It’s not a crime to love a sibling

While the law does not recognize a brother-to-brother privilege — Bill could not, and did not, refuse to testify under subpoena — it likewise does not impose an affirmative obligation on a sibling to voluntarily aid in the capture of a loved one.

Moreover, testimonial privileges are recognized in various state and federal jurisdictions. Husbands and wives, for example, generally may not be forced to testify against each other. Clergymen and penitents enjoy a privilege, as do physicians and patients. We rightly cringe every time a reporter is threatened with jail for refusing to disclose the name of a confidential source, even though federal law, unlike the law in most states, does not recognize a formal privilege.

Siblings, as well as parents and children, do not enjoy legal privileges, but prosecutors often hesitate before coercing blood relatives to testify against loved ones. For example, prosecutors in a 1986 Boston federal grand jury investigation subpoenaed an elderly Italian mother to testify against her son, a Somerville patrolman being investigated in a police-exam cheating scandal. The mother’s request that the court quash the subpoena on familial privilege grounds was, not surprisingly, denied. The mother, nonetheless, refused to testify.

The prosecutor blinked and did not seek to jail her, recognizing perhaps that maternal instinct, combined with old world traditions, rendered that mother impervious to coercion. And jailing her might not have sat well with the public. After all, by not honoring a parent-child testimonial privilege, our federal system differs from Roman law, Jewish law, Catholic canon law, and the laws of many Western European countries.