Family Court Gag Orders Impede Defense Against Criminal Charges

Affiliate: ACLU of New York
March 30, 2017 2:00 pm

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The New York Civil Liberties Union filed an amicus brief in state appeals court today arguing that defendants have a free speech right to share relevant information obtained in family court proceedings with their attorneys in related criminal cases.

The NYCLU filed its brief in two related appeals, both involving Bronx women charged with homicide who have two different attorneys for related family court and criminal matters. In each case, the family court judge has barred the defendant and her family court attorney from sharing or even discussing with her criminal attorney information turned over to her during family court proceedings that is pertinent to her criminal charges.

“Full and open communication between a person accused of a crime and her criminal defense attorney is absolutely vital to the fair administration of justice, and it’s clearly protected by the First Amendment,” said NYCLU Staff Attorney Bobby Hodgson. “These orders unlawfully prevent defendants from talking with the only people on their side during some of the most critical moments of their cases, and their lives.”

The NYCLU is concerned that such non-disclosure orders have become widespread practice in Bronx and Brooklyn family courts. It filed another amicus brief in a similar appeal brought by Brooklyn Defender Services in Brooklyn in February, where a decision is pending. Non-disclosure orders are especially harmful to poor people who cannot afford to avoid this problem by hiring one lawyer for both their criminal and family court cases.

Justine D. and Yanny M. have each been barred by a Bronx County Family Court judge from sharing information and records turned over by the Administration for Children’s Services (ACS), including caseworker notes regarding witnesses with information relevant to each woman’s criminal charges. The orders also prevent them from asking their criminal attorneys about the potential legal impact of these records on their criminal cases. Lawyers for ACS and for the children involved in these family court actions all agree that the records should be shared with the women’s criminal defense attorneys, and that no harm would come from such disclosure.

Family court judges have issued non-disclosure orders citing general “confidentiality” statutes designed to prevent sensitive family court information from becoming public. However, the NYCLU argues that criminal attorneys are already bound by a duty to treat such information confidentially. Attorney-client communication is protected by the First Amendment, and cannot be restricted unless the order is narrowly tailored to further a compelling government interest – a test that these orders fail.

While the NYCLU specifically addresses the First Amendment implications of these family court orders in today’s brief, the appellants – represented by the Bronx Defenders – and other amici in the cases argue that such orders also violate state law and the right to effective assistance of counsel.

For more information, and to read the briefs, visit:

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