testimonial privilege in Massachusetts

2015When considering the meaning of a testimonial privilege, “we look first and foremost to the language of the statute as a whole.” Id.

2014See, e.g., Matter of a Grand Jury Subpoena, 447 Mass. 88 , 91 n.2 (2006) (“The statute before us confers a testimonial privilege; it does not define criminal conduct.

2022When an appellate court does recognize a testimonial privilege, a power that is exercised cautiously, the court does so because "excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id. at 167 , quoting Three Juveniles v. Commonwealth, 390 Mass. 357, 359-360 (1983), Page 272 cert. denied, 465 U.S. 1068 (1984).

2000Because it was not presented on the record, we declined to rule on the question of privilege as to confidential communications between parent and child, stating that “the question of a testimonial privilege as to such communications can be raised and dealt with in the specific circumstances presented [when the minors appear to testify].” Id. at 362 n.5.

1980Although the Court found no error in Namet , it established the test for such cases as the present one: “error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege . . . [or] in the circumstances of a given case, inferences from a witness’ refusal to answer [may have] added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus [may] unfairly [have] prejudiced the defendant.” Id. at 186-187 . 14 We have applied

1978There is nothing in the record of this case which would justify our concluding that the prosecution made "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege” (Namet v. United States, 373 U.S. 179, 186 [1963]; Commonwealth v. Martino, 361 Mass. 720, 722 [1972]), and this is not a case in which "insistent or extended [questioning]... suggested] particularized states of fact from which the jury might the more easily draw harmful inferences.” Commonwealth v. Martin, 372 Mass. at 421 .

2025And, given the privileges and obligations in our society that turn on reaching the age of majority,[5] as well as the need for "line drawing" in defining a testimonial privilege, see Matter of a Grand Jury Subpoena, supra at 598 , the Legislature's choice to end the disqualification when a child reaches the age of eighteen is not arbitrary.

2004In Matter of a Grand Jury Subpoena, 430 Mass. 590, 590-591 (2000), the court left for consideration by the Legislature the additional issue whether a testimonial privilege should be created for parents of juveniles who had been subpoenaed to appear before a grand jury investigating the possible rape of another minor child by the juveniles.

1978There is nothing in the record of this case which would justify our *81 concluding that the prosecution made "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege" ( Namet v. United States, 373 U.S. 179, 186 [1963]; Commonwealth v. Martino, 361 Mass. 720, 722 [1972]), and this is not a case in which "insistent or extended [questioning] ... suggest[ed] particularized states of fact from which the jury might the more easily draw harmful inferences." Commonwealth v. Martin, 372 Mass. at 421 .

1978There is nothing in the record of this case which would justify our concluding that the prosecution made "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege” (Namet v. United States, 373 U.S. 179, 186 [1963]; Commonwealth v. Martino, 361 Mass. 720, 722 [1972]), and this is not a case in which "insistent or extended [questioning]... suggested] particularized states of fact from which the jury might the more easily draw harmful inferences.” Commonwealth v. Martin, 372 Mass. at 421 .

2022See Babets v. Secretary of the Executive Office of Human Servs., 403 Mass. 230, 235 (1988) (Supreme Judicial Court has "been reluctant to create new privileges, preferring to leave this area to legislative determination"). [Note 5] The concept of a legislative privilege, however, is not new; although not recognized in any Massachusetts appellate decision, it has been widely recognized elsewhere, and both the judge in this case and the plaintiff at oral argument before us acknowledged its existence.

2015See generally Commonwealth v. Martin, 423 Mass. 496, 500-501 (1996) (discussing so-called “waiver by testimony” rule). 20 The enactment of G.

2009Attorney General v. Pelletier, 240 Mass. 264, 307 (1922), holding private investigators are required by law to provide information “concerning an issue under investigation in court” and that G.L.c. 147, §28 “was not intended to hamper the administration of justice.” Id.

2009See Shapiro v. United States, 335 U.S. 1, 17 (1948); United States v. Hubbell, 530 U.S. 27, 35 (2000).

2009See Shapiro v. United States, 335 U.S. 1, 17 (1948); United States v. Hubbell, 530 U.S. 27, 35 (2000).

1991That point was disposed of in Duest I, 26 Mass. App. Ct. at 149.

1990See Commonwealth v. DiPietro, 373 Mass. 369, 382 (1977).

1980See also Matter of Pappas, 358 Mass. 604, 612 (1971); Dow Jones & Co. v. Superior Court, 364 Mass. 317, 325 (1973). 9 We therefore examine Roche’s claim in light of the general right of any person to gather information and prepare it for expression.

1980See also Matter of Pappas, 358 Mass. 604, 612 (1971); Dow Jones & Co. v. Superior Court, 364 Mass. 317, 325 (1973). [9] *632 We therefore examine Roche's claim in light of the general right of any person to gather information and prepare it for expression.

1980As an initial matter, the United States Supreme Court has established that the First Amendment does not “grant newsmen a testimonial privilege that other citizens do not enjoy.” Branzburg v. Hayes, 408 U.S. 665, 690 (1972). 8 Mr. Justice Powell, upon whose concurrence in Branzburg Roche places great reliance, would appear to be of the same opinion: “[P]ersons who become journalists acquire thereby no special immunity from governmental regulation.” Saxbe v. Washington Post Co., 417 U.S. 843, 857 (1974) (Powell, J., dissenting).

1980As an initial matter, the United States Supreme Court has established that the First Amendment does not "grant newsmen a testimonial privilege that other citizens do not enjoy." Branzburg v. Hayes, 408 U.S. 665, 690 (1972). [8] Mr. Justice Powell, upon whose concurrence in Branzburg Roche places great reliance, would appear to be of the same opinion: "[P]ersons who become journalists acquire thereby no special immunity from governmental regulation." Saxbe v. Washington Post Co., 417 U.S. 843, 857 (1974) (Powell, J., dissenting).

1980As an initial matter, the United States Supreme Court has established that the First Amendment does not “grant newsmen a testimonial privilege that other citizens do not enjoy.” Branzburg v. Hayes, 408 U.S. 665, 690 (1972). 8 Mr. Justice Powell, upon whose concurrence in Branzburg Roche places great reliance, would appear to be of the same opinion: “[P]ersons who become journalists acquire thereby no special immunity from governmental regulation.” Saxbe v. Washington Post Co., 417 U.S. 843, 857 (1974) (Powell, J., dissenting).

1980As an initial matter, the United States Supreme Court has established that the First Amendment does not "grant newsmen a testimonial privilege that other citizens do not enjoy." Branzburg v. Hayes, 408 U.S. 665, 690 (1972). [8] Mr. Justice Powell, upon whose concurrence in Branzburg Roche places great reliance, would appear to be of the same opinion: "[P]ersons who become journalists acquire thereby no special immunity from governmental regulation." Saxbe v. Washington Post Co., 417 U.S. 843, 857 (1974) (Powell, J., dissenting).

1980See also Matter of Pappas, 358 Mass. 604, 612 (1971); Dow Jones & Co. v. Superior Court, 364 Mass. 317, 325 (1973). 9 We therefore examine Roche’s claim in light of the general right of any person to gather information and prepare it for expression.

1980See also Matter of Pappas, 358 Mass. 604, 612 (1971); Dow Jones & Co. v. Superior Court, 364 Mass. 317, 325 (1973). [9] *632 We therefore examine Roche's claim in light of the general right of any person to gather information and prepare it for expression.

1978There is nothing in the record of this case which would justify our *81 concluding that the prosecution made "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege" ( Namet v. United States, 373 U.S. 179, 186 [1963]; Commonwealth v. Martino, 361 Mass. 720, 722 [1972]), and this is not a case in which "insistent or extended [questioning] ... suggest[ed] particularized states of fact from which the jury might the more easily draw harmful inferences." Commonwealth v. Martin, 372 Mass. at 421 .

1978There is nothing in the record of this case which would justify our concluding that the prosecution made "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege” (Namet v. United States, 373 U.S. 179, 186 [1963]; Commonwealth v. Martino, 361 Mass. 720, 722 [1972]), and this is not a case in which "insistent or extended [questioning]... suggested] particularized states of fact from which the jury might the more easily draw harmful inferences.” Commonwealth v. Martin, 372 Mass. at 421 .

1977See Commonwealth v. DiPietro, ante, 369, 382 (1977); Federal Rules of Evidence 804(a)(1). 12 See, e.g., United States v. Walling, 486 F.2d 229, 238-239 (9th Cir. 1973), cert, denied, 415 U.S. 923 (1974); Thompson v. State, 309 So. 2d 533, 535 (Miss.), cert, denied, 423 U.S. 924 (1975); Ragler v. State, 18 Md.

1977See also United States v. Brandenfels, 522 F.2d 1259, 1264 (9th Cir.), cert, denied, 423 U.S. 1033 (1975) (applying the new Federal rule arguendo); People v. Chapman, 50 Cal. App. 3d 872, 880-991 (1975) (affirming exclusion of untrustworthy statement). 11 The “unavailability” requirement has been clearly met here by reason of Wood’s successful assertion of a testimonial privilege.

1977See also United States v. Brandenfels, 522 F.2d 1259, 1264 (9th Cir.), cert, denied, 423 U.S. 1033 (1975) (applying the new Federal rule arguendo); People v. Chapman, 50 Cal. App. 3d 872, 880-991 (1975) (affirming exclusion of untrustworthy statement). 11 The “unavailability” requirement has been clearly met here by reason of Wood’s successful assertion of a testimonial privilege.