-: SJC-13087, Commonwealth v. Eli Vigiani.
-: Okay, Attorney McClain.
-: Good morning, may I please the court?
Ian McClain on behalf of the Commonwealth.
First, I'd like to recognize
this trial prosecutor in this case,
Assistant District Attorney, Michael Glennon,
who is on brief in the case as well.
-: Your Honors, this court should reverse
the motion judge's rulings
that General Law Chapter 233, Section 120, Paragraph 4th,
creates a waivable privilege
and that it applies in a motion to suppress setting.
As with any question of statutory construction,
the purpose is to effectuate the intent of the legislature.
And where the plain language
of the statute is clear and unambiguous,
that's determinative as to the legislature's intent.
-: Counsel, at this point,
does the Commonwealth concede
that it's a rule of disqualification?
-: Yes, Your Honor,
the Commonwealth does believe
that it is a rule of disqualification.
The parties agree that it is a rule of disqualification.
-: Okay, so let's begin from there.
I know part of the basic bone of contention is whether
or not the words against can be read in the ways
that the Commonwealth is saying applies irrespective
of whether the proposed testimony is for or against.
It means all testimony.
But, I found the respondent's brief
fairly compelling on this point.
I know that you raised that there might be some issues
that might come up on cross examination and so forth
that might underscore that the testimony
could then ultimately be used against the child
but talk to me about that language and the way
that it's been parsed out in both of your briefs
that the fair reading in this rule of disqualification
is that it's gotta be evidence that's gonna be used against.
And in this case,
it's gonna be evidence that's gonna be in support
of the juvenile.
So, talk to me about that
because why isn't the fair interpretation of that
just what it sounds like?
-: Yes, Your Honor.
The answer to that question is,
normally, we do use the plain and ordinary meaning
of the word when we're considering the statute.
There's an exception to that any time
that a word has acquired a technical meaning
like a tax case or it's acquired a specific meaning
based on case law.
This court's prior case is construing a statute.
Here, that's the situation.
This court, in 1987, in Malay,
construed the second paragraph of this statute
and determined that that word, against,
referred not to the content of the testimony,
the nature of the testimony, excuse me,
it did not refer to the content of the testimony,
it referred to the nature of the proceeding
we were talking about.
-: But it was a different lead statute
that was being talked about, right?
-: Same stature, yes, Your Honor.
Same statute but a different sentence structure.
-: Right, and.
-: Yeah, not just that.
Section two is a privilege.
Paragraph two is a privilege.
-: Yes, yes, Your Honor.
-: It says a different concept.
-: It is a privilege within the same statute
but we're talking about the same word
being used within the same statute.
So, there are cases that discussed when one word
is given a meaning within a statute
it carries the same meaning throughout the statute.
So, let's talk about the form of Paragraph 4th now,
post 2018 Amendment and the form of Paragraph 2018,
excuse me, the form of Paragraph 4th pre 2018 Amendment.
So, and compare that to the second paragraph
that was construed in Malay.
So, when Malay incorporates that conclusion
about what against was modifying based on the phrase
that immediately proceeded against.
And that was the list of the nature of the proceedings.
-: Uh-huh.
-: So against modified that.
And if you look at the form of Paragraph 4th
that existed pre 2018 Amendment it used the same structure.
Against, was preceded by the list of the types
of proceedings that it was modifying.
So, when the legislature made the change in 2018
they modified the sentence structure and you can see that
because they added an entire additional category of persons.
They added in parents shall not testify
against their children.
So because they added in that second entire category
into that paragraph,
they had to change the sentence structure.
So that clause of the proceedings that against modifies.
-: Sure.
-: Move from before against to after against.
-: Sure, let's take our jurisprudence
on statutory construction.
Let's just concede for, at least, the beginning
that there's some ambiguity.
Because you're arguing the same words that the respondent
is gonna say mean something different.
Okay, so, now we go to the next layer of looking
at the legislative history of this.
Now, we said the common sense view
of the legislative history that we didn't wanna do anything
to undermine the parental child relationship, right?
Do you, at least, concede that that was they were intending
to do to not undermine that relationship?
-: Yes, Your Honor.
-: So how would calling your parent
in support of your decision or your position,
excuse me, the child's position.
How would that be undermining
the relationship between parent and child
when the parent ostensibly would come in
and give testimony that's helpful to the child?
-: Uh-hm, sorry, two responses that, Your Honor.
First is, we're trying to discern the legislature's intent
in the most clearest enunciation of that is the words
that they chose to use.
So if you look at the beginning of that fourth paragraph,
they used the phrase, "shall not testify."
That's language of disqualification,
not language interpretation.
That's clear I think everyone would agree about that.
The legislature kicked off this paragraph by telling us
this is a disqualification.
-: If we're gonna read out the word, against.
-: Uh-huh.
-: I supposed.
-: I respectfully disagree with that, Your Honor,
because the legislature was adopting
the prior judicial construction of against
but what against modifies is not the content
of the testimony but the nature of the proceedings
that applies too.
The difference in where that list of the proceeding is,
is because they added the second category of persons.
So they had to move the list of the proceedings
to after both categories of persons
for the sentence structure to work still.
-: Uh-huh.
-: And that did, yes, Your Honor,
that did create a wrinkle.
But if you look at the places
where these disqualification applies
you can see that they're still effectuating
that intent that we're discussing
which is not to interfere for parent-child relationship.
Because they laid out two sort of categories
where this disqualification applies.
The first, at an inquest or a grand jury.
So that's the process by which we're deciding
if charges are gonna be brought against this individual.
So they're excluding the parents from testifying
in that decision where we're determining
whether charges will even be brought.
And then, second place where they included
this disqualification is in a trial,
if that decision has been made.
Now, as this court pointed out in
the Grand Jury in 2006 version
where they interpreting that introductory phrase of,
"in the trial of."
This court indicated that that phrase
then modifies everything that comes after,
"in the trial of."
We have the same construction here
when they're listing out their nature of proceedings.
Where they listed them as, "trial of"
and indictment or complaint or any other
criminal delinquency or youthful offender proceeding.
Same construction applies.
-: If it were markedly different word.
-: Yes, Your Honor.
-: It's not even close different words.
-: Well, "in the trial of" and "trial of an"
the same concept is they're using that introductory portion
of the phrase to tell you, "this trial of'
modifies everything that's coming after.
-: That would be compelled to testify in a trial of
and indictment complaint or other criminal proceedings.
That's Section two, right?
-: Correct, Your Honor.
-: Okay, Section four, in proceeding before,
first of all it says, shall not testify against parent
or minor child in a proceeding before an inquest,
grand jury, trial or indictment or a complaint
and then another one or any other criminal proceeding.
(paper rustling)
separate,
or any other criminal proceeding.
You can make your argument about two and four,
but the language is dramatically different.
They're not even close.
-: Yes, Your Honor, the legislature did indicate
that this qualification applies in a series of settings.
And so for talking about the phrase, "trial of an"
trial of an indictment or a complaint
or any other criminal delinquency
or youthful offender proceeding.
-: Could you, could you say to anybody other than a lawyer
that testifying against doesn't mean its the,
you don't have to testify against your kid?
With a straight face,
can you say that to anybody else other than a lawyer?
(man laughing) Because.
-: Yes, Your Honor, this statute does aimed
at lawyers and legal practitioners.
It's about an evidentiary concept.
-: Because the lawyers and practitioners doesn't mean
that we have to, you know,
give up our common sense of what, against, means.
-: Yes, Your Honor, the legislature could have drafted
this statute or in a different or more artful manner.
I mean...
-: Because, you know, they had to do with the paragraph one.
I mean, neither husband nor wife shall testify
as to a private conversation with the other.
That's all they have to do,
they could just say, neither parent nor child
shall testify when either is a party.
Not only you said not complicated
it's right in the Section one.
Right there for them to read if they wanna agree
with what you're saying.
-: Yes, Your Honor, they also could have also broken out
and add an additional paragraph to cover
this new disqualification of parent and child.
-: No, no.
But, if they wanna come out the way you do
they just have to plagiarist themselves.
They're the same sections.
-: Doesn't your approach raise all kinds
of constitution problems, too?
Particularly, in this context,
so the very purpose of having the parent
there's to protect the child's right, right?
That's why we provide for this parental consultation
and I mean, essentially,
this child is gonna be left on their own
if their parent can't testify
if there has been abused by the police.
I believe, doesn't it raise all kinds
of constitutional issues that we try to avoid?
-: So yeah, the case that's presented here
is limited to the motion to suppress here
and the Commonwealth's construction of the statute
was you think the plain language was...
-: No, I understand what you're saying
but you gotta remember,
this parent is there to protect that child's rights
during the interview with the police, right?
That's the very purpose of being there
because we don't think kids can stand up
to cops by themselves, right?
-: Correct, Your Honor.
-: And you also have the right
to produce evidence on your own behalf.
So if the police are violating this child's rights,
the parent is the one who's gonna be
the best able to present that case.
You're taking away their ability to defend themselves
in the motion to suppress with this.
It just seems like the constitutional issues
that we wanna avoid by treating this as a privilege
not a disqualification.
And then, if they waive the privilege,
then you get to cross-examine them
they're acting at their own risk.
-: Respectfully, Your Honor,
the Commonwealth's construction is that
this disqualification does not apply
to motions to suppress here.
And that makes sense because the legislation was well aware
of this court's body of law about interested adults.
-: And we're gonna,
you have to win that argument
which is we'll see if you'll win it or not.
-: (laughing) Yes, Your Honor.
From our construction it creates a coherent system
that works so that the interested adults body of law
still completely applies
because there's no preclusion,
no disqualification at the motion to suppress age.
So that child would be able to call
the interested adult parent to testify on their behalf
at the motion to suppress age.
Now the legislature as this court recognized,
is gonna be engaging in balancing competing interests
as this court recognized that in the Grand Jury in 2000.
When you invited them to draft a.
-: Well, I'm confused, though.
So they can testify
but then in a trial they can't testify, right?
-: That was the legislature's decision, Your...
-: And so, we're doing the voluntariness issue, right?
We often have motions to suppress.
We have the same issue crops up at trial
under voluntariness inquiry, right?
-: Yes.
-: So the parent can't describe the coercion of the child
at that hearing, at trial, right?
On the interview, they could testify the motions to suppress
but they lost it the voluntariness issue there
totally unable to testify.
-: Two responses, Your Honor.
First, beyond the scope of the specific issue
before the court here today.
However, a statutory disqualification would yield
to a constitutional claim.
So a defendant would need to raise an issue
and make that we would suggest same sort of way
in the spousal environment.
Where they need to make a material and significant showing
that it's necessary for them to present a defense.
At which time, the constitution would tramp
the statutory disqualification
and the child would be able to call
the parent to testify at trial.
So the legislature, in it's wisdom,
after this court invited to do so in the Grand Jury in 2000,
heard testimonies and evidence the way in competing
and balancing interests as this court indicated.
They were in a group of the best position to do so,
and they crafted a disqualification.
And they crafted a disqualification to apply in two stages.
The charging stage and the trial stage itself.
They excluded the motions to suppress age
it creates no conflict.
-: Well, Counsel, I'm confused by that.
Because it's not a distinction without a difference
because if you're saying that the parent can't testify
at the motions to suppress
and gives this favorable testimony.
And then, you're saying by statute,
the parent would then be disqualified
from testifying a trial.
Well, then, wouldn't that be bringing it within
the hearsay exception?
Because now, you have the testimony was given at trial
the child and the Commonwealth would have.
The same opportunities and have the same interests
in listening the testimony back and forth.
It would meet all of the basis
to be introduces prior recorded testimony.
Wouldn't it, at trial?
-: The Commonwealth should not be able to do so, Your Honor,
because of the disqualification
that the legislature crafted.
We will not be able to use that testimony,
the defendant could potentially call that parent
if they made that preliminary showing.
We would suggest that they would need to do
that preliminary showing of material and significance
to their ability to present a defense.
So our purpose here, Your Honor,
is just to advocate for effectuating
the legislature's intent.
And we think the legislation...
-: Wait, why would that need to be showing?
Why would the defendant need to show
the constitutional need?
Why couldn't the defendant just go under
Justice George's exception to the hearsay rule?
-: Because the parent would be excluded under the statute.
There's a statutory disqualification
so their testimony would be excluded.
Would be the Commonwealth's construction
so if the Commonwealth would not be able to use
that testimony from the motion to suppress hearing
in its case against the juvenile of the child.
However, the child could decide that they wanted to call
the parent to stand to testify.
In which case, if they were able to hit
those couple of wickets to justify
that they needed this testimony
to present their defense.
-: But why would they need to introduce
those couple of wickets?
Is that what you're calling it?
-: Yes, Your Honor, if they were able to satisfy
that it was material insignificant would be the test
that we would suggest that they would need to establish
to justify...
-: Where does that test come from?
-: It comes from the same concept
in the spousal privilege realm.
And again, its beyond the scope of the case
that's presented here before the court.
But, we do suggest that it still creates a,
there's a workable system here by which
the child would be able to call their parent
in their defense at trial.
And again, our goal here is just,
from a Commonwealth's perspective just to effectuate
the intent of the legislature which is...
-: Speaking of that, did you agree with Justice George,
that this is ambiguous if indeed it's as you say it is
and but looking at the plain meaning that appears
to be something else.
Do you agree it's ambiguous or no?
-: No, Your Honor, the Commonwealth...
-: Not ambiguous?
-: The Commonwealth's perspective is that
there is complicated but unambiguous language
in both introductory phrase
that creates the disqualification.
And then, the secondary phrase that establishes where
the disqualification applies.
-: Okay, if you don't say it's ambiguous, that's fine
that's your position.
Would it be fair to,
for someone to say it's absurd, then?
Because if the point as been pointed out is to protect
the child and this would not be protecting the child,
why wouldn't we say that couldn't possible be right?
-: Respectfully, Your Honor,
I would disagree with the characterization
that as the legislature crafted this statute
it doesn't achieve that goal of protecting
the parent-child relationship.
It excludes the parent from testifying
in the charging process
whether it be grand jury or inquest.
And it excludes the parent from testifying adverse
to the child's interest at trial.
-: Why is that protecting the child?
Why is that protecting the child
if its indeed something that would be helpful to the child?
-: All right, I'm not speculating, Your Honor,
it's hard for me to guess what the legislature's process was
but the first thing that comes to mind here
would be regarding their testimony at trial.
Child calls mother hoping the mothers can testify two facts,
one, two, three, four, five.
Mother testifies only the facts one, two, three.
Child, is then, very upset with mother
for not testifying the facts four and five
which the child thought would be helpful.
-: What about the opposite?
So let's suppose this hypothetical,
the police are abusing the child
the police don't give him warnings.
And the kid and the mom going,
you know, they didn't do that.
Mom, you've gotta come in and testify
that they didn't do that to me they're lying.
And she goes, I can't do that. (laughs)
Is that gonna promote the,
because of some legal distinction on the meaning of against
based on the third clause and this thing
that's gonna promote the parent-child relationship?
-: Respectfully, Your Honor,
from the Commonwealth's perspective,
that was a legislature's decision.
And we do recognized, however,
that statutory disqualification could still yield.
-: Uh-huh.
-: To the child's decision that they needed that testimony
to present their defense.
-: Okay.
-: There are no further questions?
-: Thank you. -: Thank you, Your Honor.
(man clearing throat)
Okay, Attorney McClain?
(paper rustling)
-: Good morning, Michelle McCann on behalf of Eli Vigiani.
May I please the court?
At the outside I've gotta point out
well, in the accounts brief,
it didn't really take a position as to whether
this disqualification applied
the suppression hearing face...
-: Can you just speak up a little bit for us?
-: Yes, I'll do my best.
-: Okay.
-: Is this, can you hear me?
-: Yes. -: Yes.
-: Okay, thanks.
So the Commonwealth is now saying that this disqualification
does not apply to the suppression hearing.
So this suppression hearing giving rights to this appeal
was to take place in January of 2020.
The proceedings were stalled due
to the Commonwealth's objection
to the parent testifying at that proceeding.
It's now almost a year and a half later
and evidently, the Commonwealth,
is withdrawing its objection.
There is no controversy before the court.
-: Hm.
-: And in light of that and in light of expeditiousness
with which juvenile court proceedings are meant to proceed,
this court could dismiss this appeal
and remanded to the juvenile court
and let the matter proceed.
However, the question presented in this appeal
is really very simple.
I disagree that there is ambiguity in the language
about what testifying against means.
Just because the Commonwealth has taken a position
that's contrary to the language of the statute,
doesn't make it ambiguous.
I think that as the Justice says have wisely pointed out
testifying against tests are commonly understood meaning
and not only to the ordinary person.
But also, and by the way,
that's an important audience for criminal statutes
or for evidentiary statutes
does not just are directed to lawyers
it is directed to ordinary folks.
So that they know what the law is.
But even in realm of decisional case law
to testify against someone is commonly understood to mean
to take the stand as a witness for another party
uh, the adverse party.
So there's no ambiguity there.
This is against the...
-: Does Malay create some ambiguity?
I understand the different sentence,
but I had trouble with Malay.
So tell me why,
how you reconcile Malay with this decision?
-: Okay, so it's a manner of commas, really.
-: I hate that,
because I'm never very good with commas.
(woman laughing)
But go ahead, uh-huh.
-: It's tricky, and I think that's why sometimes
for example in this sentence
there is a lack of an oxford comma
doesn't mean that the legislature didn't intend to say
what all of the other words together seem to say.
So...
-: Read me the other sentence
the one that is interpreted in Malay.
How was, against, used in Malay?
-: Sure, if it's helpful to the court,
I have printed out copies of the language.
If anybody doesn't have it in front of them
I'm prepared to pass it up.
But, in second, the sentence is,
neither husband or wife shall be compelled to testify
in the trial of an indictment, comma,
complaint or other criminal proceeding against the other.
And actually, in Malay, the question was,
whether against the other meant testify against.
And what had happened was that the legislature
had removed a comma in between proceeding and against.
And the defendant in Malay was trying to say,
well, they really meant to keep that comma
which would separate the word, against,
and have it mean they shouldn't testify
at this various proceedings
in a manner that's against the other.
That was the appellant was urging.
And Malay said, no they took out that comma on purpose
to make it consistent with the law
is that the spouse can't testify in a proceeding
when the proceeding is against the other.
And I will say, Mr. McClain was referring
to the prior version of Paragraph fourth,
that child-parent acception in 1986 version
actually included that comma after proceeding
and before against.
So, it was not identical to the spouse
or privilege language at all.
They put in that comma,
that Malay said, would transform this from talking about
the nature of the testimony
to talking about, I'm sorry,
talking about the nature of the proceeding
to talking about the nature of the testimony.
And consistent with that,
the original 1986 disqualification was uniformly described
by this court cases and then the guide to evidence
as a disqualification that a child cannot testify
against the parent.
-: Can you just pause one moment
as I put something aside?
I agree with what you just said
and Section two, for the privilege section says, compelled.
And Section four, it doesn't.
But somehow, I don't know,
I don't know how or why.
Can you see this is and saying this is a privilege?
-: Yes.
-: You and the Commonwealth agree of disqualification?
-: That's correct.
And I think that the concern,
my understanding is that the concern that led
to that construction was that it might be,
if this is characterized as a disqualification
there might be some confusion about what that meant.
But that everything was disqualified versus
just testimony against the child being disqualified.
So I think that they sort of,
because of the history of the case law,
you know, actually,
the judge and the court below also kind of have
the same instinct which was to say,
that if the child was permitted to testify
on behalf of the child that
that must be we have to call it a privilege.
And I would disagree,
I would say that it's pretty clear
that it's a disqualification by the language.
And that we have to give that as now a meaning as possible
according to statutory cannons,
uh, cannons of construction.
-: I'm confused.
What does that mean then?
So you don't get,
you could put in the evidence
but they can't cross-examine on it?
-: Well, that's not our position actually.
-: No, I'm... -: You can.
The child, juvenile or defendant
can put the parent on as a witness.
-: Right.
-: For the defense.
And then, they would be subject to cross-examination.
-: Say only the good stuff comes in.
-: I couldn't hear you, what's that?
-: Only the good stuff comes in,
that's the position, right?
-: (laughing) Well, I think that there's always a risk
the bad stuff is gonna come in.
-: Well, that's the nature of a privilege, right?
Once waived.
-: That's right, I mean, I would.
-: As oppose to the disqualification versus where you're at.
-: I would urge the court that it would be appropriate
for the juvenile court to limit the scope
of cross-examination to what was broached on direct.
-: Well, that's a big huge change in all of us.
(judge laughing) -: It would be.
-: All of a sudden.
-: I understand. -: Wide open court.
-: This is a hypothetical.
Did you say it's a disqualification?
-: All right, it's all hypothetical,
I'm sorry, I just couldn't hear
the last part of your question.
-: Well, your position is it disqualification?
-: It's a disqualification, and I don't necessarily,
also, Mr. McCain was talking about
whether a prior recorded testimony
would be disqualified as well.
And honestly, it's a tricky question
and it's not before the court.
-: Uh-huh.
-: So I think it's best left for an occasion
when certain circumstances have brought the issues
into relief and it's been fully briefed.
-: Can we also take something off the table
that's not a tricky question?
Everybody agrees that proceeding includes
motions to suppress at least now.
-: Ah, yes.
I mean, I think that Mr. McClain's position was that
it doesn't include motions to suppress.
And I think that was based on his construction
of the term, against.
But also, you know,
there was an argument in the Commonwealth's brief
that perhaps, well, I'd just address the issue,
that the use of the commas again,
becomes really pivotal in seeing that the phrase,
trial of indictment or complaint
stands alone and separate from other criminal proceeding
which is different than the parent-child and the spouse.
-: Counsel, can I ask you?
If I follow up on Justice Gaziano's point
because it's the part that concerns me about whether or not
we construe this is a rule of disqualification.
How is this if it's not a rule of privilege,
how does the trial Judge then assess
the credibility of witnesses?
-: Well, the witnesses are subject to cross-examination.
-: But if it were a rule of disqualification,
when only like, Justice Gaziano said,
when only the good stuff come in?
-: Well, our position is that all it means is that
what can't happen is that the adverse party cannot call
the parent as a witness.
-: Your interpretation is the common sense
interpreted language which is the Commonwealth can call
because it would be against the child.
But once they decide to call
would that throw the rest of the law evidence
out the window now they're on the stand?
And the direct is finished
and then you have time for the cross.
You're only requesting that the cross be limited
to the direct because of the implications.
-: That's what I'm getting at. -: That's it, precisely.
-: Is that your position?
-: That is precisely our position.
-: Well, if you can't get into this stuff
that's outside of that,
again, there might be stuff outside of that that they're on.
There's on the credibility of the witness testifying.
-: Ah, well, I mean,
credibility I think is always on the table.
-: Uh-huh.
-: But I'm talking about other subject matters.
-: Sure, that's what I'm talking about.
So you know, if in weighing whether or not
the mother says that these protections
weren't given to the child,
and in weighing that,
the Commonwealth wants to get into
the fact that there has been institutions in the past
that, you know, when reasons why the mom
or the parent might shade the testimony
that doesn't have directly to do
with just this limited issue on the motions to suppress.
Are you saying that the Commonwealth
couldn't ask about those things?
-: No, I'm not taking that position.
-: Okay.
-: I would think that
the witnesses credibility is (indistinct).
-: But I'm confused,
I don't understand the difference
between your position and a privilege.
'Cause you're really converting the disqualification
into a privilege.
-: The difference is actually important which is that
if it were a privileged not to testify against.
-: Right.
-: Then if the juvenile were to call the parent,
the parent would have the right to refuse to testify.
-: Right.
-: And where it's the disqualification
the parent does not have that right.
The parent is subject to compulsion
just as every other witness in every any other situation
minus discreet privileges.
-: Your position which I believe is consistent
with what common sense against means is that
the parent that would be witness
has no privilege not to testify.
They don't have the control over there,
but the juvenile could say,
well parent, you're not being called by the child.
It's not testifying against me so I wanna call you.
So the disqualification doesn't apply at all
and the parent doesn't have a privilege
so they have to take the stand
and that's completely consistent.
Is not with legislative history in the back and forth
between Senator Creem and Senator Tom.
-: It is, and in addition,
as far as the legislative history to that point
is that at least two prior drafts were introduced
where there was still a discussion about whether
it's gonna be a privilege.
So these drafts would have,
cannot be compelled to.
But those drafts also included,
except that the parents have exculpatory evidence.
Then then child can compel with the parent to testify.
So clearly, the legislature wanted the child
to be able to compel the parent's testimony
when it would be favorable to the defendant.
In the discussion of the, you know,
after consultation with competent counsel is this
the potential value of this,
exculpatory enough that it's worth the risk
of impeachment or prior recorded testimony.
All of the normal things that you assess
and deciding for example,
whatever defendant you waive
the privilege against self-incrimination.
So just one last effort
at limiting the cross-examination, speaking of,
I mean, so when you waive
a privilege against self-incrimination, for example,
that's the same sort of manner when it's coming
to the scope of direct in order not
to turmoil the privileged.
I would urge that creating a similar limitation
in this context would best serve the purpose
of this legislation.
And in addition would best serve, you know,
the juvenile court has a mandate
to keep the proceedings protective
when in the best interests of the child.
So in this particular context,
it really is appropriate to place such a limitation on cross
if the court is to reach that point.
And I'll just say my last point,
is that there's this question of whether
the disqualification can yield
to the constitutional right to present a defense
and I think that Mr. McClain's construction of things
has the court performing an analysis at many junctures.
I mean, in his example,
it was coming at the point about
is the prior recorded testimony, admissible or not.
And I think it's just a cumbersome.
-: Oh, it's not just cumbersome.
It's just as careful pointed out.
If we'd take your position,
we don't have to worry about the compulsory process clause.
-: That's correct, that's correct.
-: And we avoid the constitutional issue by saying
that against being kept fighting against.
-: That's correct.
-: Okay, thank you very much.
-: Thank you.
-: Attorney McClain, I would just ask
that if the Commonwealth's position is indeed
that the statute doesn't apply for motions to suppress.
I would like a 16-mile letter explaining
why we should decide the case.
-: Yes, Your Honor.
-: Okay, great.
Thank you.