If a Child Is on Trial, Can a Parent Be a Witness?

The case asks Massachusetts justices to balance family values, constitutional rights and a confusing new law.

Plexiglas shields the courtroom witness stand in the Southern District of New York’s Daniel Moynihan Courthouse — part of a remodel with public health in mind for reopening the courthouse during the coronavirus pandemic. (Courthouse News photo/Adam Klasfeld)

BOSTON (CN) — The Massachusetts Supreme Court struggled Friday to figure out when a parent can be called to testify if their child is accused of a crime.

Three years ago Massachusetts became the fifth state in the country to adopt a rule that parents don’t have to testify against their minor children. But prosecutors are now trying to turn the law around and use it against juvenile defendants, by saying the law prohibits any testimony by a parent — even if it would help the child.

Justice David Lowy found this claim unlikely. “Can you explain to anybody other than a lawyer, with a straight face, that testifying against means testifying for?” he asked Assistant District Attorney Ian MacLean at oral argument this morning.

“Well, the statute was written for lawyers,” MacLean answered.

“Maybe, but we don’t have to give up our common-sense understanding of what ‘against’ means,” Lowy responded.

Chief Justice Kimberly Budd piled on. “Would it be fair to say that that’s absurd?” she asked. “Why wouldn’t we say that that can’t possibly be right?”

Budd noted that the purpose of the law was to protect children, and if a parent can’t testify at all, “why is that protecting the child if it’s something that would be helpful to the child?”

The case involves Eli Vigiani, a 16-year-old who was charged with possessing an unlicensed gun after a shooting incident at a subway stop near the Boston Aquarium. His mother, Leslie Berrios Acosta, accompanied him to the police station.

Vigiani claims that police violated his Miranda rights because, after he asked for a lawyer, they handcuffed him and threatened him if he didn’t cooperate. He also claims that they lied to his mother to get her to encourage him to talk.

Vigiani wants his mother to testify to the police misconduct so the statements he eventually made can’t be used at trial.

A 2018 state law says that in criminal cases, “a parent shall not testify against the parent’s minor child.” But the issue here is whether parents can testify for — not against — their children.

Only four other states have laws restricting parents’ testimony: Connecticut, Idaho, Minnesota and New York. Federal courts have almost unanimously allowed or required parents to testify.

But while the Massachusetts court seemed persuaded that Vigiani should be able to call his mother — “Why isn’t the interpretation of ‘against’ just what it sounds like?” asked Justice Serge Georges — the problem is that the mother could then be cross-examined, in which case she might be forced to say things that would be against Vigiani’s interest.

That’s “the key issue,” said attorney Todd Presnell in an interview. Presnell practices with the Bradley firm in Nashville and writes a blog on when witnesses are allowed to testify.

In federal courts, cross-examination is limited to the subjects that were brought up in direct testimony. But in Massachusetts, as in most states, cross-examination is “wide-open,” Presnell noted. If the mother testified about police misconduct, he said, the prosecution could then ask her, “Well, did your child have a gun? Where was he on the day in question?” And then the mother might be testifying against the child.

Defense attorney Michelle Menken said the court could solve the problem by adopting the federal rule that cross-examination is limited to what was brought up on direct.

“Boy, that would be a huge change in our practice,” worried Justice Scott Kafker.

“We can’t just throw the rules of evidence out the window,” added Lowy.

Justice Frank Gaziano sardonicaly referred to this approach as “only the good stuff comes in.”

Georges noted that “there might be stuff that bears on the witness’s credibility — what if there are reasons why the mom might shade the testimony?”

Menken conceded that it would be fair for the prosecution to bring up unrelated matters for purposes of impeachment.

The 2018 law was passed by the state’s Democratic Legislature over the objections of Republican Governor Charlie Baker. Baker agreed that parents should be able to refuse to testify against a child but wanted them to have the option of doing so if they felt that it was the best thing for their family in the circumstances.

All seven judges on the state’s high court were appointed by Baker.

Although federal courts and all but five states say that parents can be forced to testify against their children, “the question to ask is what are the legal and social costs of not protecting this relationship,” said Hillary Farber, a professor at the University of Massachusetts School of Law who has written extensively on this issue.

“It’s important to appreciate the leverage a prosecutor has in a case when there exists a legal means to compel testimony from a parent,” she said, noting the widespread criticism that occurred when Ken Starr called Monica Lewinsky’s mother before a grand jury and demanded to know what her daughter had told her about her sex life.

“All decency is lost when you have family members testifying,” Washington attorney Jeffrey Jacobovitz commented at the time.

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