Confidential and Privileged Communications

Church Law and Tax 1990-03-01 Recent Developments Confidential and Privileged Communications Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

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State: New York
Categories: Confidential and Privileged Communications

Church Law and Tax 1990-03-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• A New York state appeals court addressed the issue of privileged communications to clergy in an important decision. Here are the facts. An individual entered an office building in New York City, pulled a gun and ordered several people to lie on the floor, and fired at least one shot. He later left the building and went to a nearby Catholic church. The church secretary informed the priest that there was a man in the office who wanted to see him. The priest met the individual in the church sanctuary a short time later. The individual appeared very distraught, and informed the priest that his mother was a member of the parish and that she was a saint, and that he had done something very bad. Upon further questioning by the priest, the individual disclosed the actions he had taken earlier in the day. The priest advised the individual that if he had not hurt anyone he “would be better off” turning himself in to the police. The individual rejected this advice and stated that he wanted to pray. A short time later, the priest slipped outside and ran to a police headquarters a block away. On his way, he yelled to several police officers that there was a man in the church with a gun. The officers went into the church, removed the gun from the individual and placed him under arrest. The individual was later indicted on 24 counts by a grand jury which based its decision in part on the conversation that occurred between the priest and the accused in the church. The individual sought a court order dismissing the indictment on the ground that it was based on privileged communications between himself and the priest. New York law provides that “unless the person confessing or confiding waives the privilege, a clergyman … or minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor.” The court observed that “not every communication between a clergyman and a penitent is considered privileged.” To be a privileged communication (i.e., not admissible in court) the communication made to the clergyman must have been made to him in his or her professional character as a spiritual advisor.” For example, the court cited an earlier case in which a letter written to a priest was not privileged since it contained no hint “that its contents were to be kept secret, or that its purpose was to obtain religious or other counsel, advice, solace, absolution or ministration.” In the present case, however, the individual with the gun “was seeking some type of spiritual advice from [the priest] and had the reasonable expectation that his conversation with the priest was to be kept secret. Therefore, [the priest] was not at liberty to testify before the grand jury as to his conversation with [the accused].” People v. Reyes, 545 N.Y.S.2d 653 (1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0290

Legal Developments

Confidentiality and Privileged Communications

Church Law and Tax 1990-01-01 Recent Developments Confidentiality and Privileged Communications Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Confidential and Privileged Communications

Church Law and Tax 1990-01-01 Recent Developments

Confidentiality and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Can the delivery of a gun to a minister constitute a “privileged communication” that is not admissible in court? Yes, concluded a New York appeals court. A New York City police officer also served as assistant pastor of a local church. One evening, while off duty and presiding over a church function (in civilian clothes), the minister stepped outside momentarily. While on the front steps of the church, he was approached by an elderly gentleman who addressed the minister by name and stated that he had something at home that he wanted to give the minister. A few minutes later, the individual returned, and was escorted into an office where he handed the minister a plastic bag containing a .38 caliber revolver. Not wanting to the leave the gun on church premises overnight, the minister flagged a patrol car that was passing by the church, and handed the gun to the officer driving the vehicle. A few months later, the minister was accused of violating several police department regulations in the proper disposition of the gun. The minister claimed that the incident could not give rise to any disciplinary action since it was a “privileged communication” under New York law and therefore could not be used in any legal proceeding. A trial judge found the minister guilty of all charges, and concluded that the “privileged communication” defense was not available since the gun had been delivered to the minister in his capacity as a police officer rather than a clergyman. A state appeals court reversed this ruling, and dismissed the charges. The appeals court concluded that the gun had been delivered to the minister in his capacity as a minister, and that the manner in which the gun was delivered constituted a “confidential” nonverbal communication. The court found it significant that the elderly gentleman had gone to the church with the gun rather than to a police facility, and that the minister was wearing civilian clothes. The ruling illustrates that the concept of “privileged communications” made to clergy is not necessarily restricted to verbal communications, but in some cases can extend to conduct that is intended to communicate some message. Of course, the conduct must be confidential. Since the plastic bag was presented to the minister in the privacy of a church office, this requirement was satisfied. Lewis v. New York City Housing Authority, 542 N.Y.Y.2d 165 (1989).

Legal Developments

Confidential and Privileged Communications

Church Law and Tax 1989-09-01 Recent Developments Confidential and Privileged Communications Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: Idaho
Categories: Confidential and Privileged Communications

Church Law and Tax 1989-09-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• The Supreme Court of Idaho emphasized that the clergy-penitent privilege will not apply to any conversation that is not confidential. During the trial of a suspected rapist, the prosecution called a clergyman to the witness stand to testify regarding comments made to him by the accused three days before the rape. The clergyman testified that immediately following a Sunday morning worship service three days before the rape, the accused had approached him and stated that he “was really hurting and that he couldn’t live without [the rape victim]”—who was his former wife. The clergyman testified that this conversation had occurred while “many people were hanging around as they usually do” following a service, and that “we [the clergyman and the accused] talked with quite a number of people.” The accused claimed that the prosecution erred in allowing the statements made by the accused to the clergyman to be introduced in court, since such statements were the product of the “clergy-penitent” privilege. The court rejected this claim, noting that only confidential communications made to a minister acting in his or her professional capacity as a spiritual advisor are privileged from disclosure in a court of law, and that the statements made by the accused in this case were not privileged. It concluded that “the record supports the trial court’s finding that the conversation had not taken place in private and therefore was not a privileged confidential communication.” This case illustrates the significant principle that statements made to clergy are not privileged unless they are made in confidence. This ordinarily means that the statements are not made in the presence of a third party, and that they are made with the expectation that they will remain secret. Obviously, statements made to a minister immediately following a morning worship service will not be “privileged” if they are made in the presence (and within the hearing distance) of other persons. They simply are not confidential. The result is that neither the minister nor the person making the statement can refuse to testify regarding the conversation in a court of law or during a deposition on the basis of the “clergy-penitent” privilege. State v. Hedger, 768 P.2d 1331 (Ida. 1989).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0589

Legal Developments

Confidential Communications

Church Law and Tax 1989-03-01 Recent Developments Confidential Communications Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-03-01 Recent Developments

Confidential Communications

Richard R. Hammar, J.D., LL.M., CPA

• Can a church be sued if its minister fails to report a child molester to the civil authorities? That was one of the issues before an Arizona state appeals court in a recent case. Here are the facts. A member of the Church of Jesus Christ of Latter-Day Saints (the church) informed three church officials that he had sexually molested a number of children. The mother of one of the victims sued the church, arguing that its negligence in not reporting the molester to civil authorities and in carelessly counseling with him had contributed to the molestation of her daughter. The molester later confessed to at least 33 acts of child molestation, and freely disclosed to the police the confessions that he had made earlier to the church officials. The mother sought to compel the church officials to testify regarding the confessions as part of her attempt to demonstrate that the officials had been aware of the risks posed by the molester and had been negligent in failing to report him to the authorities. This request was opposed by the church officials, who claimed that the confessions previously made to them were shielded from disclosure in court by the “clergyman-penitent privilege.” The court ruled that under Arizona law the clergyman-penitent privilege “belongs to the communicant, not the recipient of a confidential communication,” and accordingly only the molester could assert it. Further, the court concluded that the molester had “waived” the privilege by his voluntary disclosures to the police. The court rejected the church’s claim that the church officials to whom the confessions were made could independently assert the clergyman-penitent privilege as a means of avoiding the obligation to testify. It observed that the clergyman-penitent privilege was a response “to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one’s self and others can be realized. This urgent need is the penitent’s, not the clergyman’s. And once the penitent has waived the privilege, his penitential need is unserved and the public’s evidentiary need disserved by permitting a clergyman to assert the privilege independently.” The court acknowledged that “complex issues” would be raised if the church officials, like Roman Catholic or Episcopalian clergy, were bound by an absolute obligation of silence “unwaivable by a penitent”. However, it observed that the church officials had failed to demonstrate that they were similarly bound by an absolute obligation of silence, and therefore it refused to rule on this issue. In summary, the church officials were required to testify in court about the confessions that the molester had made to them in the course of counseling. It remains to be seen whether such evidence will demonstrate that the officials were negligent in not promptly reporting the molester to the authorities. The eventual outcome of the case will be reported in a future issue of Church Law & Tax Report. Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988).

Legal Developments

Court Ruled That Confidential Statements Made by a Church Treasurer to an Episcopal Priest Were Not “Penitential Communications”

A California state appeals court ruled that confidential statements made by a church treasurer to

Richard R. Hammar, Attorney, CPA

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State: California
Categories: Confidential and Privileged Communications

A California state appeals court ruled that confidential statements made by a church treasurer to an Episcopal priest were not "penitential communications" exempted by law from involuntary disclosure in a civil court.

Here are the facts. Late one night, the treasurer arranged a meeting with the priest after informing him that she "had done something almost as bad as murder." The treasurer, after requesting that their conversation be kept confidential, informed the priest that she had embezzled nearly $30,000 in church funds from a church account. The priest, with the permission of the treasurer, sought the assistance of the church wardens and vestry. Soon thereafter, the vestry decided that the embezzlement had to be reported to the local police.

At a subsequent criminal prosecution, the treasurer was convicted and placed on formal probation including four months in jail (prior to trial, she had fully repaid the church). The treasurer appealed her conviction on the ground that it had been based on her confidential statements to the priest which, in her opinion, were "penitential communications" that were privileged against disclosure in court.

California law specifies that "a penitent … has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication" made to a clergyman. A "penitential communication" is defined as a confidential communication to a clergyman "who, in the course of the discipline or practice of his church, denomination, or organization is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret."

The court concluded that the statements made by the church treasurer to the priest were not privileged since they involved a "problem-solving entreaty" by the treasurer rather than "a request to make a true confession seeking forgiveness or absolution—the very essence of the spiritual relationship privileged under the statute." That is, the treasurer sought out the priest not for spiritual counseling, but to disclose her embezzlement and to seek his counsel on how to correct the problem. Further, the court observed (despite testimony to the contrary) that while Episcopal priests have a duty to maintain the secrecy of a confession by a penitent seeking God's forgiveness, there is no corresponding duty with respect to statements made to a priest in the course of ordinary "pastoral counseling."

The court also emphasized that the treasurer had "released" the priest from his assurance of confidentiality by consenting to his disclosure of the facts of the case to the church wardens and vestry. Unfortunately, the court's decision contradicts the very purpose of the "penitential communications" privilege.

One court, in a noted case, explained the purpose of the privilege as follows: "The fundamental thought is that one may safely consult his spiritual adviser …. When any person enters that secret chamber, [the law] closes the door upon him, and civil authority turns away its ear." Church members in California may be dissuaded from seeking pastoral counseling now that there is no assurance that communications made in confidence in the course of such counseling sessions are privileged from involuntary disclosure in a court of law. Such a crabbed interpretation of the California statute is unwarranted, and hopefully will be rejected by the state supreme court and by other appeals courts in the state.

People v. Edwards, 248 Cal. Rptr. 53 (Cal. App. 1st Dist. 1988)

Legal Developments

Court Refused to Extend the Clergy-Penitent Privilege to an Unordained, Self-Proclaimed Minister

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Confidential and Privileged Communications, Counseling, Ministerial Exception

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed minister to whom a murder suspect made certain statements.

The minister characterized himself as a "self-ordained minister," which he defined as "a person who takes it upon himself to guide others in religious matters." He had taken a Bible study correspondence course from a college in California, and while in the armed services participated in a Bible study group in his church. Such a background, concluded the court, was not enough to justify application of the clergy-penitent privilege under Louisiana law, which provides that "no clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication."

The court observed that "simply because [the alleged minister] studied the Bible and took it upon himself to give religious guidance to others does not make him a clergyman." Further, the evidence did not demonstrate that he had been "approached for spiritual counseling." As a result, the communications made to the minister by the murder suspect were not privileged, and were properly admissible in court. State v. Hereford, 518 So.2d 515 (La. App. 1987)

Legal Developments

Court Concluded That in Alleging Damage to Marital Relationship Couple Waived the Privilege of Their Communication with Priest

A New York case dealt with the clergy-penitent privilege. A husband and wife brought a

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Confidential and Privileged Communications, Counseling

A New York case dealt with the clergy-penitent privilege.

A husband and wife brought a medical malpractice suit against a physician, alleging, among other things, that the malpractice had resulted in injury to the marital relationship. To refute the claim of marital injury, the physician sought to obtain the counseling records of a Roman Catholic priest to whom the couple had gone for marriage counseling.

The priest refused to comply on the ground that such records were protected by the New York clergy-penitent privilege, which provides: "Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor."

The court concluded that alleging damage to their marital relationship the couple had "waived the privilege of their communication with [the priest] during his counseling with them, solely as to their marital problems. Insofar as other communications with [the priest] not pertaining to marriage counseling, the privilege remains intact."

The court suggested that the couple delete their claim for damages to their marital relationship as a means of avoiding the necessity of having the priest's counseling records subject to disclosure. Ziske v. Luskin, 524 N.Y.S.2d 145 (1987)