denied the motions to quash, and the daughter in Delaware refused to testify and was held in contempt.

Issue

Should the Third Circuit recognize a federal parent-child testimonial privilege under Federal Rule of Evidence 501? In the Delaware appeals, was the government's Schofield affidavit adequate, and did the district court violate due process by conducting an in camera ex parte proceeding on the government's proffer?

Rule

Federal courts should not recognize a new privilege under Rule 501 absent support in common-law principles, reason and experience, and sufficiently important interests outweighing the need for probative evidence; privileges are disfavored and are tolerated only to a very limited extent. A Schofield affidavit is sufficient if it minimally shows that the subpoenaed evidence is at least relevant to a grand jury investigation, within the grand jury's jurisdiction, and not sought primarily for another purpose, and district courts have discretion to require more information or to conduct in camera ex parte proceedings to protect grand jury secrecy.

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A federal grand jury in Philadelphia subpoenas Lena Ortiz to testify about private conversations she had with her 19-year-old son, who is being investigated for wire fraud. Lena moves to quash, arguing that forcing a parent to reveal a child's confidences will damage the family relationship and that federal common law should recognize a parent-child privilege.

How should the court rule?

Explanation. The motion should be denied. The majority held that privileges are disfavored, the public has a right to every person's evidence, and neither common-law history nor reason and experience supports a federal parent-child privilege. The court specifically rejected creating such a privilege even for confidential communications between parent and child.