-: SJC-13634 in the matter of an impounded case.
-: Attorney Warren, take your time.
-: Thank you, thank you, Your Honor.
-: Good morning, Chief Justice.
And may it please the court,
John Warren, on behalf of the juvenile.
We request reversal in this case.
When this juvenile's mother was concerned
for her 17-year-old son, she did the right thing.
She intervened and she called the police.
In return, she was forced to take the stand.
And when she refused, she was handcuffed
and brought to the bottom of the courthouse
in the holding cell.
That night, while her other children
were in her Lawrence apartment,
she was put on a police van and taken to jail in Boston.
The next morning, she was brought back to the courthouse.
Facing the prospect of continued incarceration,
this mother who had never been to jail, relented,
and sitting in front of her son,
offered material testimony that led to his conviction.
This cannot be what the Legislature intended
when it amended the parent-child disqualification in 2018.
-: Well, maybe not, not the backstory.
We're talking about the legal issue
of whether or not when it actuates
and whether or not it extends after turning majority.
Now, we've said before,
and if you look back at the case law
from back when the three juveniles
through the impounded case
when Section 20 was first promulgated,
all of those cases deal with teenagers, right?
The three juveniles case,
the case that Justice Ireland talked
about how Section 20 was then enacted
after the three juveniles case,
and the original version of Section 20
talked about unemancipated minors.
So when you look at this rule of disqualification
which we said it was,
the rationale is the preservation
of the parent-child relationship.
And understanding that,
and you certainly cited this in your brief,
that we don't kick our children out after age 18.
There is the rationale for we're only going to protect
that part up to 18 when folks are in the house.
You're not an adult, you're not emancipated.
And so that it would make sense
that this rule of disqualification
would only actuate when the child was under 18 and a minor,
which is what the statute says, minor.
-: So I think Your Honor's right
to bring up that the core intent of the statute
is safeguarding the relationship
between a parent and the minor child.
And our reading of the statute does that
because it affects how a parent relates to the minor child
and interacts and communicates-
-: Your interpretation eliminates the word minor.
-: I disagree, Your Honor.
I would suggest at the time,
a 16-year-old or 17-year-old is encountering problems,
our reading affects how a parent can communicate
with that child and intervene.
It affects how they can listen to their child.
And if they need to call the school, call a counselor,
call the police without fear that,
"Hey, I can't learn too much because for all I know,
a trial's gonna happen when the kid's 18,
and then I'm gonna be a witness in the case."
So what it does is it protects that relationship
between the parent and the minor child
at the time that this stuff is going on.
-: That's not consistent with the text of the statute, right,
because the statute talks about testifying, right?
It doesn't talk about when the case starts.
It doesn't talk about that progression.
It talks about the act of testifying.
-: I would suggest first, Your Honor,
that the statute is ambiguous
because although it does talk about testifying,
it doesn't say when to assess minor child status,
and it doesn't define minor child.
And I'll give the court two examples.
One of which is the spousal disqualification,
which also like the statute, bars testimony,
but it doesn't depend on the marital status
at the time of the testimony.
It depends on the status at the time of the communication.
And I think this court can see the Legislature
was concerned about communications
between children and their parents
because it's right there in the text of the statute.
It's an exception to an exception in the rule
that certain communications are to be protected.
So we know that the Legislature was looking back.
-: The statute doesn't talk
about confidential communications.
It talks about the act of testifying.
-: I would point Your Honor,
to the last section in Paragraph 4.
There's an exception to an exception
that talks specifically about communications.
I would suggest that evidences
of the Legislature's intent to-
-: [Justice Wendlandt] Isn't it, though-
-: concerned about communications.
-: I do wonder if that exception to the exception,
as you call it,
shows that when the Legislature chose to protect
the communication between a parent and a child
when the child is a minor, they knew how to do it.
Whereas, that first sentence that you're relying on
is about the moment of testifying.
It doesn't say the parent shall not testify
as to communications between the parent and the minor child.
That would be a stronger case for you.
-: I think the Legislature could have been more clear
in either direction.
And I suggest it's ambiguous, and I suggest like this-
-: Yeah, but one of the tools we use to resolve,
actually before we say something is ambiguous,
is to look at the statute as a whole.
And here, as I was saying, it looks like the statute knew
how to protect communications between a parent and a child.
And it didn't use that same language
in the first part that you're relying on.
-: So I think because it's assumed
that it was going to protect communications.
And so like the spousal disqualification,
that also bars testimony,
but it doesn't relate to the relationship
at the time of testimony.
-: [Justice Wolohojian] May I ask you a,
I'm sorry, may I ask you a question?
Do you have the statutory language right in front of you?
-: Yes.
-: Okay.
So what I'm puzzled about
is the end of the clause that you're relying on.
So we're talking here about a youthful offender charge,
correct? -: Correct.
-: Do you see the language that says
"youthful offender proceeding in which the victim
in the proceeding is not a family member
and does not reside in the family household"?
I have two questions for you about that language.
The first is, does it attach solely
to youthful offender proceedings?
John: That's not how I read it.
-: You think that that clause attaches
to everything that precedes it
despite the fact that there are commas separating it?
-: Reading it now, thinking about it now, I would say yes.
-: Okay.
And then here, though,
if that's the case here, though,
this case doesn't fall into that category
because it's not a case about a situation
where the victim in the proceeding is not a family member
and does not reside in the household.
So- -: Correct.
-: How does that help you?
-: It helps because it shows the broad intent
of the Legislature to be concerned,
not just about the time of the testimony,
but about communications.
-: But no, because what you just did
was narrow the scope of the protection
if I understood your answer correctly.
You just narrowed the scope of this testimonial restriction
to proceedings in which the victim in the proceeding
is not a family member and does not reside
in the family household.
-: That's not what I'm intending to do, Your Honor.
-: Okay.
So does that language only attach
to youthful offender proceedings?
John: No, Your Honor. But what I'm saying is-
-: All right, can we at least agree
that this is not a case where the,
I don't even know if there is a victim.
But can we at least agree one-
John: Not one of those cases, Your Honor.
-: It's not one of those cases.
So how do you even fall within the statute?
-: I'm not saying that we fall within it.
What I'm saying is the fact that the Legislature
is focused on communications gives insight to the fact
they're not just thinking about this
at the time of the testimony.
And so-
-: I tend to find your,
if we adopt the other side's interpretation,
aren't we just gutting this privilege, I mean,
and allowing the Commonwealth to, you know,
you've got a 17-year-old, wait a little while.
Something that can happen when the person's 17
if we wait two days later to try the case.
Now, all of this is,
it just seems like it's gonna defeat the entire purpose.
-: Exactly, Your Honor.
Because parents aren't gonna relate to their-
-: Can I weigh on one more for you just so you can-
John: Yes, Your Honor.
-: I also don't understand how we're gonna,
if the mother can't help the child
when the child's in trouble,
I just don't,
then the parent-child relationship
is gonna be severely damaged.
I don't understand how this is gonna work
for the Legislature to limit it
in the narrow way of testifying.
So I know that's your argument.
-: That's, exactly right, Your Honor.
It's gonna affect how parents are gonna communicate
with their children.
It's gonna affect how parents are gonna walk their child
through the criminal justice system-
Justice Georges: Well, counsel-
-: which we know that they're required to do.
-: I have to stop you there because you keep making this
a confidential communication case, and it's not.
It's just not.
The mother calls the police because she sees a gun.
This is not the question of what she said
to her minor child.
She saw a gun in the household
and she let a local detective know
that "I've seen this gun in the house."
So this isn't a question
of protecting confidential communications.
-: And parents aren't gonna do that, Your Honor,
if it's read the Commonwealth's way.
And this mother likely wouldn't do it again, right,
because under the Commonwealth's reading,
they might be a witness-
-: Okay. -: in a trial.
And so it protects the bond at the time
that that bond is needed.
-: Could I just pivot you to one thing
because I don't want to necessarily miss this
because I'm really interested in the issue of prejudice.
Because let's just say that we agree
with your interpretation of it.
And I know you characterize this in your brief
that her testimony was critical to the Commonwealth's case.
I just would like to push back on that a little bit
because the government is gonna stand up here and say,
they went and got a warrant.
The trial judge said you can testify
as to why it is you were there.
And Detective Vovalis, I believe,
testified that he was the target.
He testifies to going into the bedroom,
seeing him laying on a bed with his head on a pillow,
which is exactly where they found.
And understanding that the defense
said other people were there
and there were all these other reasons why
you couldn't really say he was the possessor of it.
That was the testimony.
So even with mom's testimony,
even if we say mom shouldn't have been forced to testify,
you still had Detective Vovalis' testimony
where the jury could have come back with the guilty.
So where's the prejudice?
-: Your Honor, first of all, what I would say
is the Commonwealth doesn't argue
that there wasn't prejudice in that case.
Justice Georges: Whether they argue or not
is beside the point.
-: And I would suggest there's good reason
they don't argue it when you look to,
as Your Honor mentioned in an argument last month,
look at how the case was tried,
and you turn to the Commonwealth's closing argument
and you see that they're harping on the mother's testimony.
In fact, they go so far as to say
that the defense arguments
"may have made sense to the jury
without the mother's testimony."
The mother gives the Commonwealth four things in this case.
The mother identifies her son from the photograph.
She says that she called the police about this juvenile
and it involved a gun.
She testified that she told the detective
where he could find the gun in the home.
And she testified that when asked
if she'd ever seen the juvenile with the gun,
she said it was always in the room.
And you'll see in the Commonwealth's closing argument,
they harp on all these points continuously
and very strong. -: But those are all things
that Detective Vovalis testified to.
-: Detective Vovalis did not specifically
identify this juvenile from the photograph.
-: No, no.
But he identified that juvenile as being the person
on the bed- -: Right.
-: when they served the warrant
with his head on the pillow under which they found this gun.
-: That's all true, Your Honor.
And this is a case,
certainly he was very close to that gun in close proximity.
But that's not enough, Your Honor.
And there was no DNA or fingerprint evidence,
as Your Honor mentioned.
There were six people living in the house.
One of them was the juvenile's brother
who was in that very room on another bed.
They searched the entire- -: How old is the other child?
-: I don't believe that's in the record, Your Honor.
They searched the house,
and there was nothing belonging to the juvenile
in this particular room.
And there are no incriminating statements
made by the juvenile.
So, Your Honor, I believe there is clear prejudice,
particularly when you look at how the case was tried.
And if I may, turning back,
I did just wanna highlight two other places
you can turn to in the plain terms of the statute
because I talked about that communications.
A second one would be that this is not just a trial right.
It concerns any proceeding.
And I think you can look at that and say,
"All right, the Legislature's thinking about this
as applying throughout the pendency of the case."
Another plain term you can look at is
although this isn't a juvenile specific statute,
the statute references specifically delinquency
and youthful offender proceedings.
And presumptively, this is gonna be a statute
that arises in the juvenile court.
And because they're talking about juvenile court,
what I would suggest is it should align
with how juvenile court proceeds,
which is that there's continuing jurisdiction
over pending cases even though the child has turned 18.
And this should align with the juvenile court.
That's the only way that this statute makes sense.
And frankly, it doesn't make sense
to be determined on an arbitrary date,
which is the date of the trial.
That doesn't give certainty to inform
how parents are to relate to their minor children
and to help them through the court system.
And finally, Your Honors,
I would ask you to consider the rule of lenity,
and especially for juveniles,
and point the court to the Hanson H. case,
which is a case where this court
took a non-juvenile statute
but still considered Section 53
and interpreting the statute in the light
most favorable to the juvenile.
If there are no other questions,
I rest on my brief for this and the other errors,
all of which I would suggest were prejudicial in this case.
-: Thank you. -: Thank you, Your Honors.
-: Okay, Attorney Cohen.
-: May it please the court,
Jennifer Cohen for the Commonwealth.
As to the parent-child disqualification,
the Commonwealth's argument is purely
one of statutory interpretation.
The Commonwealth acknowledges
that this would've been a very difficult situation
for the mother.
And those words are perhaps inadequate
to describe the situation in which she was put.
And the Commonwealth also- -: She ends up jailed, right?
I mean- -: Correct, Your Honor.
Justice Kafker: Is this really
what the Legislature intended?
I mean, I understand they used the word testifying.
-: Yes.
-: That seems to, but,
so the child, two days.
You wait a week.
Suddenly, the mother has to testify.
But if the child's 17 years and 354 days old,
the mother can't testify.
We see just how damaging this is
to the parent-child relationship here.
You can't imagine the mother's put in a worse situation.
The child's mother is the primary testimony against him.
And the mother's done the right thing
right from the beginning.
She wants this gun off the street.
She wants her child.
But then she becomes the, you know,
the sword that, you know, is used against him.
Is this really what the Legislature wanted here?
I just, I have trouble with that.
-: Well, Your Honor, I would say that in Vigiani,
there's a footnote that points to concerns
about pitting family members against each other.
And I think that regardless of,
I guess, disregarding this situation-
-: But we can't 'cause this, this is exactly the situation.
-: So I would say that the parent-child relationship
is affected regardless of whether the court
takes my interpretation or my brother's interpretation
because the Legislature chose to include the word minor.
As my brother and the Amicus briefs have raised,
the parent-child relationship is different
from the marriage relationship
in that it's continuing throughout your life.
Regardless, it starts when it starts.
Justice Kafker: Hopefully, the marriage relationship
is continuing. -: Hopefully.
-: But that relationship can be affected
by a lack of disqualification,
regardless of whether this is in the juvenile court or not
because that word minor is there.
I think-
-: I get it when we're dealing with children
who are in their 20s or 19, whatever.
But when this happens, this child is a minor.
Isn't their interpretation more logical
that we look at the transaction itself?
Did this happen when this child was a minor?
And is the mother going to be testifying against this child
about what occurred when the child
was under her direct supervision?
It just seems sensible.
-: There are no doubt good policy reasons
for a statute on the disqualification to be worded,
as my brother suggests-
-: But when we interpret language,
that classic line that we always quote.
"We look at the text and then we look at the mischief
for whatever it is that the Legislature
is designed to address."
And here that is protecting the parent-child relationship
in the context of the prosecution of the child.
We don't want to make the mother the,
again, I don't know how to describe it,
basically the primary and determinative witness
in the case against her own child.
-: So I do understand the court's point, but again,
I think that the operative word here is minor,
and that the court could have protected
this relationship in perpetuity, but it didn't.
It chose to include the word minor
because it drew a line at a specific date.
And I would say that this paragraph must be interpreted
in line with the other paragraphs in the statute.
-: How does the mother do her job as a mother
when the child is a child
if she is then gonna testify about what she did,
you know, the moment the child turns 18.
-: I understand that policy-wise, this is difficult.
And I don't think that I have a very good answer
for Your Honor.
-: Well, aren't all of these disqualifications and privileges
things that we look to the Legislature to balance
between the preservation of the spousal relationship,
the parent-child relationship,
and the public's right to truth telling.
And, so each one of these involves a balance.
And so, I guess, I wonder if the Commonwealth's position
is not sort of strict construction on the word minor,
but really that the use of both testified and minor child
indicates the Legislature's line drawing in that way.
-: I would agree with Your Honor.
And I think that testifying, time of testimony,
is the operative moment here,
just as it is with the spousal privilege.
I think, as Your Honor pointed out earlier,
the Legislature chose the words that it did,
and I think the court must interpret those words
in line with its interpretation
of the other paragraphs within the statute.
-: So how do we avoid the gamesmanship
that really seems to be the crux of here?
Because, as your opposing counsel has said,
unlike the spousal privilege,
which is just at the moment of trial, right,
this one goes from inquest to grand jury
to trial to indictment or complaints,
other criminal delinquency
and youthful offender proceedings.
So it seemed like the balance
that the Legislature was striking was broader actually
than the spousal privilege.
So what is your response?
You know, so the parent is not allowed to testify
at the beginning, but then suddenly the child turns 18.
Why would that make any sense?
-: Well, Your Honor, and this isn't an endorsement
of delaying trial in any way,
but I would say is that mischief can be done upon the court
in the context of the spousal privilege as well.
And I would say that obviously we don't want-
-: But not in the same way.
Are you talking about people getting married
in order to avoid testifying?
-: Yes, Your Honor. -: Yeah,
but this is not something that you can just concoct.
Jennifer: No, and it is different.
-: So that, so that is-
-: It is different. -: totally different, yeah.
-: But I think that, nonetheless, there,
I suppose during the course of proceeding,
someone could choose to marry
where they perhaps could not-
-: [Justice Wendlandt] At all choose to have a child.
Is that what you're saying?
-: No, no. (justice chuckles)
-: That they could choose to use the privilege
at a trial where they weren't at an earlier proceeding.
I think that,
I don't have a good answer for Your Honor
about how that can be avoided and how it should be avoided.
But again, I do think that where the statute-
-: [Justice Wolohojian] Well, you could just say
that it will be assessed at the moment of arraignment.
-: That's a possibility, Your Honor.
I would say that's not in the statute.
And that that's (indistinct)- -: Sure.
But neither does it say at trial,
nor does it say at the time of communication, right?
So you could avoid the problem of, you know,
aging past minorhood
by picking it at an earlier date,
like a date that's actually within the control
of the Commonwealth.
-: But then I would say, Your Honor,
would the spousal privilege be assessed
at the time of arraignment?
I think that's not something that has been read
into the statute by the court.
And I don't think the court could read
Your Honor's suggestion into this paragraph either.
-: I actually have a different question for you,
which is the same question I had for Attorney Warren.
And that is the language
that is at the end of the first clause.
Do you read that as attaching
to every part of the, you know,
all of the proceedings different?
-: Yes. -: You do.
So it applies to everything.
So then what does it mean?
I mean, because I mean, do we have a victim in this case?
-: We do not have a victim. -: Okay.
So how are we supposed to interpret this?
-: I think the Legislature was carving out the opportunity
for testimony from a child or a parent
in an instance where there's domestic abuse
or, like, inter-family violence of some sort.
-: So are you saying that this,
I'll just call it privilege as a shorthand,
but it's, I don't think it's really a privilege,
applies only in proceedings in which there is a victim
in the proceeding is not a family member
and does not reside in the family household.
-: I read this to mean
that a parent or child
cannot be called to testify in the circumstances listed
unless the victim is
someone that lives in the household
or is a family member.
-: And then only can testify to anything
that's not the communication about legal advice.
-: Correct.
And I think that is indicative of the careful line drawing
that was undertaken by the Legislature.
-: Did you do any, sorry, are you done?
Did you do any legislative history on this?
Did you look 'cause this is a modified when in 2018.
Is that when? -: Yes, Your Honor.
-: And was there anything useful that you discover
on what they were intending to do
and why they made this change?
-: I didn't find anything useful, Your Honor.
And to be honest, the most that I found was
in the footnote of the Vigiani case.
Justice Georges: Well, they did a wholesale
swap out of the,
this was the prior version of it.
-: It related just to the parents.
-: Yeah.
But can you please, again, I know that Attorney Warren
says that we should look to the closing argument,
but I'm still stuck on the prejudice issue.
A lot of what mom testified seems cumulative
of what Detective Vovalis testified to,
and that there seemed to be plenty upon which a jury
could return a conviction
just based on what Detective Vovalis
was properly allowed to testify to.
I'm not even talking about the video.
Can you talk to us about the prejudice analysis,
even if we were to find or construe the statute
the way Attorney Warren was talking about?
-: Sure, Your Honor.
So I will be honest, the Commonwealth did not argue
that there wouldn't be prejudice in this case.
I think I understand what Your Honor is saying
that the testimony is essentially cumulative.
But the Commonwealth has to acknowledge the fact
that when someone's own parent testifies against them,
that is extremely powerful.
So I think there, it would be hard to argue
that there wouldn't be prejudice in these circumstances.
Justice Georges: That the detectives served a warrant
that he was the target of and found the gun
underneath in the room that he found him on the bed.
-: So I think where you have a mother
who's extremely emotional,
clearly does not wanna be saying what she's saying.
I think in those circumstances,
notwithstanding Detective Vovalis' proper testimony,
the testimony of the mother would've been very damaging
to the case if it was not properly admitted.
-: Counsel, can I ask for a clarification about your brief?
So there's a discussion about,
sorry, can we switch to a different issue?
This is about the lack of written findings on sentencing.
So most of your argument on that
is that the juvenile was not prejudiced
because the judge made extensive oral findings.
And then you give a CF citation to an appeals court decision
saying that an oral recitation
of reasons for revocation when transcribed
satisfies the requirement of a written statement
by the fact finder.
You don't develop an argument
that the statute requiring a written statement
of reasons for a sentencing
is satisfied by the fact that a judge's oral findings
may be transcribed.
Are you conceding that the statute was not followed here
and only making a prejudice argument?
Or are you trying to argue that the holding of King,
that case applies here?
-: I am acknowledging that the proper procedure
was not followed.
There should have been written findings in this case.
However, because of the judge's extensive oral findings,
once they were transcribed,
there's no prejudice to the juvenile.
Justice Dewar: Okay, thank you.
-: If there are no further questions, I'll rest on my brief.