Difference between revisions of "Priest-Penitent Privilege"
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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." | ||
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| + | 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> | ||
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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. | 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== | |
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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: | ||
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| + | #'''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."''' | ||
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| + | If the communication fails to include any one of these elements, the privilege does not exist. | ||
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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. | ||
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| + | 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 == | ||
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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. | ||
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| + | ==Federal Rules of Evidence 506 - Communications to Clergymen== | ||
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| + | [Not Enacted.] | ||
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| + | (a) Definitions. As used in this rule: | ||
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| + | (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. | ||
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| + | (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. | ||
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| + | (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. | ||
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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. | ||
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| + | ---- | ||
| + | See [[Evidence]] | ||
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| + | ==References== | ||
| + | * [http://en.wikipedia.org/wiki/Priest-penitent_privilege_in_England Priest Penitent Privilege in England] | ||
