The opinion of the court was delivered by: MOTLEY
This matter is before this court on movant's motion to quash a subpeona ad testificandum. The movant-witness's brother is under investigation by the Grand Jury. The movant seeks to quash the subpeona and avoid testifying before the Grand Jury on the ground that he is entitled to exercise a "sibling privilege." The issue presented by this motion is one of first impression in the Second Circuit.
The movant was subpoenaed to appear and testify before a federal grand jury empanelled in the Southern District of New York on February 26, 1985. Counsel for movant, John J. Momet, Esq., notified the Assistant United States Attorney, Roanne L. Mann, that the movant would invoke his Fifth Amendment privilege and refuse to testify before the Grand Jury. Movant was excused from appearing before the Grant Jury pending the Government's application for use immunity, pursuant to 18 U.S.C. sections 6002-6003.
On March 13, 1985, the government was granted an immunity order requiring movant to testify. As a result, the movant's appearance before the Grand Jury was scheduled for Wednesday, March 20, 1985, at 10:00 a.m.
Movant has now moved to quash the subpeona and vacate the order to compel testimony and requested an evidentiary hearing.
Subsequently, this court granted movant's motion to stay the Grand Jury proceeding at least until March 25, 1985, in an order dated March 20, 1985. The Court further granted movant's motion to seal all papers. Movant's motion to quash the subpoena and vacate the order to compel testimony without an evidentiary hearing was denied by an order dated March 25, 1985, with an opinion to follow.
Movant contends that if he is required to testify against his brother his emotional, psychological and physical health will suffer. According to movant, if he were compelled to testify against his brother, he would be forced to breach the confidence of his sibling relationship. Movant further contends that his family life, more particularly his relationship with his brother, will be irreparably harmed. Finally, movant asserts that society's interest in protecting the family unit, in light of the breakdown of family cohesiveness prevalent in modern society, is greater than the government's interest and should be afforded greater protection.
For the reasons set forth below, the court denies movant's motion to quash the subpoena and vacate the order to compel testimony on the ground of a testimonial sibling privilege.
Federal Rules of Evidence, Rule 501, provides that in the absence of federal statute or rule, "the privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."
The Second Circuit has declined to expand recognized testimonial privileges to include parent-child or familial or sibling privileges. In In re Cueto, 554 F.2d 14, 15 (2d Cir. 1977), the court declined to recognize a privilege for lay ministers stating:
It is a fundamental rule of law that the public has a right to every person's evidence. There are a small number of constitutional, common-law and statutory exceptions to that general rule, but they have been neither "lightly created nor expansively construed, for they are in derogation of the search for truth." ...