A and M, Application of

• Decision Date: 01 March 1978
• Parties: , 6 A.L.R.4th 532 In the Matter of the APPLICATION OF A and M, Respondents, for an Order Quashing Subpoenas. PEOPLE of the State of New York, Appellant, v. John DOE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 375

403 N.Y.S.2d 375

61 A.D.2d 426, 6 A.L.R.4th 532

In the Matter of the APPLICATION OF A and M, Respondents for an Order Quashing Subpoenas PEOPLE of the State of New York, Appellant, v. John DOE, Respondent.

Supreme Court, Appellate Division, Fourth Department.

March 1, 1978.

Edward C. Cosgrove, Dist. Atty., Buffalo, for appellant; Judith Manzella, Asst. Dist. Atty., Buffalo, of counsel.

Runfola, Birzon & Renda, Buffalo, for respondent; Paul Birzon, Buffalo, of counsel.

Before CARDAMONE, J. P., and SIMONS, DILLON, DENMAN and WITMER, JJ.

DENMAN, Justice.

We are confronted with an issue involving significant competing interests: whether the State, in the exercise of its duty to seek criminal evidence, may compel the parents of a minor child to testify before a Grand Jury concerning admissions by the child which were made in confidence. This issue is, we believe, one of first impression in this State.

The District Attorney of Erie County is conducting an investigation into an alleged arson which occurred at the Student Center of Canisius College in the City of Buffalo. Several witnesses appeared before the Grand Jury and testimony was elicited placing "John Doe", a sixteen year old boy, near the scene of the fire. The District Attorney issued subpoenas to "A" and "M", the youth's parents, allegedly seeking evidence in the form of admissions thought to have been made by the boy to his parents. The parents were not at the scene of the fire and thus have no personal knowledge of the incident.

A motion brought by respondents to quash the subpoenas was granted. The People assert that Trial Term erroneously quashed the subpoenas first, by extending the marital privilege so as to encompass a parent-child privilege and second, by finding that there is a constitutional right of privacy which protects confidential intra-familial communications.

Our examination of respondents' claim of privilege is hindered by the absence of findings of fact with respect to the circumstances under which the alleged admissions were made. Respondents suggest by way of argument that the youth went to his parents seeking guidance and counsel and, in the privacy of their home, disclosed to them certain facts in the expectation that such information would be held in confidence.

Seeking a traditional basis for protecting the disclosures here, the court below suggested that they are encompassed within the marital privilege, CPLR 4502, subd. (b), which generally precludes disclosure of a confidential communication made by one spouse to the other during marriage. That privilege, by its very terms, does not encompass statements by a third party in the presence of a married couple.

Because the marital privilege prevents access to relevant and frequently probative evidence, the exercise of the privilege is carefully restricted and subjected to close scrutiny. Historically, to be given a cloak of confidentiality, communications between husband and wife were required to be either "expressly made confidential, or such as (were) of a confidential nature, or induced by the marital relation." (Parkhurst v. Berdell, 110 N.Y. 386, 393, 18 N.E. 123, 127). No privilege attaches where it is found that there was a lack of confidentiality at the time disclosure was made. Hence disclosure is mandated when matters were discussed in the presence of third parties even, as they may have been in this case, in the presence of offspring old enough to comprehend what is being said. (People v. Melski, 10 N.Y.2d 78, 82, 217 N.Y.S.2d 65, 68, 176 N.E.2d 81, 84, citing with approval Wolfle v. United States, 291 U.S. 7, at 17, 54 S.Ct. 279, 78 L.Ed. 617). The communications at issue here involve revelations by a minor to his parents, not communications made by one spouse to the other as required by CPLR § 4502(b). Furthermore, the presence of the minor child destroys any aura of confidentiality for purposes of the marital privilege which might otherwise have attached to conversations directly between husband and wife at that time.

We conclude not only that the communication in issue does not fall within the marital privilege, but also that there is not, as respondents claim, an attorney-client privilege upon the facts alleged. See, CPLR § 4503(a). The boy's father is an attorney; however, his professional status is coincidental under the circumstances given here. That the boy was speaking to his father qua father, not qua attorney, is borne out by the fact that he also confided in his mother, who is not an attorney. (See, In re Kinoy, D.C., 326 F.Supp. 400).

Although the communication is not protected by a statutory privilege, we do not conclude that it may not be shielded from disclosure. It would be difficult to think of a situation which more strikingly embodies the intimate and confidential relationship which exists among family members than that in which a troubled young person, perhaps beset with remorse and guilt, turns for counsel and guidance to his mother and father. There is nothing more natural, more consistent with our concept of the parental role, than that a child may rely on his parents for help and advice. Shall it be said to those parents, "Listen to your son at the risk of being compelled to testify about his confidences?"

It is urged that the court was in error in finding that the Constitution confers a right of family privacy. That position fails to consider a host of cases which have given constitutional dimension to matters concerning the relational interes of parents and children and which acknowledge "a private realm of family life which the state cannot enter." (Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; see, also, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551; Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989).

In Pierce v. Society of Sisters, supra, and Meyer v. Nebraska, supra, the Supreme Court struck down state laws which sought to regulate, in the latter case, what children could be taught and, in the former, by whom they could be taught. Those decisions, whose continued vitality is clear from their frequent reference, were based on the principle that "the parental right to guide one's child intellectually and religiously is a most substantial part of the liberty and freedom of the parent." (Pierce v. Society of Sisters, supra, 268 U.S. at 518, 45 S.Ct. 571). Dealing with a child labor statute in Prince v. Massachusetts, supra, 321 U.S. at 166, 64 S.Ct. at 442, the court declared that, "(I)t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."

Because the State has traditionally depended on the parent-child relationship to provide the care, nurture, education and moral training of children, the courts have been hesitant to interfere with the autonomy of the family unit. ¹ " . . . (T)he importance of the familial relationship, to the individuals involved and to society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in 'promot(ing) a way of life' through the instruction of children, Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 32 L.Ed.2d 15," Smith v. Organization of Foster Families for Equality and Reform (OFFER), 431 U.S. 816, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14. That is not to say that the State may never intrude its authority to regulate matters touching upon familial relationships, but only that when it attempts to do so, the governmental needs asserted must be carefully examined in order to insure that there exists a legitimate purpose in abridging this familial interest.

The Supreme Court has for many years recognized that, although not specifically defined in the Constitution, there are rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674). Refining that principle in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the Supreme Court declared that there is a constitutional right to privacy, specifically marital privacy, and that such right was to be found within the penumbra of other rights specifically enumerated. Although the several opinions in Griswold disclose a divergence of philosophy as to the source of this right, ² the court articulated for the first time a fundamental right of privacy of constitutional dimension and signaled the willingness of the court to prevent encroachment by the State into certain enclaves of private life. ³

This "right of privacy" had, of course, been a concern of thoughtful jurists prior to Griswold. Justice Harlan, dissenting in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989, examined at length the problem of state intrusion upon the individual's right of privacy. He concluded that "the Constitution protects the privacy of the home against all unreasonable intrusion," not only against the physical intrusion prohibited by the Fourth Amendment, but also against that intrusion which would interfere with the integrity of family life, "something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right." (Poe v. Ullman, supra, at 551-552, 81 S.Ct. at 1781).

In Roe v. Wade, 410 U.S. 113, 93...