The priest-penitent privilege originated in pre-reformation England when courts began to recognize the traditional "Seal of Confession" established by the Roman Catholic Church in the fifth century A.D. The privilege permitted priests to refuse to disclose confidential confessional communications because disclosure could result in excommunication from the church.
However, even during this time the privilege was not absolute. In Garnet's case, a priest was tried and convicted for failing to disclose confessional communications relating to a plot to assassinate King James I with gunpowder. Some scholars have accepted this as proof that in treason cases, the government made an exception to the privilege. Subsequent to Garnet's case, the privilege was codified by the Anglican Church, although when the crime was very serious, an exception was made so that the receiver could be sentenced to death for failure to disclose the communication.
After the Protestant Reformation, which eliminated compulsory confession in the Anglican Church, the importance and recognition of the privilege began to fade. Today, this privilege is still not recognized in England, though several other countries in Europe recognize the privilege.
The first US state to recognize the Priest-Penitent privilege by statute was New York. New York's statute originally provided that, "No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules of practice of such a denomination."
The People v. Phillips (New York 1813), the court articulated a basis for the privilege:
It is essential to the free exercise of a religion, that its ordinances should be administered-that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance.
People v. Carmona is a typical case interpreting the priest-penitent privilege. In that case, the defendant sought reversal of his conviction for murder after the lower court refused to exclude statements he made to a clergyman. The court held that because the statements were made to a priest for the purposes of obtaining spiritual guidance they should have been excluded. The privilege can be interpreted very broadly. At least one New York court reached the conclusion that confidential communications made at an Alcoholics Anonymous meeting would qualify under this statute. The court reasoned that AA's 12 steps contained numerous religious references, the meetings opened with prayers and prior circuit precedent had held that AA was a religion for purposes of the Establishment clause. The case was eventually reversed, but only on the grounds that the defendant failed to prove that his statements were made for the purpose of obtaining spiritual guidance.
Currently all 50 states recognize the priest-penitent privilege by statute although many provide for special circumstances where the privilege is abrogated. For instance, in Massachusetts, Illinois, Mississippi, Colorado and New York, clergy members must report child abuse under existing statutory reporting schemes. Similarly, several states abrogate the privilege for cases of elder abuse.
Elements of the Privilege
Not all communications between priests and penitent create the privilege. Although the rule varies from jurisdiction to jurisdiction the following elements generally apply:
- confidentially made
- to a minister
- acting in his or her professional capacity as a spiritual adviser.
- Some states have added a fifth prong, that the confidential communication must be delivered "in the course of discipline."
If the communication fails to include any one of these elements, the privilege does not exist.
As a general rule, the privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased.
Both parties may hold this privilege. Thus, even if the confessor waives the privilege, the priest may still exercise the privilege in order to protect against testifying as to the confidential communications.
Priest-Penitent Privilege in Federal Court
Today, no statutory privilege protecting priest-penitent communications exists in Federal Court, unless the court is sitting in diversity. In that case, Fed. R. Evid. 501 states that "the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law."
However, even in the absence of diversity jurisdiction, Fed. R. Evid. 501 gives a judge the inherent power to create the priest-penitent privilege. The rule states that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Thus, Fed. R. Evid. 501 gives the federal courts broad powers to create and define the contours of privileges as the need arises. As a result, Proposed Fed. R. Evid. 506, which would have covered the priest-penitent privilege, was never passed.
Despite the paucity of federal common law approving the privilege, some federal judges have created this right. For instance, in Mullen v. United States, Judge Fahy stated that "recognition of the privilege in federal courts does not depend upon finding that it has either existed uniformly at common law or has been approved in terms by acts of Congress"
In 1990, after a direct challenge under Fed. R. Evid. 501, the Third Circuit was the first to formally approve the privilege when it held that it would "protect communications made (1) to a clergyperson (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of privacy." The judge cited Proposed Fed. R. Evid. 506 as a guideline for this new common law privilege.
Although the privilege has had widespread support, the priest-penitent privilege came under fire during the Catholic Church's clergy-abuse scandals in the early 00s when local prosecutors seeking information regarding clergy abuse were stymied by claims that such information was covered in the priest-penitent privilege. During these confrontations with local prosecutors, churches often attempted to stretch the bounds of the priest-penitent privilege to the point of breaking. For example, in Roman Catholic Archbishop of Los Angeles v. Superior Court, the Roman Catholic Archbishop asserted the privilege in raft of internal documents. The court rejected the church's claim that internal documents were protected by the First Amendment, the Free Exercise Clause of California Constitution, the state's statutory priest-penitent privilege and the psychotherapist-patient privilege. The vast majority of these privilege claims were rejected as spurious.
Justification for the privilege
John Henry Wigmore, whose influential treatise on evidence was first published in 1904, approved the privilege on the grounds that it passed what he called the four canons of privileged communications. These canons, expressed in the form of a question, constituted a four-pronged test for whether a privilege should be recognized at common law: 1) Does the communication originate in a confidence of secrecy? 2) Is the confidentiality of the communication integral to the relation? 3) Should the state formally recognize and countenance the penitential relation? 4) Would forced disclosure result in an injury that would be greater than the benefit to justice?
On the whole, Wigmore concluded that the privilege should be sustained. Wigmore's view, dubbed the utilitarian view by one scholar, is grounded in the belief that the rights of individual defendants should be sacrificed in order to provide prospective protection of the priest-penitent relationship. These supporters believe confession provides a crucial social function. They have argued that recognition of the privilege is essential because encouraging confession fosters a desirable result and a denial of the privilege would dissuade potential penitents from disclosing misdeeds. On the other hand, nonutilitarian supporters of the privilege contend that the privilege should be supported because of the retrospective harm that would result in requiring priests to violate their religious tenets. Under this view the privilege should be approved because it is unfair to put clergy to the "Morton's fork" of having to violate either their religious tenants or secular law. Under this theory, damage to the priest's reputation and career should supersede that of the party seeking forced disclosure.
The dangers of forcing priests to disclose the communication are historically well known. Saint Neopmucene, considered a martyr to the seal of the confession in the Catholic Church, refused to divulge to King Wenceslaus IV the contents of the queen's confession. As a result he was thrown into a dungeon, racked and burned with torches and offered riches for his cooperation. Finally he was bound, thrown from a bridge in Prague and suffered a martyr's death. Legend has it that when his tomb was opened 300 years after his death, the only flesh that remained was his tongue.
Constitutionality of the Privilege
Although the constitutionality of the priest-penitent privilege has never been directly challenged, the Supreme Court recognized the privilege in dictum in 1876. Almost a hundred years later, in Trammel v. United States, the court made its most definitive statement on the privilege: "The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return". Yet academics continue to debate the constitutionality of the privilege.
If confronted directly with the question of whether the privilege is constitutional, the court could decide the issue under either the Establishment Clause or the Free Exercise clause of the first amendment. The Establishment Clause would be invoked by the defendant to directly challenge whether the privilege was even constitutional. The Free Exercise Clause would protect either the confessor or the penitent from forced disclosure. Finally, the court could decide the case on simple Free Speech grounds, completely skirting the problematic tension between the Free Exercise and Establishment clauses.
Limitations of the Privilege
A defendant's right to evidence under the compulsory process clause may, in certain circumstances, trump another defenant's right to assert the priest-penitent privilege. An interesting case that explores this question is Morales v. Portuondo.
In Morales, the defendant brought a federal habeas petition on grounds that the defendant's compulsory process rights had been violated when a court declined to admit the hearsay testimony of a priest who received a confessional communication that would have exonerated the defendant.
In 1989 defendants Morales and and Montalvo were convicted of homicide in the Bronx. Not long thereafter, Father Joseph Towle received a call from Jesus Forne asking the father to visit him at his home. When Father Towle arrived, Jesus confessed to the killing, saying he could not believe that Morales and Montalvo had been convicted. The alleged confession only came to light after the priest, suffering with guilt, wrote to one of the men convicted of the crime in jail offering to help in any way that did not violate the confidences of the priest.
Towle convinced Forne to visit a Legal Aid Society attorney. But acting in his capacity, the attorney convinced Forne to plead the Fifth Amendment privilege against self-incrimination. As a result, Forne never testified. Forne was killed in 1997.
In 2000 Father Towle finally chose to divulge the confession in affidavit which formed the basis of a habeas proceeding. In order to wriggle himself free of the privilege, Father Towle concluded that in fact, the confession was not sacramental or confidential in nature and was instead what he termed a "heart-to-heart."
The government claimed that the statement was inadmissible as a matter of law because the confessor, now dead, had never waived the privilege. In addition, they argued that the statements would be inadmissible hearsay and did not qualify as declarations against penal interest.
Citing Chambers v. Mississippi, Judge Chin concluded that if due process was at risk, the testimony could be admissible if it was "vital" to the defense, even if it was hearsay as long as it bore sufficient indicia of reliability. Because Fornes had repeated the confession four times to different parties, it had a high level of reliability.
Federal Rules of Evidence 506 - Communications to Clergymen
(a) Definitions. As used in this rule:
(1) A "clergyman" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional characters as a spiritual adviser.
(c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.