Starr’s Legacy May Include a New Privilege

While the pressure mounts on independent counsel Kenneth Starr to wrap up his investigation of President Clinton’s sex life, momentum is also building for legal reforms to limit future use of his most aggressive investigative tactics.

Public sympathy for the plight of Marcia Lewis, summoned before Starr’s grand jury to give testimony against her daughter Monica Lewinsky, has led to calls for an evidentiary privilege to protect parents and children. Rep. Zoe Lofgren (D-San Jose) has introduced a bill titled the Confidence in the Family Act. It will provide that a witness cannot be compelled to testify in federal civil or criminal proceedings against his or her parent or child. It would also protect confidential conversations and communications like letters and e-mail between parent and child from disclosure in court.

While it surprised many to learn that such legal protection does not already exist, the fact is that until Starr, such protection was widely believed unnecessary. Prosecutors were generally reluctant to build cases by setting up family members against each other. Jurors are likely to be hostile to a prosecutor whose zeal transcends the bounds of common decency, as Starr is belatedly learning from public opinion polls. Only a handful of states have formalized protection for parents and children into an evidentiary privilege.

Evidentiary privileges are a common shield to protect the relationships we value most. The attorney-client, doctor-patient and clergy-penitent privileges are the best known examples. The protection created by Lofgren’s bill closely parallels the protection of the husband-wife privileges, which allow either to refuse to testify against the other and shields confidential communications between them. These privileges are subject to numerous exceptions, such as communications to further criminal activity. Lofgren’s proposal would permit the courts to fashion similar limitations and exceptions for the parent-child privileges.

The spousal privileges promote two social values we consider even more important than the goal of truth-finding in legal proceedings. By not pitting husband and wife against each other in litigation, we hope to preserve the mutual loyalty necessary for preservation of the marital relationship. And by preserving the confidentiality of marital communications, we encourage candor and trust in the sharing of confidences between husband and wife.

These core family values are just as important in the relationship between parents and children. Most parents work diligently to maintain an open door for their children, encouraging them to share even the most embarrassing or incriminating information so that the parents can provide guidance and advice through the inevitable crises of life. How else can parents fulfill their lifelong role of counselor and mentor to their children?

Conscientious parents should not be required to deliver a Miranda warning, that their children’s answers may be used against them, before asking, “What happened at school today?” When the law elevates the relationship of doctor and patient or lawyer and client above that of parent and child, it is out of step with society’s values. Surely, we do not yet value the psychiatrist’s couch above the mother’s lap, yet what we confide to our psychiatrist currently gets more legal protection than the secrets we share with Mom and Dad.

Some may find it ironic that Kenneth Starr’s legal legacy may be a new evidentiary privilege to restrain future investigations. But the pattern is not a new one. The greatest movement to curb the excesses of grand jury investigations in our history was spawned by the tactics of the prosecutors who conducted grand jury investigations of antiwar activists during the Vietnam era. The widely recognized privilege of journalists to shield the identity of news sources grew out of the grand jury subpoenas of the Watergate era.

Justice Louis Brandeis warned that the greatest threats to our liberty lie in insidious encroachment by well-meaning men of zeal. Occasionally, though, the men of excessive zeal become poster boys for meaningful legal reform.