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Communications between clients and their lawyers; patients and their doctors; husbands and their wives; and the faithful and their clergy have long enjoyed statutory protection as the law seeks to shield relationships so deeply grounded in trust and confidence. Yet there is no such aegis in New York or nearly any other state when a child confides in a parent that he or she has committed a crime, or vice versa. The parents of Amy Grossberg were summoned to testify against their daughter, a New Jersey teenager accused of killing her newborn. Monica Lewinsky’s mother was subpoenaed to appear before a grand jury investigating her daughter’s encounters with President Clinton, and reportedly suffered an anxiety attack as a result. Those cases, and others far less celebrated, have rekindled interest in establishing a statutory parent-child privilege in New York. Various conflicting bills to recognize confidential communications between parent and child have emerged from both houses of the State Legislature and from the Office of Court Administration over the decades, and one even managed to pass the State Senate two years ago. But none of those proposals has generated sufficient support to become law. Now, at the request of a lawmaker, the New York State Law Review Commission is drafting a new version with the hopes of bringing a long-percolating issue to rest. Last week, the commission held a roundtable at Brooklyn Law School, where the issue was debated, but no clear consensus emerged. “There were 30 people there, and there were 32 positions on everything we talked about,” said Michael J. Hutter, a member of the Law Review Commission and professor at Albany Law School. The Law Review Commission, an agency established in 1934 to examine New York statutes and advise the Legislature on areas where it believes reforms are warranted, has been calling for some form of child-parent privilege for nearly 20 years. “There have been numerous instances over the years in which prosecutors have subpoenaed children to testify against their parents, parents to testify against their kids,” Hutter said. “The view is that this is … a real invasion of the family relationship. We recognized that many times legitimate law enforcement needs will demand that, but to do it on a routine basis seems very unseemly.” Currently, only Massachusetts, Minnesota and Idaho have statutes recognizing a parent-child privilege, and there are impassioned arguments on both side of the debate. Opponents of a statutory privilege insist that the government, and the very concept of justice, require that all relevant evidence be brought forth in a criminal case, and they note that it is extremely rare for a child to testify against a parent or vice versa. Proponents say 3,000 years of legal tradition, dating to Roman and Jewish law, mandates a profound respect for the sanctity of the family unit that ought to be statutorily articulated. JUDICIARY SEES PRIVILEGE Although New York has no statutory parent-child privilege, in a line of cases, courts have recognized a common law privilege solely derived from the constitutional right of privacy. That line of cases stretches back to 1978, when the Appellate Division, 4th Department, upheld the application of the privilege in Matter of A and M, 61 AD2d 426, an arson prosecution where the parents of a 16-year-old boy were subpoenaed to testify about admissions allegedly made to them by their son. The court viewed the parent-versus-child confrontation that would have resulted as something of an Orwellian nightmare. “Surely the thought of the State forcing a mother and father to reveal their child’s alleged misdeeds, as confessed to them in private, to provide the basis for criminal charges is shocking to our sense of decency, fairness and propriety,” Justice M. Dolores Denman wrote in Matter of A and M. “It is inconsistent with the way of life we cherish and guard so carefully and raises the specter of a regime which encourages betrayal of one’s offspring,” wrote Denman, who died earlier this year. With Matter of A and M, New York became the first state to recognize judicially a common law parent-child privilege. But the parameters remain very much undefined as the courts grapple with circumstances neither contemplated nor addressed in statutes. In a 1979 Westchester County case, People v. Fitzgerald, 101 Misc2d 712, where a 23-year-old motorist made admissions to his father regarding a hit-and-run accident, the court said the existence of a parent-child privilege was “grounded in law, logic, morality and ethics.” Since then, courts have generally declared that any privilege that may exist involves only those communications made in confidence and for the purpose of obtaining advice or support. GRANDPARENT PRIVILEGE In at least one case, In re Ryan, 474 NYS2d 931, a 1984 Monroe County Family Court matter, the privilege was extended to some grandparents. Nearly two decades after Matter of A and M sparked the debate, a Supreme Court Justice in Erie County parted with Fitzgerald in People v. Hilligas, 175 Misc2d 842 (1998). In Hilligas, the court reasoned that once a child reaches adulthood, the privilege recognized by Denman and her 4th Department colleagues evaporates. The Court of Appeals has addressed the issue indirectly, but has never specifically determined whether a parent-child privilege exists as a constitutional privacy right. In People v. Johnson, 84 NY2d 956 (1994), the Court of Appeals refused to recognize a privilege because the defendant was 28 years old, a ruling consistent with the Erie County decision in Hilligas. But the judges in Albany declined the opportunity to either affirm or reject the existence of a constitutionally based privilege. So, the debate continues. STATE BAR PROPOSAL Two years ago, a proposal advanced by the New York State Bar Association was passed by the State Senate with little discussion and no fanfare. The measure introduced by Senator Nicholas A. Spano, R-Westchester, would have amended the Civil Practice Law and Rules to add a child-parent evidentiary privilege. It would have also amended the Family Court Act to assert that the privilege would not be applicable in child abuse or neglect cases. Spano’s bill would have established a bilateral privilege in which a parent or child could refuse to testify and could also prohibit the other side from testifying against them. It contained no age limit — so, for the purposes of that bill, once a child, always a child. When the bill arrived at the Assembly, Judiciary Committee Chairwoman Helene Weinstein, D-Brooklyn, put a hold on the legislation, pending further research and discussion. At her request, the Law Review Commission is examining the issue anew. The most recent proposal from the Law Review Commission, which generally has the support of the Office of Court Administration, would create a unilateral privilege that would prohibit only forced disclosure by either a parent or child. In other words, if a parent or child wanted to testify against a child or parent, the other side would not have the automatic veto contained in the Senate bill. In addition, that proposal would, like the Senate bill, protect communications regardless of the age of the offspring. Also like the Senate bill, it would not apply in cases of domestic violence or abuse. One of the more controversial aspects of the Commission’s proposal would allow a judge, upon a showing of need, to breach the privilege and force a child or parent to testify. Also under consideration is a proposal to apply the privilege only in Class A felony cases. Hutter said the goal is to craft a proposal that will prevent government encroachment on the child-parent relationship without impeding the truth-seeking mission of the judicial system. The Law Review Commission plans to have a revised proposal before the Legislature early next year, Hutter said.

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