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New trial ordered in murder case

Statements to defendant's father were privileged

By: Bennett Loudon//March 15, 2023

New trial ordered in murder case

Statements to defendant's father were privileged

By: Bennett Loudon//March 15, 2023

A state appeals court has reversed a murder conviction and ordered a new trial because the defendant’s statements to his father were improperly used by the prosecution.

Defendant Benjamin Kemp was convicted in June 2021 in Onondaga County Court before Judge Thomas J. Miller of two counts of second-degree murder, second-degree criminal possession of a weapon, and two counts of attempted first-degree robbery.

Now the Appellate Division of state Supreme Court, Fourth Department, has reversed the verdict and granted a defense motion to suppress statements Kemp made to his father in the interview room at the police station after he asserted his right to counsel.

“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 a parent,” the court wrote.

“Unlike conversations between a suspect and his attorney, however, communications between parent and child do not enjoy the protection of the Sixth Amendment, nor are they privileged either under common law or by statute,” the court wrote.

But the court wrote that “a parent-child privilege has been recognized in certain circumstances.”

“That privilege is rarely more appropriate than when a minor, under arrest for a serious crime, seeks the guidance and advice of a parent in the unfriendly environs of a police precinct,” the court wrote.

Kemp was 15 when he was arrested, so police were required to contact a parent or guardian when he was taken into custody.

As a result of that notification Kemp’s father was with him in the interview room. Kemp asked his father for advice throughout a short interview with two detectives, including asking if he should keep talking to detectives or ask for a lawyer, according to the decision.

Based on his father’s advice, defendant requested an attorney and ended the interview. The detectives then left defendant alone with his father in the interview room, but told them nothing about the presence of recording devices.

“Once ostensibly alone, defendant started to speak to his father, who responded by admonishing defendant not to speak because there were cameras in the room. Defendant nonetheless moved closer to his father, covered his face with his hands, and continued to attempt to converse quietly with his father,” according to the decision.

“We conclude that a parent-child privilege did arise under the circumstances of this case,” the court wrote.

“We recognize, as other courts have, that a young defendant will naturally look to a parent as a primary source of help and advice,” the court wrote.

The court rejected the prosecution’s contention that Kemp waived any privilege by continuing to speak after his father warned him about the cameras.

“Generally, a party may waive any applicable privilege when communications are knowingly made in front of a third party,” the court wrote.

Most of Kemp’s statements to his father are inaudible because of Kemp’s efforts to prevent the conversation from being overheard and recorded, the court noted.

Kemp tried to speak to his father in confidence to seek advice and guidance and the father’s warnings inferred that he wanted Kemp to remain silent and keep his son’s statements confidential, according to the decision.

“Thus, this is not a case where a defendant waived any privilege by knowingly speaking openly in front of third parties,” the court wrote.

The court also ruled that the use of the recording was not harmless.

“Inasmuch as the jury specifically requested that the recording of defendant’s statements to his father be replayed during deliberations, we cannot conclude that the error in admitting the privileged statements was harmless, particularly in light of the quality of the recording, which may have resulted in impermissible jury speculation regarding a purported confession that defendant never in fact made,” the court wrote.

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