WEBVTT

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<v ->SJC-13087, Commonwealth v. Eli Vigiani.</v>

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<v ->Okay, Attorney McClain.</v>

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<v ->Good morning, may I please the court?</v>

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Ian McClain on behalf of the Commonwealth.

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First, I'd like to recognize

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this trial prosecutor in this case,

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Assistant District Attorney, Michael Glennon,

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who is on brief in the case as well.

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<v ->Your Honors, this court should reverse</v>

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the motion judge's rulings

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that General Law Chapter 233, Section 120, Paragraph 4th,

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creates a waivable privilege

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and that it applies in a motion to suppress setting.

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As with any question of statutory construction,

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the purpose is to effectuate the intent of the legislature.

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And where the plain language

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of the statute is clear and unambiguous,

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that's determinative as to the legislature's intent.

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<v ->Counsel, at this point,</v>

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does the Commonwealth concede

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that it's a rule of disqualification?

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<v ->Yes, Your Honor,</v>

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the Commonwealth does believe

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that it is a rule of disqualification.

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The parties agree that it is a rule of disqualification.

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<v ->Okay, so let's begin from there.</v>

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I know part of the basic bone of contention is whether

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or not the words against can be read in the ways

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that the Commonwealth is saying applies irrespective

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of whether the proposed testimony is for or against.

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It means all testimony.

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But, I found the respondent's brief

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fairly compelling on this point.

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I know that you raised that there might be some issues

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that might come up on cross examination and so forth

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that might underscore that the testimony

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could then ultimately be used against the child

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but talk to me about that language and the way

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that it's been parsed out in both of your briefs

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that the fair reading in this rule of disqualification

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is that it's gotta be evidence that's gonna be used against.

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And in this case,

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it's gonna be evidence that's gonna be in support

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of the juvenile.

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So, talk to me about that

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because why isn't the fair interpretation of that

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just what it sounds like?

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<v ->Yes, Your Honor.</v>

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The answer to that question is,

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normally, we do use the plain and ordinary meaning

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of the word when we're considering the statute.

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There's an exception to that any time

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that a word has acquired a technical meaning

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like a tax case or it's acquired a specific meaning

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based on case law.

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This court's prior case is construing a statute.

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Here, that's the situation.

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This court, in 1987, in Malay,

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construed the second paragraph of this statute

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and determined that that word, against,

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referred not to the content of the testimony,

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the nature of the testimony, excuse me,

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it did not refer to the content of the testimony,

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it referred to the nature of the proceeding

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we were talking about.

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<v ->But it was a different lead statute</v>

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that was being talked about, right?

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<v ->Same stature, yes, Your Honor.</v>

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Same statute but a different sentence structure.

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<v ->Right, and.</v>

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<v ->Yeah, not just that.</v>

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Section two is a privilege.

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Paragraph two is a privilege.

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<v ->Yes, yes, Your Honor.</v>

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<v ->It says a different concept.</v>

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<v ->It is a privilege within the same statute</v>

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but we're talking about the same word

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being used within the same statute.

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So, there are cases that discussed when one word

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is given a meaning within a statute

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it carries the same meaning throughout the statute.

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So, let's talk about the form of Paragraph 4th now,

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post 2018 Amendment and the form of Paragraph 2018,

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excuse me, the form of Paragraph 4th pre 2018 Amendment.

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So, and compare that to the second paragraph

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that was construed in Malay.

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So, when Malay incorporates that conclusion

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about what against was modifying based on the phrase

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that immediately proceeded against.

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And that was the list of the nature of the proceedings.

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<v ->Uh-huh.</v>

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<v ->So against modified that.</v>

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And if you look at the form of Paragraph 4th

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that existed pre 2018 Amendment it used the same structure.

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Against, was preceded by the list of the types

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of proceedings that it was modifying.

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So, when the legislature made the change in 2018

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they modified the sentence structure and you can see that

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because they added an entire additional category of persons.

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They added in parents shall not testify

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against their children.

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So because they added in that second entire category

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into that paragraph,

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they had to change the sentence structure.

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So that clause of the proceedings that against modifies.

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<v ->Sure.</v>

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<v ->Move from before against to after against.</v>

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<v ->Sure, let's take our jurisprudence</v>

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on statutory construction.

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Let's just concede for, at least, the beginning

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that there's some ambiguity.

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Because you're arguing the same words that the respondent

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is gonna say mean something different.

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Okay, so, now we go to the next layer of looking

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at the legislative history of this.

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Now, we said the common sense view

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of the legislative history that we didn't wanna do anything

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to undermine the parental child relationship, right?

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Do you, at least, concede that that was they were intending

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to do to not undermine that relationship?

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<v ->Yes, Your Honor.</v>

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<v ->So how would calling your parent</v>

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in support of your decision or your position,

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excuse me, the child's position.

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How would that be undermining

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the relationship between parent and child

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when the parent ostensibly would come in

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and give testimony that's helpful to the child?

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<v ->Uh-hm, sorry, two responses that, Your Honor.</v>

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First is, we're trying to discern the legislature's intent

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in the most clearest enunciation of that is the words

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that they chose to use.

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So if you look at the beginning of that fourth paragraph,

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they used the phrase, "shall not testify."

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That's language of disqualification,

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not language interpretation.

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That's clear I think everyone would agree about that.

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The legislature kicked off this paragraph by telling us

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this is a disqualification.

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<v ->If we're gonna read out the word, against.</v>

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<v ->Uh-huh.</v>

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<v ->I supposed.</v>

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<v ->I respectfully disagree with that, Your Honor,</v>

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because the legislature was adopting

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the prior judicial construction of against

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but what against modifies is not the content

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of the testimony but the nature of the proceedings

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that applies too.

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The difference in where that list of the proceeding is,

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is because they added the second category of persons.

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So they had to move the list of the proceedings

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to after both categories of persons

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for the sentence structure to work still.

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<v ->Uh-huh.</v>

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<v ->And that did, yes, Your Honor,</v>

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that did create a wrinkle.

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But if you look at the places

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where these disqualification applies

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you can see that they're still effectuating

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that intent that we're discussing

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which is not to interfere for parent-child relationship.

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Because they laid out two sort of categories

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where this disqualification applies.

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The first, at an inquest or a grand jury.

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So that's the process by which we're deciding

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if charges are gonna be brought against this individual.

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So they're excluding the parents from testifying

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in that decision where we're determining

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whether charges will even be brought.

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And then, second place where they included

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this disqualification is in a trial,

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if that decision has been made.

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Now, as this court pointed out in

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the Grand Jury in 2006 version

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where they interpreting that introductory phrase of,

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"in the trial of."

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This court indicated that that phrase

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then modifies everything that comes after,

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"in the trial of."

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We have the same construction here

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when they're listing out their nature of proceedings.

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Where they listed them as, "trial of"

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and indictment or complaint or any other

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criminal delinquency or youthful offender proceeding.

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Same construction applies.

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<v ->If it were markedly different word.</v>

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<v ->Yes, Your Honor.</v>

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<v ->It's not even close different words.</v>

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<v ->Well, "in the trial of" and "trial of an"</v>

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the same concept is they're using that introductory portion

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of the phrase to tell you, "this trial of'

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modifies everything that's coming after.

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<v ->That would be compelled to testify in a trial of</v>

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and indictment complaint or other criminal proceedings.

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That's Section two, right?

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<v ->Correct, Your Honor.</v>

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<v ->Okay, Section four, in proceeding before,</v>

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first of all it says, shall not testify against parent

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or minor child in a proceeding before an inquest,

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grand jury, trial or indictment or a complaint

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and then another one or any other criminal proceeding.

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(paper rustling)

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separate,

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or any other criminal proceeding.

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You can make your argument about two and four,

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but the language is dramatically different.

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They're not even close.

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<v ->Yes, Your Honor, the legislature did indicate</v>

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that this qualification applies in a series of settings.

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And so for talking about the phrase, "trial of an"

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trial of an indictment or a complaint

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or any other criminal delinquency

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or youthful offender proceeding.

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<v ->Could you, could you say to anybody other than a lawyer</v>

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that testifying against doesn't mean its the,

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you don't have to testify against your kid?

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With a straight face,

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can you say that to anybody else other than a lawyer?

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(man laughing)
Because.

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<v ->Yes, Your Honor, this statute does aimed</v>

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at lawyers and legal practitioners.

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It's about an evidentiary concept.

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<v ->Because the lawyers and practitioners doesn't mean</v>

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that we have to, you know,

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give up our common sense of what, against, means.

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<v ->Yes, Your Honor, the legislature could have drafted</v>

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this statute or in a different or more artful manner.

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I mean...

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<v ->Because, you know, they had to do with the paragraph one.</v>

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I mean, neither husband nor wife shall testify

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as to a private conversation with the other.

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That's all they have to do,

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they could just say, neither parent nor child

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shall testify when either is a party.

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Not only you said not complicated

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it's right in the Section one.

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Right there for them to read if they wanna agree

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with what you're saying.

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<v ->Yes, Your Honor, they also could have also broken out</v>

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and add an additional paragraph to cover

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this new disqualification of parent and child.

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<v ->No, no.</v>

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But, if they wanna come out the way you do

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they just have to plagiarist themselves.

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They're the same sections.

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<v ->Doesn't your approach raise all kinds</v>

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of constitution problems, too?

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Particularly, in this context,

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so the very purpose of having the parent

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there's to protect the child's right, right?

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That's why we provide for this parental consultation

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and I mean, essentially,

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this child is gonna be left on their own

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if their parent can't testify

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if there has been abused by the police.

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I believe, doesn't it raise all kinds

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of constitutional issues that we try to avoid?

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<v ->So yeah, the case that's presented here</v>

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is limited to the motion to suppress here

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and the Commonwealth's construction of the statute

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was you think the plain language was...

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<v ->No, I understand what you're saying</v>

263
00:10:47.550 --> 00:10:49.660
but you gotta remember,

264
00:10:49.660 --> 00:10:52.820
this parent is there to protect that child's rights

265
00:10:52.820 --> 00:10:54.780
during the interview with the police, right?

266
00:10:54.780 --> 00:10:56.750
That's the very purpose of being there

267
00:10:56.750 --> 00:10:58.800
because we don't think kids can stand up

268
00:10:58.800 --> 00:11:00.920
to cops by themselves, right?

269
00:11:00.920 --> 00:11:01.970
<v ->Correct, Your Honor.</v>

270
00:11:01.970 --> 00:11:04.510
<v ->And you also have the right</v>

271
00:11:04.510 --> 00:11:08.650
to produce evidence on your own behalf.

272
00:11:08.650 --> 00:11:12.170
So if the police are violating this child's rights,

273
00:11:12.170 --> 00:11:14.050
the parent is the one who's gonna be

274
00:11:14.050 --> 00:11:16.980
the best able to present that case.

275
00:11:16.980 --> 00:11:21.390
You're taking away their ability to defend themselves

276
00:11:21.390 --> 00:11:23.410
in the motion to suppress with this.

277
00:11:23.410 --> 00:11:25.210
It just seems like the constitutional issues

278
00:11:25.210 --> 00:11:29.540
that we wanna avoid by treating this as a privilege

279
00:11:29.540 --> 00:11:31.530
not a disqualification.

280
00:11:31.530 --> 00:11:34.360
And then, if they waive the privilege,

281
00:11:34.360 --> 00:11:35.960
then you get to cross-examine them

282
00:11:35.960 --> 00:11:37.923
they're acting at their own risk.

283
00:11:38.820 --> 00:11:39.670
<v ->Respectfully, Your Honor,</v>

284
00:11:39.670 --> 00:11:41.510
the Commonwealth's construction is that

285
00:11:41.510 --> 00:11:43.310
this disqualification does not apply

286
00:11:43.310 --> 00:11:44.143
to motions to suppress here.

287
00:11:44.143 --> 00:11:46.460
And that makes sense because the legislation was well aware

288
00:11:46.460 --> 00:11:48.890
of this court's body of law about interested adults.

289
00:11:48.890 --> 00:11:50.220
<v ->And we're gonna,</v>

290
00:11:50.220 --> 00:11:51.590
you have to win that argument

291
00:11:51.590 --> 00:11:54.229
which is we'll see if you'll win it or not.

292
00:11:54.229 --> 00:11:56.340
<v ->(laughing) Yes, Your Honor.</v>

293
00:11:56.340 --> 00:11:58.440
From our construction it creates a coherent system

294
00:11:58.440 --> 00:12:00.630
that works so that the interested adults body of law

295
00:12:00.630 --> 00:12:01.860
still completely applies

296
00:12:01.860 --> 00:12:03.440
because there's no preclusion,

297
00:12:03.440 --> 00:12:06.270
no disqualification at the motion to suppress age.

298
00:12:06.270 --> 00:12:08.490
So that child would be able to call

299
00:12:08.490 --> 00:12:10.390
the interested adult parent to testify on their behalf

300
00:12:10.390 --> 00:12:12.230
at the motion to suppress age.

301
00:12:12.230 --> 00:12:14.650
Now the legislature as this court recognized,

302
00:12:14.650 --> 00:12:17.210
is gonna be engaging in balancing competing interests

303
00:12:17.210 --> 00:12:20.815
as this court recognized that in the Grand Jury in 2000.

304
00:12:20.815 --> 00:12:21.790
When you invited them to draft a.

305
00:12:21.790 --> 00:12:22.840
<v ->Well, I'm confused, though.</v>

306
00:12:22.840 --> 00:12:24.250
So they can testify

307
00:12:24.250 --> 00:12:27.450
but then in a trial they can't testify, right?

308
00:12:27.450 --> 00:12:28.690
<v ->That was the legislature's decision, Your...</v>

309
00:12:28.690 --> 00:12:32.250
<v ->And so, we're doing the voluntariness issue, right?</v>

310
00:12:32.250 --> 00:12:34.420
We often have motions to suppress.

311
00:12:34.420 --> 00:12:37.790
We have the same issue crops up at trial

312
00:12:37.790 --> 00:12:40.414
under voluntariness inquiry, right?

313
00:12:40.414 --> 00:12:41.247
<v ->Yes.</v>

314
00:12:41.247 --> 00:12:44.310
<v ->So the parent can't describe the coercion of the child</v>

315
00:12:44.310 --> 00:12:46.895
at that hearing, at trial, right?

316
00:12:46.895 --> 00:12:49.870
On the interview, they could testify the motions to suppress

317
00:12:49.870 --> 00:12:52.440
but they lost it the voluntariness issue there

318
00:12:52.440 --> 00:12:54.713
totally unable to testify.

319
00:12:55.730 --> 00:12:56.610
<v ->Two responses, Your Honor.</v>

320
00:12:56.610 --> 00:12:58.830
First, beyond the scope of the specific issue

321
00:12:58.830 --> 00:12:59.750
before the court here today.

322
00:12:59.750 --> 00:13:03.430
However, a statutory disqualification would yield

323
00:13:03.430 --> 00:13:04.780
to a constitutional claim.

324
00:13:04.780 --> 00:13:07.560
So a defendant would need to raise an issue

325
00:13:07.560 --> 00:13:09.470
and make that we would suggest same sort of way

326
00:13:09.470 --> 00:13:11.350
in the spousal environment.

327
00:13:11.350 --> 00:13:13.920
Where they need to make a material and significant showing

328
00:13:13.920 --> 00:13:15.740
that it's necessary for them to present a defense.

329
00:13:15.740 --> 00:13:18.100
At which time, the constitution would tramp

330
00:13:18.100 --> 00:13:20.270
the statutory disqualification

331
00:13:20.270 --> 00:13:21.640
and the child would be able to call

332
00:13:21.640 --> 00:13:23.740
the parent to testify at trial.

333
00:13:23.740 --> 00:13:26.540
So the legislature, in it's wisdom,

334
00:13:26.540 --> 00:13:30.830
after this court invited to do so in the Grand Jury in 2000,

335
00:13:30.830 --> 00:13:33.130
heard testimonies and evidence the way in competing

336
00:13:33.130 --> 00:13:34.850
and balancing interests as this court indicated.

337
00:13:34.850 --> 00:13:37.380
They were in a group of the best position to do so,

338
00:13:37.380 --> 00:13:39.560
and they crafted a disqualification.

339
00:13:39.560 --> 00:13:42.880
And they crafted a disqualification to apply in two stages.

340
00:13:42.880 --> 00:13:45.730
The charging stage and the trial stage itself.

341
00:13:45.730 --> 00:13:47.660
They excluded the motions to suppress age

342
00:13:47.660 --> 00:13:49.600
it creates no conflict.

343
00:13:49.600 --> 00:13:51.410
<v ->Well, Counsel, I'm confused by that.</v>

344
00:13:51.410 --> 00:13:54.350
Because it's not a distinction without a difference

345
00:13:54.350 --> 00:13:57.900
because if you're saying that the parent can't testify

346
00:13:57.900 --> 00:13:59.870
at the motions to suppress

347
00:13:59.870 --> 00:14:02.540
and gives this favorable testimony.

348
00:14:02.540 --> 00:14:04.180
And then, you're saying by statute,

349
00:14:04.180 --> 00:14:05.900
the parent would then be disqualified

350
00:14:05.900 --> 00:14:07.670
from testifying a trial.

351
00:14:07.670 --> 00:14:09.930
Well, then, wouldn't that be bringing it within

352
00:14:09.930 --> 00:14:11.390
the hearsay exception?

353
00:14:11.390 --> 00:14:16.390
Because now, you have the testimony was given at trial

354
00:14:16.449 --> 00:14:19.520
the child and the Commonwealth would have.

355
00:14:19.520 --> 00:14:22.940
The same opportunities and have the same interests

356
00:14:22.940 --> 00:14:26.210
in listening the testimony back and forth.

357
00:14:26.210 --> 00:14:29.320
It would meet all of the basis

358
00:14:29.320 --> 00:14:32.480
to be introduces prior recorded testimony.

359
00:14:32.480 --> 00:14:34.790
Wouldn't it, at trial?

360
00:14:34.790 --> 00:14:36.350
<v ->The Commonwealth should not be able to do so, Your Honor,</v>

361
00:14:36.350 --> 00:14:37.373
because of the disqualification

362
00:14:37.373 --> 00:14:38.970
that the legislature crafted.

363
00:14:38.970 --> 00:14:40.930
We will not be able to use that testimony,

364
00:14:40.930 --> 00:14:43.120
the defendant could potentially call that parent

365
00:14:43.120 --> 00:14:44.600
if they made that preliminary showing.

366
00:14:44.600 --> 00:14:45.960
We would suggest that they would need to do

367
00:14:45.960 --> 00:14:48.530
that preliminary showing of material and significance

368
00:14:48.530 --> 00:14:50.730
to their ability to present a defense.

369
00:14:50.730 --> 00:14:52.730
So our purpose here, Your Honor,

370
00:14:52.730 --> 00:14:55.100
is just to advocate for effectuating

371
00:14:55.100 --> 00:14:56.570
the legislature's intent.

372
00:14:56.570 --> 00:14:57.403
And we think the legislation...

373
00:14:57.403 --> 00:14:59.220
<v ->Wait, why would that need to be showing?</v>

374
00:14:59.220 --> 00:15:01.880
Why would the defendant need to show

375
00:15:02.940 --> 00:15:04.210
the constitutional need?

376
00:15:04.210 --> 00:15:06.380
Why couldn't the defendant just go under

377
00:15:06.380 --> 00:15:10.083
Justice George's exception to the hearsay rule?

378
00:15:11.080 --> 00:15:15.170
<v ->Because the parent would be excluded under the statute.</v>

379
00:15:15.170 --> 00:15:16.990
There's a statutory disqualification

380
00:15:16.990 --> 00:15:18.810
so their testimony would be excluded.

381
00:15:18.810 --> 00:15:20.110
Would be the Commonwealth's construction

382
00:15:20.110 --> 00:15:21.460
so if the Commonwealth would not be able to use

383
00:15:21.460 --> 00:15:24.660
that testimony from the motion to suppress hearing

384
00:15:24.660 --> 00:15:27.610
in its case against the juvenile of the child.

385
00:15:27.610 --> 00:15:31.230
However, the child could decide that they wanted to call

386
00:15:31.230 --> 00:15:32.620
the parent to stand to testify.

387
00:15:32.620 --> 00:15:34.270
In which case, if they were able to hit

388
00:15:34.270 --> 00:15:36.010
those couple of wickets to justify

389
00:15:36.010 --> 00:15:37.250
that they needed this testimony

390
00:15:37.250 --> 00:15:38.350
to present their defense.

391
00:15:38.350 --> 00:15:41.210
<v ->But why would they need to introduce</v>

392
00:15:41.210 --> 00:15:43.180
those couple of wickets?

393
00:15:43.180 --> 00:15:44.190
Is that what you're calling it?

394
00:15:44.190 --> 00:15:46.130
<v ->Yes, Your Honor, if they were able to satisfy</v>

395
00:15:46.130 --> 00:15:48.100
that it was material insignificant would be the test

396
00:15:48.100 --> 00:15:50.700
that we would suggest that they would need to establish

397
00:15:50.700 --> 00:15:51.533
to justify...

398
00:15:51.533 --> 00:15:53.260
<v ->Where does that test come from?</v>

399
00:15:53.260 --> 00:15:55.500
<v ->It comes from the same concept</v>

400
00:15:55.500 --> 00:15:57.160
in the spousal privilege realm.

401
00:15:57.160 --> 00:15:59.190
And again, its beyond the scope of the case

402
00:15:59.190 --> 00:16:00.470
that's presented here before the court.

403
00:16:00.470 --> 00:16:01.793
But, we do suggest that it still creates a,

404
00:16:01.793 --> 00:16:04.410
there's a workable system here by which

405
00:16:04.410 --> 00:16:06.420
the child would be able to call their parent

406
00:16:06.420 --> 00:16:08.700
in their defense at trial.

407
00:16:08.700 --> 00:16:09.980
And again, our goal here is just,

408
00:16:09.980 --> 00:16:11.700
from a Commonwealth's perspective just to effectuate

409
00:16:11.700 --> 00:16:13.600
the intent of the legislature which is...

410
00:16:13.600 --> 00:16:17.180
<v ->Speaking of that, did you agree with Justice George,</v>

411
00:16:17.180 --> 00:16:22.180
that this is ambiguous if indeed it's as you say it is

412
00:16:23.370 --> 00:16:25.940
and but looking at the plain meaning that appears

413
00:16:25.940 --> 00:16:27.950
to be something else.

414
00:16:27.950 --> 00:16:30.930
Do you agree it's ambiguous or no?

415
00:16:30.930 --> 00:16:32.057
<v ->No, Your Honor, the Commonwealth...</v>

416
00:16:32.057 --> 00:16:33.310
<v ->Not ambiguous?</v>

417
00:16:33.310 --> 00:16:34.620
<v ->The Commonwealth's perspective is that</v>

418
00:16:34.620 --> 00:16:39.220
there is complicated but unambiguous language

419
00:16:39.220 --> 00:16:40.710
in both introductory phrase

420
00:16:40.710 --> 00:16:42.190
that creates the disqualification.

421
00:16:42.190 --> 00:16:44.300
And then, the secondary phrase that establishes where

422
00:16:44.300 --> 00:16:45.410
the disqualification applies.

423
00:16:45.410 --> 00:16:48.400
<v ->Okay, if you don't say it's ambiguous, that's fine</v>

424
00:16:48.400 --> 00:16:50.280
that's your position.

425
00:16:50.280 --> 00:16:51.670
Would it be fair to,

426
00:16:51.670 --> 00:16:53.810
for someone to say it's absurd, then?

427
00:16:53.810 --> 00:16:58.160
Because if the point as been pointed out is to protect

428
00:16:58.160 --> 00:17:02.633
the child and this would not be protecting the child,

429
00:17:03.490 --> 00:17:07.390
why wouldn't we say that couldn't possible be right?

430
00:17:07.390 --> 00:17:08.230
<v ->Respectfully, Your Honor,</v>

431
00:17:08.230 --> 00:17:09.890
I would disagree with the characterization

432
00:17:09.890 --> 00:17:11.980
that as the legislature crafted this statute

433
00:17:11.980 --> 00:17:13.830
it doesn't achieve that goal of protecting

434
00:17:13.830 --> 00:17:15.440
the parent-child relationship.

435
00:17:15.440 --> 00:17:17.710
It excludes the parent from testifying

436
00:17:17.710 --> 00:17:19.440
in the charging process

437
00:17:19.440 --> 00:17:21.240
whether it be grand jury or inquest.

438
00:17:22.183 --> 00:17:24.100
And it excludes the parent from testifying adverse

439
00:17:24.100 --> 00:17:25.800
to the child's interest at trial.

440
00:17:25.800 --> 00:17:28.660
<v ->Why is that protecting the child?</v>

441
00:17:28.660 --> 00:17:30.340
Why is that protecting the child

442
00:17:31.300 --> 00:17:34.770
if its indeed something that would be helpful to the child?

443
00:17:34.770 --> 00:17:37.910
<v ->All right, I'm not speculating, Your Honor,</v>

444
00:17:37.910 --> 00:17:41.070
it's hard for me to guess what the legislature's process was

445
00:17:41.070 --> 00:17:42.680
but the first thing that comes to mind here

446
00:17:42.680 --> 00:17:45.290
would be regarding their testimony at trial.

447
00:17:45.290 --> 00:17:48.700
Child calls mother hoping the mothers can testify two facts,

448
00:17:48.700 --> 00:17:50.360
one, two, three, four, five.

449
00:17:50.360 --> 00:17:53.070
Mother testifies only the facts one, two, three.

450
00:17:53.070 --> 00:17:54.590
Child, is then, very upset with mother

451
00:17:54.590 --> 00:17:56.390
for not testifying the facts four and five

452
00:17:56.390 --> 00:17:57.540
which the child thought would be helpful.

453
00:17:57.540 --> 00:17:59.520
<v ->What about the opposite?</v>

454
00:17:59.520 --> 00:18:03.010
So let's suppose this hypothetical,

455
00:18:03.010 --> 00:18:05.710
the police are abusing the child

456
00:18:05.710 --> 00:18:08.580
the police don't give him warnings.

457
00:18:08.580 --> 00:18:10.190
And the kid and the mom going,

458
00:18:10.190 --> 00:18:11.640
you know, they didn't do that.

459
00:18:11.640 --> 00:18:14.840
Mom, you've gotta come in and testify

460
00:18:14.840 --> 00:18:17.580
that they didn't do that to me they're lying.

461
00:18:17.580 --> 00:18:20.070
And she goes, I can't do that. (laughs)

462
00:18:20.070 --> 00:18:22.740
Is that gonna promote the,

463
00:18:22.740 --> 00:18:26.310
because of some legal distinction on the meaning of against

464
00:18:26.310 --> 00:18:28.710
based on the third clause and this thing

465
00:18:28.710 --> 00:18:31.273
that's gonna promote the parent-child relationship?

466
00:18:32.130 --> 00:18:33.300
<v ->Respectfully, Your Honor,</v>

467
00:18:33.300 --> 00:18:34.290
from the Commonwealth's perspective,

468
00:18:34.290 --> 00:18:35.640
that was a legislature's decision.

469
00:18:35.640 --> 00:18:37.310
And we do recognized, however,

470
00:18:37.310 --> 00:18:40.176
that statutory disqualification could still yield.

471
00:18:40.176 --> 00:18:41.009
<v ->Uh-huh.</v>

472
00:18:41.009 --> 00:18:43.040
<v ->To the child's decision that they needed that testimony</v>

473
00:18:43.040 --> 00:18:44.363
to present their defense.

474
00:18:45.360 --> 00:18:46.193
<v ->Okay.</v>

475
00:18:46.193 --> 00:18:47.060
<v ->There are no further questions?</v>

476
00:18:47.060 --> 00:18:48.650
<v ->Thank you.</v>
<v ->Thank you, Your Honor.</v>

477
00:18:48.650 --> 00:18:51.150
(man clearing throat)

478
00:18:51.150 --> 00:18:52.300
Okay, Attorney McClain?

479
00:18:56.445 --> 00:18:57.278
(paper rustling)

480
00:18:57.278 --> 00:19:01.530
<v ->Good morning, Michelle McCann on behalf of Eli Vigiani.</v>

481
00:19:01.530 --> 00:19:02.833
May I please the court?

482
00:19:04.670 --> 00:19:06.940
At the outside I've gotta point out

483
00:19:07.850 --> 00:19:09.330
well, in the accounts brief,

484
00:19:09.330 --> 00:19:12.510
it didn't really take a position as to whether

485
00:19:12.510 --> 00:19:14.470
this disqualification applied

486
00:19:14.470 --> 00:19:16.290
the suppression hearing face...

487
00:19:16.290 --> 00:19:17.730
<v ->Can you just speak up a little bit for us?</v>

488
00:19:17.730 --> 00:19:19.720
<v ->Yes, I'll do my best.</v>

489
00:19:19.720 --> 00:19:20.553
<v ->Okay.</v>

490
00:19:20.553 --> 00:19:21.823
<v ->Is this, can you hear me?</v>

491
00:19:21.823 --> 00:19:23.050
<v ->Yes.</v>
<v ->Yes.</v>

492
00:19:23.050 --> 00:19:23.913
<v ->Okay, thanks.</v>

493
00:19:24.750 --> 00:19:28.300
So the Commonwealth is now saying that this disqualification

494
00:19:28.300 --> 00:19:30.640
does not apply to the suppression hearing.

495
00:19:30.640 --> 00:19:34.960
So this suppression hearing giving rights to this appeal

496
00:19:34.960 --> 00:19:38.170
was to take place in January of 2020.

497
00:19:38.170 --> 00:19:40.090
The proceedings were stalled due

498
00:19:40.090 --> 00:19:42.230
to the Commonwealth's objection

499
00:19:42.230 --> 00:19:45.270
to the parent testifying at that proceeding.

500
00:19:45.270 --> 00:19:48.040
It's now almost a year and a half later

501
00:19:48.040 --> 00:19:49.660
and evidently, the Commonwealth,

502
00:19:49.660 --> 00:19:52.430
is withdrawing its objection.

503
00:19:52.430 --> 00:19:55.470
There is no controversy before the court.

504
00:19:55.470 --> 00:19:56.626
<v ->Hm.</v>

505
00:19:56.626 --> 00:19:59.990
<v ->And in light of that and in light of expeditiousness</v>

506
00:19:59.990 --> 00:20:04.110
with which juvenile court proceedings are meant to proceed,

507
00:20:04.110 --> 00:20:06.350
this court could dismiss this appeal

508
00:20:06.350 --> 00:20:08.820
and remanded to the juvenile court

509
00:20:08.820 --> 00:20:10.373
and let the matter proceed.

510
00:20:11.600 --> 00:20:16.370
However, the question presented in this appeal

511
00:20:16.370 --> 00:20:18.430
is really very simple.

512
00:20:18.430 --> 00:20:22.480
I disagree that there is ambiguity in the language

513
00:20:22.480 --> 00:20:25.130
about what testifying against means.

514
00:20:25.130 --> 00:20:28.700
Just because the Commonwealth has taken a position

515
00:20:28.700 --> 00:20:31.120
that's contrary to the language of the statute,

516
00:20:31.120 --> 00:20:33.680
doesn't make it ambiguous.

517
00:20:33.680 --> 00:20:37.050
I think that as the Justice says have wisely pointed out

518
00:20:37.050 --> 00:20:40.970
testifying against tests are commonly understood meaning

519
00:20:42.690 --> 00:20:46.270
and not only to the ordinary person.

520
00:20:46.270 --> 00:20:49.470
But also, and by the way,

521
00:20:49.470 --> 00:20:53.180
that's an important audience for criminal statutes

522
00:20:53.180 --> 00:20:54.483
or for evidentiary statutes

523
00:20:54.483 --> 00:20:56.660
does not just are directed to lawyers

524
00:20:56.660 --> 00:20:58.770
it is directed to ordinary folks.

525
00:20:58.770 --> 00:21:01.780
So that they know what the law is.

526
00:21:01.780 --> 00:21:05.640
But even in realm of decisional case law

527
00:21:05.640 --> 00:21:10.550
to testify against someone is commonly understood to mean

528
00:21:10.550 --> 00:21:15.260
to take the stand as a witness for another party

529
00:21:15.260 --> 00:21:17.350
uh, the adverse party.

530
00:21:17.350 --> 00:21:19.570
So there's no ambiguity there.

531
00:21:19.570 --> 00:21:20.403
This is against the...

532
00:21:20.403 --> 00:21:22.410
<v ->Does Malay create some ambiguity?</v>

533
00:21:22.410 --> 00:21:24.363
I understand the different sentence,

534
00:21:25.795 --> 00:21:28.090
but I had trouble with Malay.

535
00:21:28.090 --> 00:21:29.322
So tell me why,

536
00:21:29.322 --> 00:21:32.550
how you reconcile Malay with this decision?

537
00:21:32.550 --> 00:21:36.270
<v ->Okay, so it's a manner of commas, really.</v>

538
00:21:36.270 --> 00:21:37.310
<v ->I hate that,</v>

539
00:21:37.310 --> 00:21:39.058
because I'm never very good with commas.

540
00:21:39.058 --> 00:21:39.891
(woman laughing)

541
00:21:39.891 --> 00:21:40.724
But go ahead, uh-huh.

542
00:21:40.724 --> 00:21:43.230
<v ->It's tricky, and I think that's why sometimes</v>

543
00:21:43.230 --> 00:21:45.330
for example in this sentence

544
00:21:45.330 --> 00:21:47.830
there is a lack of an oxford comma

545
00:21:47.830 --> 00:21:52.830
doesn't mean that the legislature didn't intend to say

546
00:21:54.500 --> 00:21:58.540
what all of the other words together seem to say.

547
00:21:58.540 --> 00:21:59.373
So...

548
00:21:59.373 --> 00:22:01.080
<v ->Read me the other sentence</v>

549
00:22:02.110 --> 00:22:04.280
the one that is interpreted in Malay.

550
00:22:04.280 --> 00:22:06.470
How was, against, used in Malay?

551
00:22:06.470 --> 00:22:09.840
<v ->Sure, if it's helpful to the court,</v>

552
00:22:09.840 --> 00:22:12.530
I have printed out copies of the language.

553
00:22:12.530 --> 00:22:14.890
If anybody doesn't have it in front of them

554
00:22:14.890 --> 00:22:17.170
I'm prepared to pass it up.

555
00:22:17.170 --> 00:22:21.910
But, in second, the sentence is,

556
00:22:21.910 --> 00:22:24.990
neither husband or wife shall be compelled to testify

557
00:22:24.990 --> 00:22:28.630
in the trial of an indictment, comma,

558
00:22:28.630 --> 00:22:32.720
complaint or other criminal proceeding against the other.

559
00:22:32.720 --> 00:22:37.200
And actually, in Malay, the question was,

560
00:22:37.200 --> 00:22:41.543
whether against the other meant testify against.

561
00:22:42.390 --> 00:22:45.610
And what had happened was that the legislature

562
00:22:45.610 --> 00:22:50.610
had removed a comma in between proceeding and against.

563
00:22:51.230 --> 00:22:55.690
And the defendant in Malay was trying to say,

564
00:22:55.690 --> 00:22:58.940
well, they really meant to keep that comma

565
00:22:58.940 --> 00:23:01.470
which would separate the word, against,

566
00:23:01.470 --> 00:23:04.560
and have it mean they shouldn't testify

567
00:23:04.560 --> 00:23:06.060
at this various proceedings

568
00:23:07.090 --> 00:23:09.000
in a manner that's against the other.

569
00:23:09.000 --> 00:23:10.970
That was the appellant was urging.

570
00:23:10.970 --> 00:23:15.080
And Malay said, no they took out that comma on purpose

571
00:23:15.080 --> 00:23:17.150
to make it consistent with the law

572
00:23:17.150 --> 00:23:20.810
is that the spouse can't testify in a proceeding

573
00:23:20.810 --> 00:23:23.133
when the proceeding is against the other.

574
00:23:24.310 --> 00:23:29.310
And I will say, Mr. McClain was referring

575
00:23:30.210 --> 00:23:34.130
to the prior version of Paragraph fourth,

576
00:23:34.130 --> 00:23:38.730
that child-parent acception in 1986 version

577
00:23:38.730 --> 00:23:43.270
actually included that comma after proceeding

578
00:23:43.270 --> 00:23:44.910
and before against.

579
00:23:44.910 --> 00:23:47.300
So, it was not identical to the spouse

580
00:23:47.300 --> 00:23:49.220
or privilege language at all.

581
00:23:49.220 --> 00:23:51.230
They put in that comma,

582
00:23:51.230 --> 00:23:56.180
that Malay said, would transform this from talking about

583
00:23:56.180 --> 00:23:58.040
the nature of the testimony

584
00:23:58.040 --> 00:23:59.860
to talking about, I'm sorry,

585
00:23:59.860 --> 00:24:02.020
talking about the nature of the proceeding

586
00:24:02.020 --> 00:24:05.004
to talking about the nature of the testimony.

587
00:24:05.004 --> 00:24:08.123
And consistent with that,

588
00:24:09.156 --> 00:24:14.156
the original 1986 disqualification was uniformly described

589
00:24:16.700 --> 00:24:19.560
by this court cases and then the guide to evidence

590
00:24:19.560 --> 00:24:23.850
as a disqualification that a child cannot testify

591
00:24:23.850 --> 00:24:25.850
against the parent.

592
00:24:25.850 --> 00:24:27.620
<v ->Can you just pause one moment</v>

593
00:24:27.620 --> 00:24:30.040
as I put something aside?

594
00:24:30.040 --> 00:24:32.060
I agree with what you just said

595
00:24:32.060 --> 00:24:36.870
and Section two, for the privilege section says, compelled.

596
00:24:36.870 --> 00:24:38.970
And Section four, it doesn't.

597
00:24:38.970 --> 00:24:41.600
But somehow, I don't know,

598
00:24:41.600 --> 00:24:43.323
I don't know how or why.

599
00:24:44.212 --> 00:24:46.693
Can you see this is and saying this is a privilege?

600
00:24:47.610 --> 00:24:48.802
<v ->Yes.</v>

601
00:24:48.802 --> 00:24:51.930
<v ->You and the Commonwealth agree of disqualification?</v>

602
00:24:51.930 --> 00:24:53.023
<v ->That's correct.</v>

603
00:24:54.170 --> 00:24:57.330
And I think that the concern,

604
00:24:57.330 --> 00:24:59.900
my understanding is that the concern that led

605
00:24:59.900 --> 00:25:04.900
to that construction was that it might be,

606
00:25:04.930 --> 00:25:07.880
if this is characterized as a disqualification

607
00:25:07.880 --> 00:25:09.797
there might be some confusion about what that meant.

608
00:25:09.797 --> 00:25:12.710
But that everything was disqualified versus

609
00:25:12.710 --> 00:25:16.620
just testimony against the child being disqualified.

610
00:25:16.620 --> 00:25:19.270
So I think that they sort of,

611
00:25:19.270 --> 00:25:23.923
because of the history of the case law,

612
00:25:25.720 --> 00:25:26.870
you know, actually,

613
00:25:26.870 --> 00:25:31.200
the judge and the court below also kind of have

614
00:25:31.200 --> 00:25:34.350
the same instinct which was to say,

615
00:25:34.350 --> 00:25:37.730
that if the child was permitted to testify

616
00:25:37.730 --> 00:25:39.270
on behalf of the child that

617
00:25:39.270 --> 00:25:42.490
that must be we have to call it a privilege.

618
00:25:42.490 --> 00:25:43.800
And I would disagree,

619
00:25:43.800 --> 00:25:45.550
I would say that it's pretty clear

620
00:25:45.550 --> 00:25:48.140
that it's a disqualification by the language.

621
00:25:48.140 --> 00:25:53.140
And that we have to give that as now a meaning as possible

622
00:25:53.440 --> 00:25:55.700
according to statutory cannons,

623
00:25:55.700 --> 00:25:57.480
uh, cannons of construction.

624
00:25:57.480 --> 00:25:58.313
<v ->I'm confused.</v>

625
00:25:58.313 --> 00:25:59.340
What does that mean then?

626
00:25:59.340 --> 00:26:00.620
So you don't get,

627
00:26:00.620 --> 00:26:02.030
you could put in the evidence

628
00:26:02.030 --> 00:26:05.010
but they can't cross-examine on it?

629
00:26:05.010 --> 00:26:07.160
<v ->Well, that's not our position actually.</v>

630
00:26:07.160 --> 00:26:08.350
<v ->No, I'm...</v>
<v ->You can.</v>

631
00:26:08.350 --> 00:26:12.480
The child, juvenile or defendant

632
00:26:12.480 --> 00:26:15.596
can put the parent on as a witness.

633
00:26:15.596 --> 00:26:16.429
<v ->Right.</v>

634
00:26:16.429 --> 00:26:17.453
<v ->For the defense.</v>

635
00:26:18.290 --> 00:26:21.030
And then, they would be subject to cross-examination.

636
00:26:21.030 --> 00:26:22.770
<v ->Say only the good stuff comes in.</v>

637
00:26:22.770 --> 00:26:23.603
<v ->I couldn't hear you, what's that?</v>

638
00:26:23.603 --> 00:26:24.800
<v ->Only the good stuff comes in,</v>

639
00:26:24.800 --> 00:26:25.893
that's the position, right?

640
00:26:25.893 --> 00:26:28.130
<v ->(laughing) Well, I think that there's always a risk</v>

641
00:26:28.130 --> 00:26:29.845
the bad stuff is gonna come in.

642
00:26:29.845 --> 00:26:31.100
<v ->Well, that's the nature of a privilege, right?</v>

643
00:26:31.100 --> 00:26:31.933
Once waived.

644
00:26:33.003 --> 00:26:34.750
<v ->That's right, I mean, I would.</v>

645
00:26:34.750 --> 00:26:38.230
<v ->As oppose to the disqualification versus where you're at.</v>

646
00:26:38.230 --> 00:26:42.680
<v ->I would urge the court that it would be appropriate</v>

647
00:26:42.680 --> 00:26:45.730
for the juvenile court to limit the scope

648
00:26:45.730 --> 00:26:50.440
of cross-examination to what was broached on direct.

649
00:26:50.440 --> 00:26:53.012
<v ->Well, that's a big huge change in all of us.</v>

650
00:26:53.012 --> 00:26:54.210
(judge laughing)
<v ->It would be.</v>

651
00:26:54.210 --> 00:26:55.043
<v ->All of a sudden.</v>

652
00:26:55.043 --> 00:26:56.857
<v ->I understand.</v>
<v ->Wide open court.</v>

653
00:26:56.857 --> 00:26:58.450
<v ->This is a hypothetical.</v>

654
00:26:58.450 --> 00:27:00.250
Did you say it's a disqualification?

655
00:27:01.394 --> 00:27:02.790
<v ->All right, it's all hypothetical,</v>

656
00:27:02.790 --> 00:27:04.010
I'm sorry, I just couldn't hear

657
00:27:04.010 --> 00:27:05.280
the last part of your question.

658
00:27:05.280 --> 00:27:07.460
<v ->Well, your position is it disqualification?</v>

659
00:27:07.460 --> 00:27:11.510
<v ->It's a disqualification, and I don't necessarily,</v>

660
00:27:11.510 --> 00:27:14.510
also, Mr. McCain was talking about

661
00:27:14.510 --> 00:27:16.510
whether a prior recorded testimony

662
00:27:16.510 --> 00:27:19.840
would be disqualified as well.

663
00:27:19.840 --> 00:27:22.210
And honestly, it's a tricky question

664
00:27:22.210 --> 00:27:24.207
and it's not before the court.

665
00:27:24.207 --> 00:27:25.040
<v ->Uh-huh.</v>

666
00:27:25.040 --> 00:27:27.700
<v ->So I think it's best left for an occasion</v>

667
00:27:27.700 --> 00:27:31.890
when certain circumstances have brought the issues

668
00:27:31.890 --> 00:27:33.880
into relief and it's been fully briefed.

669
00:27:33.880 --> 00:27:36.490
<v ->Can we also take something off the table</v>

670
00:27:36.490 --> 00:27:39.170
that's not a tricky question?

671
00:27:39.170 --> 00:27:42.900
Everybody agrees that proceeding includes

672
00:27:42.900 --> 00:27:45.443
motions to suppress at least now.

673
00:27:47.670 --> 00:27:48.503
<v ->Ah, yes.</v>

674
00:27:48.503 --> 00:27:51.730
I mean, I think that Mr. McClain's position was that

675
00:27:51.730 --> 00:27:54.060
it doesn't include motions to suppress.

676
00:27:54.060 --> 00:27:57.770
And I think that was based on his construction

677
00:27:57.770 --> 00:28:00.080
of the term, against.

678
00:28:00.080 --> 00:28:02.370
But also, you know,

679
00:28:02.370 --> 00:28:05.180
there was an argument in the Commonwealth's brief

680
00:28:06.235 --> 00:28:11.235
that perhaps, well, I'd just address the issue,

681
00:28:11.240 --> 00:28:16.240
that the use of the commas again,

682
00:28:16.530 --> 00:28:20.210
becomes really pivotal in seeing that the phrase,

683
00:28:20.210 --> 00:28:22.550
trial of indictment or complaint

684
00:28:22.550 --> 00:28:27.550
stands alone and separate from other criminal proceeding

685
00:28:27.870 --> 00:28:31.349
which is different than the parent-child and the spouse.

686
00:28:31.349 --> 00:28:32.620
<v ->Counsel, can I ask you?</v>

687
00:28:32.620 --> 00:28:34.980
If I follow up on Justice Gaziano's point

688
00:28:34.980 --> 00:28:38.400
because it's the part that concerns me about whether or not

689
00:28:38.400 --> 00:28:41.710
we construe this is a rule of disqualification.

690
00:28:41.710 --> 00:28:46.710
How is this if it's not a rule of privilege,

691
00:28:48.110 --> 00:28:51.360
how does the trial Judge then assess

692
00:28:51.360 --> 00:28:53.373
the credibility of witnesses?

693
00:28:55.170 --> 00:28:59.230
<v ->Well, the witnesses are subject to cross-examination.</v>

694
00:28:59.230 --> 00:29:01.210
<v ->But if it were a rule of disqualification,</v>

695
00:29:01.210 --> 00:29:03.210
when only like, Justice Gaziano said,

696
00:29:03.210 --> 00:29:05.090
when only the good stuff come in?

697
00:29:05.090 --> 00:29:08.970
<v ->Well, our position is that all it means is that</v>

698
00:29:08.970 --> 00:29:13.970
what can't happen is that the adverse party cannot call

699
00:29:14.640 --> 00:29:16.163
the parent as a witness.

700
00:29:17.070 --> 00:29:20.690
<v ->Your interpretation is the common sense</v>

701
00:29:20.690 --> 00:29:24.910
interpreted language which is the Commonwealth can call

702
00:29:24.910 --> 00:29:28.180
because it would be against the child.

703
00:29:28.180 --> 00:29:31.360
But once they decide to call

704
00:29:31.360 --> 00:29:33.840
would that throw the rest of the law evidence

705
00:29:33.840 --> 00:29:37.450
out the window now they're on the stand?

706
00:29:37.450 --> 00:29:39.000
And the direct is finished

707
00:29:39.000 --> 00:29:41.670
and then you have time for the cross.

708
00:29:41.670 --> 00:29:45.240
You're only requesting that the cross be limited

709
00:29:45.240 --> 00:29:48.800
to the direct because of the implications.

710
00:29:48.800 --> 00:29:50.310
<v ->That's what I'm getting at.</v>
<v ->That's it, precisely.</v>

711
00:29:50.310 --> 00:29:51.143
<v ->Is that your position?</v>

712
00:29:51.143 --> 00:29:52.750
<v ->That is precisely our position.</v>

713
00:29:52.750 --> 00:29:55.150
<v ->Well, if you can't get into this stuff</v>

714
00:29:55.150 --> 00:29:56.270
that's outside of that,

715
00:29:56.270 --> 00:29:59.530
again, there might be stuff outside of that that they're on.

716
00:29:59.530 --> 00:30:02.180
There's on the credibility of the witness testifying.

717
00:30:04.560 --> 00:30:05.910
<v ->Ah, well, I mean,</v>

718
00:30:05.910 --> 00:30:09.490
credibility I think is always on the table.

719
00:30:09.490 --> 00:30:10.323
<v ->Uh-huh.</v>

720
00:30:10.323 --> 00:30:12.816
<v ->But I'm talking about other subject matters.</v>

721
00:30:12.816 --> 00:30:15.620
<v ->Sure, that's what I'm talking about.</v>

722
00:30:15.620 --> 00:30:19.540
So you know, if in weighing whether or not

723
00:30:19.540 --> 00:30:23.700
the mother says that these protections

724
00:30:23.700 --> 00:30:26.170
weren't given to the child,

725
00:30:26.170 --> 00:30:27.050
and in weighing that,

726
00:30:27.050 --> 00:30:28.950
the Commonwealth wants to get into

727
00:30:28.950 --> 00:30:32.050
the fact that there has been institutions in the past

728
00:30:32.050 --> 00:30:35.050
that, you know, when reasons why the mom

729
00:30:35.050 --> 00:30:38.040
or the parent might shade the testimony

730
00:30:38.040 --> 00:30:39.850
that doesn't have directly to do

731
00:30:39.850 --> 00:30:43.760
with just this limited issue on the motions to suppress.

732
00:30:43.760 --> 00:30:45.780
Are you saying that the Commonwealth

733
00:30:45.780 --> 00:30:47.770
couldn't ask about those things?

734
00:30:47.770 --> 00:30:49.741
<v ->No, I'm not taking that position.</v>

735
00:30:49.741 --> 00:30:50.574
<v ->Okay.</v>

736
00:30:50.574 --> 00:30:51.407
<v ->I would think that</v>

737
00:30:51.407 --> 00:30:52.677
the witnesses credibility is (indistinct).

738
00:30:53.514 --> 00:30:54.720
<v ->But I'm confused,</v>

739
00:30:54.720 --> 00:30:55.880
I don't understand the difference

740
00:30:55.880 --> 00:30:59.010
between your position and a privilege.

741
00:30:59.010 --> 00:31:01.590
'Cause you're really converting the disqualification

742
00:31:01.590 --> 00:31:02.820
into a privilege.

743
00:31:02.820 --> 00:31:07.240
<v ->The difference is actually important which is that</v>

744
00:31:07.240 --> 00:31:10.620
if it were a privileged not to testify against.

745
00:31:10.620 --> 00:31:11.453
<v ->Right.</v>

746
00:31:11.453 --> 00:31:13.630
<v ->Then if the juvenile were to call the parent,</v>

747
00:31:13.630 --> 00:31:16.330
the parent would have the right to refuse to testify.

748
00:31:16.330 --> 00:31:17.490
<v ->Right.</v>

749
00:31:17.490 --> 00:31:19.760
<v ->And where it's the disqualification</v>

750
00:31:19.760 --> 00:31:21.507
the parent does not have that right.

751
00:31:21.507 --> 00:31:23.760
The parent is subject to compulsion

752
00:31:23.760 --> 00:31:27.300
just as every other witness in every any other situation

753
00:31:27.300 --> 00:31:29.300
minus discreet privileges.

754
00:31:29.300 --> 00:31:34.300
<v ->Your position which I believe is consistent</v>

755
00:31:36.040 --> 00:31:41.040
with what common sense against means is that

756
00:31:41.430 --> 00:31:44.750
the parent that would be witness

757
00:31:44.750 --> 00:31:48.550
has no privilege not to testify.

758
00:31:48.550 --> 00:31:51.273
They don't have the control over there,

759
00:31:52.330 --> 00:31:57.080
but the juvenile could say,

760
00:31:57.080 --> 00:32:01.210
well parent, you're not being called by the child.

761
00:32:01.210 --> 00:32:06.210
It's not testifying against me so I wanna call you.

762
00:32:06.230 --> 00:32:09.500
So the disqualification doesn't apply at all

763
00:32:09.500 --> 00:32:12.000
and the parent doesn't have a privilege

764
00:32:12.000 --> 00:32:13.880
so they have to take the stand

765
00:32:13.880 --> 00:32:16.520
and that's completely consistent.

766
00:32:16.520 --> 00:32:19.300
Is not with legislative history in the back and forth

767
00:32:19.300 --> 00:32:22.060
between Senator Creem and Senator Tom.

768
00:32:22.060 --> 00:32:24.110
<v ->It is, and in addition,</v>

769
00:32:24.110 --> 00:32:26.810
as far as the legislative history to that point

770
00:32:26.810 --> 00:32:31.810
is that at least two prior drafts were introduced

771
00:32:31.870 --> 00:32:33.573
where there was still a discussion about whether

772
00:32:33.573 --> 00:32:34.830
it's gonna be a privilege.

773
00:32:34.830 --> 00:32:36.900
So these drafts would have,

774
00:32:36.900 --> 00:32:39.230
cannot be compelled to.

775
00:32:39.230 --> 00:32:41.770
But those drafts also included,

776
00:32:41.770 --> 00:32:45.730
except that the parents have exculpatory evidence.

777
00:32:45.730 --> 00:32:49.040
Then then child can compel with the parent to testify.

778
00:32:49.040 --> 00:32:51.970
So clearly, the legislature wanted the child

779
00:32:51.970 --> 00:32:54.730
to be able to compel the parent's testimony

780
00:32:54.730 --> 00:32:57.320
when it would be favorable to the defendant.

781
00:32:57.320 --> 00:32:59.140
In the discussion of the, you know,

782
00:32:59.140 --> 00:33:03.570
after consultation with competent counsel is this

783
00:33:03.570 --> 00:33:05.720
the potential value of this,

784
00:33:05.720 --> 00:33:09.280
exculpatory enough that it's worth the risk

785
00:33:09.280 --> 00:33:11.860
of impeachment or prior recorded testimony.

786
00:33:11.860 --> 00:33:14.140
All of the normal things that you assess

787
00:33:14.140 --> 00:33:15.620
and deciding for example,

788
00:33:15.620 --> 00:33:17.500
whatever defendant you waive

789
00:33:17.500 --> 00:33:19.623
the privilege against self-incrimination.

790
00:33:20.550 --> 00:33:23.300
So just one last effort

791
00:33:23.300 --> 00:33:26.410
at limiting the cross-examination, speaking of,

792
00:33:26.410 --> 00:33:28.130
I mean, so when you waive

793
00:33:28.130 --> 00:33:31.293
a privilege against self-incrimination, for example,

794
00:33:32.977 --> 00:33:35.140
that's the same sort of manner when it's coming

795
00:33:35.140 --> 00:33:38.330
to the scope of direct in order not

796
00:33:38.330 --> 00:33:40.130
to turmoil the privileged.

797
00:33:40.130 --> 00:33:44.210
I would urge that creating a similar limitation

798
00:33:44.210 --> 00:33:48.990
in this context would best serve the purpose

799
00:33:48.990 --> 00:33:50.580
of this legislation.

800
00:33:50.580 --> 00:33:52.270
And in addition would best serve, you know,

801
00:33:52.270 --> 00:33:54.210
the juvenile court has a mandate

802
00:33:54.210 --> 00:33:56.180
to keep the proceedings protective

803
00:33:56.180 --> 00:33:58.230
when in the best interests of the child.

804
00:33:58.230 --> 00:33:59.950
So in this particular context,

805
00:33:59.950 --> 00:34:04.030
it really is appropriate to place such a limitation on cross

806
00:34:04.030 --> 00:34:07.003
if the court is to reach that point.

807
00:34:11.712 --> 00:34:13.500
And I'll just say my last point,

808
00:34:14.460 --> 00:34:16.350
is that there's this question of whether

809
00:34:16.350 --> 00:34:18.570
the disqualification can yield

810
00:34:18.570 --> 00:34:21.800
to the constitutional right to present a defense

811
00:34:21.800 --> 00:34:25.500
and I think that Mr. McClain's construction of things

812
00:34:25.500 --> 00:34:30.500
has the court performing an analysis at many junctures.

813
00:34:31.530 --> 00:34:32.720
I mean, in his example,

814
00:34:32.720 --> 00:34:34.610
it was coming at the point about

815
00:34:34.610 --> 00:34:38.210
is the prior recorded testimony, admissible or not.

816
00:34:38.210 --> 00:34:41.010
And I think it's just a cumbersome.

817
00:34:41.010 --> 00:34:42.660
<v ->Oh, it's not just cumbersome.</v>

818
00:34:42.660 --> 00:34:44.680
It's just as careful pointed out.

819
00:34:44.680 --> 00:34:46.432
If we'd take your position,

820
00:34:46.432 --> 00:34:49.720
we don't have to worry about the compulsory process clause.

821
00:34:49.720 --> 00:34:50.987
<v ->That's correct, that's correct.</v>

822
00:34:50.987 --> 00:34:54.200
<v ->And we avoid the constitutional issue by saying</v>

823
00:34:54.200 --> 00:34:57.440
that against being kept fighting against.

824
00:34:57.440 --> 00:34:59.090
<v ->That's correct.</v>

825
00:34:59.090 --> 00:35:00.630
<v ->Okay, thank you very much.</v>

826
00:35:00.630 --> 00:35:01.560
<v ->Thank you.</v>

827
00:35:01.560 --> 00:35:03.750
<v ->Attorney McClain, I would just ask</v>

828
00:35:03.750 --> 00:35:07.370
that if the Commonwealth's position is indeed

829
00:35:07.370 --> 00:35:12.113
that the statute doesn't apply for motions to suppress.

830
00:35:13.460 --> 00:35:15.440
I would like a 16-mile letter explaining

831
00:35:15.440 --> 00:35:17.590
why we should decide the case.

832
00:35:17.590 --> 00:35:18.860
<v ->Yes, Your Honor.</v>

833
00:35:18.860 --> 00:35:20.536
<v ->Okay, great.</v>

834
00:35:20.536 --> 00:35:21.369
Thank you.