Priest-Penitent Privilege - Revision history

Ibjadmin at 09:22, 27 July 2010

2010-07-27T09:22:46Z

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	(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.		(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.

			----
			See [[Evidence]]

	==References==		==References==
	* [http://en.wikipedia.org/wiki/Priest-penitent_privilege_in_England Priest Penitent Privilege in England]		* [http://en.wikipedia.org/wiki/Priest-penitent_privilege_in_England Priest Penitent Privilege in England]

Ibjadmin: /* Background */

2010-07-01T18:55:22Z

Background

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	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 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:
			<blockquote>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.</blockquote>

	Today, the privilege is no longer exclusively extended to religious leaders of the Christian faith. N.Y. C.P.L.R. � 4505 simply provides that "Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor."		Today, the privilege is no longer exclusively extended to religious leaders of the Christian faith. N.Y. C.P.L.R. � 4505 simply provides that "Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor."

Ibjadmin: /* References */

2010-07-01T18:52:28Z

References

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	==References==		==References==
	* [[[http://en.wikipedia.org/wiki/Priest-penitent_privilege_in_England Priest Penitent Privilege in England]]		* [http://en.wikipedia.org/wiki/Priest-penitent_privilege_in_England Priest Penitent Privilege in England]

Ibjadmin: /* Federal Rules of Evidence 506 - Communications to Clergymen */

2010-07-01T18:52:17Z

Federal Rules of Evidence 506 - Communications to Clergymen

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	(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.		(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.

			==References==
			* [[[http://en.wikipedia.org/wiki/Priest-penitent_privilege_in_England Priest Penitent Privilege in England]]

Ibjadmin: /* Federal Rules of Evidence 506 - Communications to Clergymen= */

2010-07-01T18:48:33Z

Federal Rules of Evidence 506 - Communications to Clergymen=

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	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.		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==		==Federal Rules of Evidence 506 - Communications to Clergymen==

	[Not Enacted.]		[Not Enacted.]

Ibjadmin: /* Rule 505 of Uniform Rules of Evidence */

2010-07-01T18:44:07Z

Rule 505 of Uniform Rules of Evidence

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	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.		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.

	=~~=Rule 505 of Uniform~~ Rules of Evidence==		=Federal Rules of Evidence 506 - Communications to Clergymen==
	~~Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, provides:~~

	~~(a) Definitions~~. ~~As used in this rule:~~		[Not Enacted.]

	(1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.		(a) Definitions. As used in this rule:

	(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~~.		(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.

	(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~~ the ~~clergyman in his professional character as a spiritual adviser~~.		(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.

	(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 ~~person who was the~~ clergyman at the ~~time~~ of the ~~communication~~ is presumed ~~to have authority to claim~~ the ~~privilege but only on behalf~~ of the ~~communicant~~.		(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.

Ibjadmin: /* Elements of the Privilege */

2010-07-01T18:42:20Z

Elements of the Privilege

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	Not all communications between priests and penitent create the privilege. Although the rule varies from jurisdiction to jurisdiction the following elements generally apply:		Not all communications between priests and penitent create the privilege. Although the rule varies from jurisdiction to jurisdiction the following elements generally apply:
	~~#communications~~
	~~#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 ~~communcation~~ fails to include any one of these elements, the privilege does not exist.		#'''communications'''
			#'''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.		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.

Ibjadmin: /* Elements of the Privilege */

2010-07-01T18:41:41Z

Elements of the Privilege

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	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.		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.

	~~Generally both~~ parties 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.		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 ==		== Priest-Penitent Privilege in Federal Court ==

Ibjadmin: /* Elements of the Privilege */

2010-07-01T18:41:20Z

Elements of the Privilege

← Older revision		Revision as of 20:41, 1 July 2010
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	Not all communications between priests and penitent create the privilege. Although the rule varies from jurisdiction to jurisdiction the following elements generally apply:		Not all communications between priests and penitent create the privilege. Although the rule varies from jurisdiction to jurisdiction the following elements generally apply:
	#		#communications
	#		#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 communcation 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.

	Generally both parties 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.		Generally both parties 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.

Ibjadmin: /* Limitations of the Privilege */

2010-07-01T18:38:14Z

Limitations of the Privilege

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	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.		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.

			==Rule 505 of Uniform Rules of Evidence==
			Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, provides:

			(a) Definitions. As used in this rule:

			(1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science Practitioner, 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 the clergyman in his professional character 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 person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.