View Full Version : Can I be forced to testify against my own child?


TyronesWife
09-22-2011, 07:54 AM
My 14 yr old son is currently facing 3 felony charges in the state of Florida. Today I received a witness subpoena where they expect me to be a witness for the state. Can they make me testify against my son? I know I'm not under arrest so I cannot plead the right to remain silent but is there anyway out of this? Any advise or even direction where to look this up myself would be greatly appreciated.

LeBeau
09-22-2011, 09:02 AM
Unfortunately, yes, they can compel you to testify. For reasons that defy comprehension, the parent/child relationship is not afforded the same protections as the marital relationship.

nimuay
09-22-2011, 09:09 AM
Do you know what kinds of things they want you to testify about?

TyronesWife
09-22-2011, 09:13 AM
Do you know what kinds of things they want you to testify about?

What they are convinced I saw (even though I really saw nothing) and things they think he told me (wouldn't that be hearsay and not admissible?).

Onedaycloser13
09-22-2011, 09:24 AM
No, I think he told you directly as the defendant of something that happened...it is allowed. If he told someone else and then that person told you that would be hearsay. Not an attorney though, so not certain. There are many hearsay rules, what is allowed and not allowed.

justinr11
09-22-2011, 10:22 AM
Try contacting "handel on the Law", the radio show. Or look for a free consultation ad in the phone book under attorneys. This is way too serious to ask on PTO. It could effect your family for the rest of your life. There may be a third option.

There are five states that have expanded husband wife priveledge to include parents, so it depends what state

yourself
09-22-2011, 11:13 AM
They will do one of 3 things;

1. extremely common: they subpoena you as a witness so that you are not in the Courtroom with your child. The Rule of Sequestration of Witnesses means that you and all the other witnesses are out of the Courtroom so that you don't hear what others say. That means, your testimony is your testimony and not shaped by what others say, making it more "truthful". If the State puts you on it's witness list, whether it fully intends to use your testimony or not, you get put outside the Courtroom for the duration. If you're outside the Courtroom, your LO is denied your immediate, present support. It is a common tactic of the State.

2. Things your child said. There are a number of exceptions to the hearsay rule. These are things that have "indices of reliability". When somebody's under the stress of the situation and being highly emotional, they don't tend to lie (excited utterance exception). Statements against interest is another big one. So, yes, it is technically hearsay, but if it falls into one of the well entrenched exceptions to the hearsay rule, they can and will ask, and it will be admissible. Further, as LeBeau stated, there is no Parent-Child confidentiality. You can't get around testifying that way.

3. what you saw. Most actions are actions, and not communications, so they don't fall under any exclusionary rule.

If they actually call you to the stand, you have to testify. You are not covered by the 5th Amendment as you are not in jeopardy of criminal prosecution in that case. You will be compelled to testify. If you refuse, you will face a fine and possible jail time through the contempt laws. Contempt is both a civil and criminal charge, so basically, the judge can slap you with a large fine. If you still refuse to cooperate, he'll toss you in jail until you are willing to cooperate. If that means you spend a few years in jail, that means you spend a few years in jail. Now, you may think that won't be enough to make you testify against your child, but think of what an indeterminate sentence would mean for you and your family; no income, loss of job, criminal record, etc.

Besides that, if you refuse to testify, others will be brought in to testify to things you've said about the case. There are a whole passel of other exceptions to hearsay for when the witness is unavailable.

So, yes, they can compel you to testify, to both things you've seen and things your son has said. If you fail to testify, others can testify to what they know as a result of what you've said, you'll get fined, and you might wind up spending a good chunk of time in jail.

yourself
09-22-2011, 11:18 AM
Try contacting "handel on the Law", the radio show. Or look for a free consultation ad in the phone book under attorneys. This is way too serious to ask on PTO. It could effect your family for the rest of your life. There may be a third option.

There are five states that have expanded husband wife priveledge to include parents, so it depends what state

radio show? No, no way. That would be a legal show in your market. Chances are somebody working in the State's office will be listening. There's no confidentiality with a radio lawyer. It's a stupid idea.

Don't look up free consultations in the phone book. The vast majority of lawyers that offer free consultations are PI lawyers, interested in recovering for your accident - slip and fall, auto, whatever, and don't know a thing about criminal law.

Here's what you do to help your son and yourself if you want to consult a lawyer (and, it's going to cost you a couple hours of the attorney's time, no way around it). Talk with your son's attorney. That attorney will know 1. that attorney cannot talk with you, so 2. that attorney should give you the name(s) of a few other attorneys who are not conflicted in the case. Call that attorney (those attorneys) if you want to explore other potential options, how to go about testifying, and what liabilities you might face should you actually be called out of the witness room, to the stand.

TyronesWife
09-22-2011, 11:42 AM
Thank you to everyone who answered. Hopefully it won't get as far as trial so this will be a moot point but I will still consult attorneys just to make sure of my options. Thankfully I have a prepaid legal plan through work and I'm pretty sure they cover consultations on all matters so, fingers crossed, it won't be too expensive.

TyronesWife
09-22-2011, 03:53 PM
I have one more question if anyone would indulge me, does anyone know at what stage in the court process a state attorney would wave the child to adult court? My son has already had his first appearance and the state attorney asked for the first possible juvenile allocation. Does that mean my son will likely stay in the juvenile court system or are they more than likely spring a waiver to adult court when his 21 days in DJJ is over?

thatwiz
09-22-2011, 05:29 PM
I think you would have an idea already if that were to happen.

yourself
09-22-2011, 05:37 PM
I have one more question if anyone would indulge me, does anyone know at what stage in the court process a state attorney would wave the child to adult court? My son has already had his first appearance and the state attorney asked for the first possible juvenile allocation. Does that mean my son will likely stay in the juvenile court system or are they more than likely spring a waiver to adult court when his 21 days in DJJ is over?

you really have to talk with his attorney about that one. It really varies, but if he's 14, there's a chance he'll be waived to adult court. The factors are the crime itself, his age, and the State's Attorney. Seriously, some State's Attorneys are good about treating children as children whenever possible, and others think it's their duty to bump as many kids as possible into adult court. His attorney will know of any age limit in that state (some states don't have age limits and theoretically an 8 year old can get tried as an adult), the trends in that Court, with that State's Attorney, and with that judge. I'd like to be able to reassure you on this, but that would be really duplicitous. You need a better opinion - the opinion of somebody who's worked within that particular court.

Generally, though, if they're going to be waived into adult court, it happens pretty quickly. Where I've worked, there has to be a determination in the juvenile court that the case and the child qualify for trial in adult court. I don't know about all jurisdictions, so take that with a grain or bucket of salt. Put your mind to rest and talk with his attorney. His attorney should talk with you about that probability and anything that doesn't effect trial strategy, confidentiality, and the like.

KatieGoLucky
09-22-2011, 06:05 PM
.... Further, as LeBeau stated, there is no Parent-Child confidentiality. You can't get around testifying that way....

Yourself, I "hear" this but I do not understand why the relationship between spouses is protected but not so with your child. If you have a moment could you kindly explain the reason for this differentiation in the laws? Thanks so much.

yourself
09-22-2011, 06:15 PM
.... Further, as LeBeau stated, there is no Parent-Child confidentiality. You can't get around testifying that way....

Yourself, I "hear" this but I do not understand why the relationship between spouses is protected but not so with your child. If you have a moment could you kindly explain the reason for this differentiation in the laws? Thanks so much.

I don't get it either. The general public policy reason for spousal immunity is to encourage communication between married couples. Apparently, that isn't a public interest when it comes to parents and children. Worse, children can be interrogated with only a parent present, so it's a double whammy - the child's already in trouble with the parent, and the parent, charged with protecting the child's rights, is usually more interested in parenting and, "You tell the officer what he wants to know." As far as I'm concerned, parents are not attorneys and should never be in an interrogation room with a child. An attorney should.

So, if it ever comes up as a piece of legislation, support parent/child confidentiality. Support legislation that mandates an attorney for a child in interrogation. Let parents parent. Encourage honesty between child and parent.

KatieGoLucky
09-22-2011, 11:44 PM
I don't get it either. The general public policy reason for spousal immunity is to encourage communication between married couples. Apparently, that isn't a public interest when it comes to parents and children. Worse, children can be interrogated with only a parent present, so it's a double whammy - the child's already in trouble with the parent, and the parent, charged with protecting the child's rights, is usually more interested in parenting and, "You tell the officer what he wants to know." As far as I'm concerned, parents are not attorneys and should never be in an interrogation room with a child. An attorney should.

So, if it ever comes up as a piece of legislation, support parent/child confidentiality. Support legislation that mandates an attorney for a child in interrogation. Let parents parent. Encourage honesty between child and parent.

Hi Yourself,
Thanks for your response because it opens even more questions! :) But, seriously, it does. I think this really is a good conversation to have because I'll tell you the most difficult times I've ever had centered around my son and his "juvenile" offenses. Tyrones Wife, I feel for you so much!

But, to help me understand this a bit more, Yourself, I guess I'm trying to understand where the lines are drawn. I'm thinking maybe my confusion comes down to "hearsay" comments versus "facts." I'm not sure!

Hypotheticals ---
Question 1: What time did your [husband] / [daughter] arrive home that evening?

Question 2: Did you notice that evening any damage to the car your [husband] / [daughter] parked in the garage at approx 1:00 AM?

Question 3: Could you please explain what happened after your [husband] / [daughter] exited the parked car?

Question 4: And when you asked your [husband] / [daughter] what happened to the car, what were you told?

If "this offense" involved my husband, could I refuse to answer all of the above, some of the above? And how about if it was daughter?

I'm sorry I'm dragging this out, but I'm still having a difficult time trying to understand.
Thanks so very much, again.

yourself
09-23-2011, 12:04 AM
Hi Yourself,
Thanks for your response because it opens even more questions! :) But, seriously, it does. I think this really is a good conversation to have because I'll tell you the most difficult times I've ever had centered around my son and his "juvenile" offenses. Tyrones Wife, I feel for you so much!

But, to help me understand this a bit more, Yourself, I guess I'm trying to understand where the lines are drawn. I'm thinking maybe my confusion comes down to "hearsay" comments versus "facts." I'm not sure!

Hypotheticals ---
Question 1: What time did your [husband] / [daughter] arrive home that evening?
this is not a communication, and can be elicited by either spouse or parent


Question 2: Did you notice that evening any damage to the car your [husband] / [daughter] parked in the garage at approx 1:00 AM?
this also is not a communication, and can be elicited by either spouse or parent



Question 3: Could you please explain what happened after your [husband] / [daughter] exited the parked car?
this is generally not a communication, and can be elicited by either spouse or parent.

here're the exceptions:
a. well my husband got out of the car (action, not a communication, discoverable)
b. he slammed the door shut (action, not a communication)
c. he looked at me and said, "I killed the SOB" (communication, may be protected if it's between Spouses if he says it in an area/circumstance where there's an expectation of privacy.
i. Wife is holding infant, the conversation occurs in the garage - there's an expectation of privacy, it's protected.
ii. Wife has aged grandparent with her. aged grandparent is senile, and hasn't said a word in 3 years - protected, expectation of privacy
iii. Car is located in the middle of a shopping mall just before the Day After Thanksgiving mall opening - no expectation of privacy - the conversation is discoverable
iv. back in the garage, she's holding the baby monitor. Husband has no reason to know that the babysitter is in the room with the baby and the other end of the monitor - expectation of privacy (though the State will argue it) and it's protected.
all of those only pertain to spousal privilege, not to parent/child communications which are not protected.




Question 4: And when you asked your [husband] / [daughter] what happened to the car, what were you told?
As noted in number 3, it may be protected if it's your husband AND there's an expectation of privacy. If your daughter makes an admission against interest (I killed the SOB), is all excited/upset and says, "I think the SOB is dead", or there's another exception to the hearsay rule, then it's totally admissible/discoverable.



If "this offense" involved my husband, could I refuse to answer all of the above, some of the above? And how about if it was daughter?

I'm sorry I'm dragging this out, but I'm still having a difficult time trying to understand.
Thanks so very much, again.

TyronesWife
09-23-2011, 01:07 AM
The worst part is that, because of the stress and confusion of the night, I honestly don't remember much after he was arrested. I'm afraid they'll try to bring perjury charges.

yourself
09-23-2011, 01:50 AM
The worst part is that, because of the stress and confusion of the night, I honestly don't remember much after he was arrested. I'm afraid they'll try to bring perjury charges.

They can't bring perjury charges unless you knowingly lie under oath. There's a big difference between, "I don't know, I don't recall, everything's a blur" and, "he was at mass with Father Paul, and he stayed late to discus entering the priesthood".

Do NOT worry about perjury. They have to prove not only that you lied under oath, but that you did it intentionally. You're allowed to get confused on the stand. You're allowed to say, "I don't know" and "I don't recall".

Here's a primer on testifying in front of a jury.

1. consider the question. If it's asking for a yes or no answer, you're not limited to yes or no, you also get I don't know and I don't recall.

2. take a breath before answering the question. This gives the other side a chance to object before you answer. An objection after you answer isn't as helpful.

3. if you get upset, need a break, suddenly have to use the potty, it's ok. Ask the judge for a break. The judge understands more than you think, knows you're nervous, knows that this is an emotional thing for you. Most judges will give you the time necessary to potty, compose yourself, or have a good cry.

4. if at all possible, talk to the jury. Yes, the attorney's asking questions, but you come across a bit more approachable/honest if you talk to the jury.

5. do not treat the State's attorney in a hostile manner. He's going to ask questions, and your answers are not going to change whether you hate him or like him. Being hostile alienates the jury.

6. If the State calls you, that's ok. The Defense will also have a chance to ask you questions that will clarify things, get the stuff in that they want in.

7. you cannot be charged with perjury for not knowing an answer. If you don't know or aren't sure, you don't know or aren't sure. That's the truth; stick to it.

If you need to lie, or you need to protect yourself from criminal liability because you did or said something, then you need to have your own lawyer. Get one. Tell that lawyer why you think you're culpable (I encouraged him, I hid the weapon, I laundered his clothes afterwards, I did something that makes me feel guilty). That lawyer will help protect you from self incrimination. There's no sin in this, either. You aren't a legal expert (even attorneys are not legal experts when their kids are charged, trust me on this), and shouldn't be solely responsible for determining whether you're criminally liable.

Remember, breathe. IF it happens, you'll do fine. IF it happens. Until then, breathe.

TyronesWife
09-23-2011, 02:43 AM
They can't bring perjury charges unless you knowingly lie under oath. There's a big difference between, "I don't know, I don't recall, everything's a blur" and, "he was at mass with Father Paul, and he stayed late to discus entering the priesthood".

Do NOT worry about perjury. They have to prove not only that you lied under oath, but that you did it intentionally. You're allowed to get confused on the stand. You're allowed to say, "I don't know" and "I don't recall".

Here's a primer on testifying in front of a jury.

1. consider the question. If it's asking for a yes or no answer, you're not limited to yes or no, you also get I don't know and I don't recall.

2. take a breath before answering the question. This gives the other side a chance to object before you answer. An objection after you answer isn't as helpful.

3. if you get upset, need a break, suddenly have to use the potty, it's ok. Ask the judge for a break. The judge understands more than you think, knows you're nervous, knows that this is an emotional thing for you. Most judges will give you the time necessary to potty, compose yourself, or have a good cry.

4. if at all possible, talk to the jury. Yes, the attorney's asking questions, but you come across a bit more approachable/honest if you talk to the jury.

5. do not treat the State's attorney in a hostile manner. He's going to ask questions, and your answers are not going to change whether you hate him or like him. Being hostile alienates the jury.

6. If the State calls you, that's ok. The Defense will also have a chance to ask you questions that will clarify things, get the stuff in that they want in.

7. you cannot be charged with perjury for not knowing an answer. If you don't know or aren't sure, you don't know or aren't sure. That's the truth; stick to it.

If you need to lie, or you need to protect yourself from criminal liability because you did or said something, then you need to have your own lawyer. Get one. Tell that lawyer why you think you're culpable (I encouraged him, I hid the weapon, I laundered his clothes afterwards, I did something that makes me feel guilty). That lawyer will help protect you from self incrimination. There's no sin in this, either. You aren't a legal expert (even attorneys are not legal experts when their kids are charged, trust me on this), and shouldn't be solely responsible for determining whether you're criminally liable.

Remember, breathe. IF it happens, you'll do fine. IF it happens. Until then, breathe.

Thank you, honestly I feel no hostility for anyone because I know everyone is just doing their job. I guess I'm just being the overprotective mother. I'm not he kind of chick that thinks her kid should get off scott free, if he is guilty, but I'm also not the girl who is going to let the state rope her son into some b.s. (guess that's just my distrust of law enforcement to expect that).

yourself
09-23-2011, 06:31 AM
Thank you, honestly I feel no hostility for anyone because I know everyone is just doing their job. I guess I'm just being the overprotective mother. I'm not he kind of chick that thinks her kid should get off scott free, if he is guilty, but I'm also not the girl who is going to let the state rope her son into some b.s. (guess that's just my distrust of law enforcement to expect that).

that's ok. Mama Bear syndrome is a good thing. Just remember, Justice has little to do with right and wrong, it's about what gets proved, and what doesn't. There's not always a good relationship between the crime and the sentence. You can always make him pay for anything he did that was wrong, whether or not it was a crime. Concepts out of Restorative Justice can be used outside the law to make a point about wrong, and healing the injuries any bad acts caused. If curious, see http://www.restorativejustice.org/

What I hate seeing is a parent who confuses law enforcement and the Courts with right and wrong. Get through this part, then you can worry about rights and wrongs and injuries.

BTW, a kid who has a good Mama Bear on his side is a kid who won't get eaten by the system. He's a lucky kid.

thatwiz
09-23-2011, 10:06 AM
I agree with yourself if there is something that you don't know or don't remember, say just that-it's not a yes or no when you don't have the answer and an I don't know is much better than a fact that may not be correct or harmful. I know you want the best for your child and that puts him one step ahead with your concern.

KatieGoLucky
09-23-2011, 08:24 PM
this is not a communication, and can be elicited by either spouse or parent


this also is not a communication, and can be elicited by either spouse or parent


this is generally not a communication, and can be elicited by either spouse or parent.

here're the exceptions:
a. well my husband got out of the car (action, not a communication, discoverable)
b. he slammed the door shut (action, not a communication)
c. he looked at me and said, "I killed the SOB" (communication, may be protected if it's between Spouses if he says it in an area/circumstance where there's an expectation of privacy.
i. Wife is holding infant, the conversation occurs in the garage - there's an expectation of privacy, it's protected.
ii. Wife has aged grandparent with her. aged grandparent is senile, and hasn't said a word in 3 years - protected, expectation of privacy
iii. Car is located in the middle of a shopping mall just before the Day After Thanksgiving mall opening - no expectation of privacy - the conversation is discoverable
iv. back in the garage, she's holding the baby monitor. Husband has no reason to know that the babysitter is in the room with the baby and the other end of the monitor - expectation of privacy (though the State will argue it) and it's protected.
all of those only pertain to spousal privilege, not to parent/child communications which are not protected.

As noted in number 3, it may be protected if it's your husband AND there's an expectation of privacy. If your daughter makes an admission against interest (I killed the SOB), is all excited/upset and says, "I think the SOB is dead", or there's another exception to the hearsay rule, then it's totally admissible/discoverable.

Thank you so much for such a clear and succinct explanation. Obviously, you spent some time on your answer and I truly appreciate it. And, I think I finally get it!

justinr11
09-24-2011, 01:34 AM
Thanks for clarifying the dangers of a legal issues radio show. You could go to a pro bono (free) Legal Aid Center or something similar. The information desk at the courthouse might know where to find it. I was impressed by the responses.

NPR did a radio show saying four states allow this parental priveledge:
http://www.npr.org/templates/text/s.php?sId=128797358&m=1

robinbanks
09-24-2011, 07:56 PM
I'm not suggesting anything here.. just stating a fact...

Casey Anthony's mother lied like a mofo to a state jury about her daughter and she was never charged with perjury or false statements. I'm not saying you should do any such thing or am I proposing that you lie. I'm just stating that this happened once before.

kevinmom
09-26-2011, 07:56 PM
I think that is horrible to supeona a parent against a child. Like a marriage relationship is so much more important than parent child relationship. I'm praying for your family and hope you get the answers.