Monday, September 08, 2008

Houston appeals court: Church of Christ, other Protestants may have no privilege in communications with clergy

Are communications with your minister covered by the clergy-commnicant privilege? To find out you'd better first study up on your Church's detailed doctrines on the topic. Catholics and Jews seem pretty much safe, but if a new appellate ruling stands, most Protestants in Texas may no longer be eligible to claim the privilege.

Rule 505 from the Texas Rules of Evidence declares that "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser."

Further, declares Rule 505, "A 'member of the clergy"' 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 with such individual.

So perhaps readers will forgive this non-lawyer's confusion over a recent appellate decision by the First Court of Appeals in Houston declaring there exists no privilege for communicants and clergy in the Church of Christ, which is a major Protestant denomination in Texas. The court ruled that the Church of Christ has no doctrine of keeping confessions secret. As usefully described at Evidence Prof Blog:

Without even having to get into waiver issues, the Court of Appeals of Texas found that the privilege did not apply. Why? According to the court, a former elder of [defendant] Leach's church, the Church of Christ, testified that the church does not have a doctrine that confessions will be kept confidential. Moreover, Leach's father testified that a member of the congregation can confess to an elder, and the elder will stand up and tell the congregation what he has confessed, and they will all pray together

Leach's father also indicated that no communication is private unless requested. And one of the elders of the church testified that Leach never told him that he wanted his communication to be kept private. Moreover, Leach's mother and father both testified that Leach never expressly indicated that he wanted his statements to the clergy to be kept private. Finally, Leach's mother also testified that Leach "knew when he told us what had happened that it was no longer going to be private once it got out."

All of this is fairly fascinating to me. I had assumed that all religious institutions had policies of keeping their penitents' "confessions" confidential, meaning that such confessions would normally be inadmissible under cleric-penitent privileges in the same way that confessions to attorneys are normally inadmissible under the attorney-client privilege and confessions to psychotherapists are normally inadmissible under the psychotherapist-patient privilege. Obviously, though, this is not the policy with the Church of Christ, and it might not be the policy with other religious institutions. In Evidence class, I like to say that the so called "professional privileges" are all very similar, but this seems to me to be a key difference.

Does Judaism have any formal doctrine of confessional secrecy? If so I'm not aware of it but "rabbis" are specifically named in the rule. Certainly there's no such formal doctrine among Southern Baptists, the faith tradition in which I was raised.

There's a slippery slope factor here - if this ruling stands, in the First Court's jurisdiction, at least, now each individual religion's doctrines are subject to evaluation by judges to determine if Rule 505 applies to their clergy. I'd guess most evangelical and Protestant Christian denominations in particular have no such formal doctrine.

I don't believe such judicial interpretations of Church doctrine were either intended or authorized by Rule 505, which makes no such distinctions in the plain language of the text. Though I'm not a lawyer, I agree with Evidence Prof blogger Colin Miller this is a novel distinction established by the First Court, which enjoys a reputation as one of the more aggressively activist, pro-prosecution appellate courts out of the 14 in Texas.

One hopes the state Court of Criminal Appeals might take up the issue and overrule the First Court; this seems like a pointless, even anti-religious instance of judicial activism and a bad precedent to set.

BLOGVERSATION: Corrupt Hive agrees with the ruling.


Unknown said...

This feels like the State trying to piggyback on God. Whether Leach can get out of his confession to the State should stand or fall on legal grounds, and only legal grounds. But I'd bet that the State called on a Higher Authority. I'd bet a theme the DA played on was: "It's one thing for a man to try to weasel out of a confession made to the State. That's part of the game and we all know the drill. But ladies and gentlemen, for this man to confess to his elders and then come into court denying what he so clearly did, ... well, what can I say? This man is so wicked that he'll even try to doublecross God."

Anonymous said...

It sounds to me like more of the continuing erosion of the traditional privileged communication between a person and his lawyer, doctor and clergy.

The evidence rule seems pretty clear, and there is nothing in it that says the the religious group has to have a specific rule allowing for communication between a congregant and his clergyman to be secret. That probably means the the CCA will uphold the ruling, as is its wont to go against common sense and the rights of the accused.

Anonymous said...

So perhaps readers will forgive this non-lawyer's confusion

You're confused by a ruling from Houston that's adverse to a criminal Defendant?

Anonymous said...

This is interesting. In a civil case being argued re TDCJ, an inmate who is a member of the Church of Christ is arguing that his rights have been violated by offering him the opportunity to attend generic Protestant services. He argues that the Church of Christ is not a Protestant denomination, but a totally separate Church. His argument is that other denominations are not really Christian churches.

Anonymous said...

Colin and I have disagreed before because he doesn't really understand religious life and so he doesn't really understand the point of the ministerial exception.

I will post on this later on at my own blog.

For now, let me just say that I find the court's ruling amusing, but not illogical. After all the rule says that something is confidential only in a ministers professional capacity. But if the religion at issue has no doctrinal practice of hearing closed confessions, how is it possible for him to be hearing it in a "professional capacity".

Ron in Houston said...

Elders are not clergy. What's so hard to understand?

Anonymous said...

I have no idea whether an elder is a member of the clergy or not, as that is not an issue discussed or explored in this case. The issue hinges on whether the statement should be treated confidentially and as such assumes, under the rules of evidence, that an elder is in fact a member of the clergy.

Gritsforbreakfast said...

Ron, it may be argued that CoC "elders" should not be included in Rule 505's inclusive language granting the privilege to communications with a "similar functionary of a religious organization." But as I understand it, that's not what the court ruled. They said the Church of Christ had no specific doctrine of secret confessions. That's also true of Baptists.

Anonymous said...

Grits. If you read the ruling closely you will also see that the court is intimating, though it doesn't directly us the magic words, that there was no established practice either. As I say in my blog post, it's not just the fact that there was no evidence of a doctrine of secret confessions, there was no actual practice of it either. It's both of these facts together that establish the context of the statement.

Anonymous said...

Honestly Grits, sometimes I think you rode the short bus back in your public schooling days.

What's not to understand? It was UNCONTROVERTED that no confidentiality existed within that religion, that the confessions were first to THE ENTIRE CONGREGATION and then to the elders, AND THEN, AFTER FULLY WAIVING HIS MIRANDA WARNINGS, GAVE A NON-CUSTODIAL "CHILLING" VIDEOTAPED CONFESSION TO POLICE.

What is not to understand? Actually I question the intellectual capacity of this entire bunch of posters. Read the opinion. Read the evidence. Read the law.

Maybe it would help if you were a lawyer.

Gritsforbreakfast said...

1:19, why don't you put your sarcasm aside when you post here. Snearing is not an argument and your points aren't strong enough to justify it.

Much of your comment is spurious and irrelevant, even dumb. (The statement to the Sheriff, etc., are utterly irrelevant to this discussion, making me think it's you who are confused for bringing it up.) You're just missing the point that the court could have issued a narrow ruling that got them to the same place - they could have said based on testimony of congregants that the communicant never said he wanted the communication to be private, that they didn't consider it secret, etc..

The judicial evaluation of intent in Rule 505 involves the communicant, not an assessment of the intent of each individual religion's doctrinal position on secret confessions. By presuming to interpret church doctrine, which has nothing to do with the D’s intent, the court created a new argument for busting privilege that's just not warranted anywhere in Rule 505 or prior court precedents, no matter how much anonymous whiners want to grouse that it should be.

Anonymous said...

More proof to me that confession should be solely between man and his God.

Anonymous said...

So by your logic Gritso, If "in my mind" my confession to police was to remain confidential and not be able to be used as evidence at my trial, then the law would mean nothing.

I'm glad none of us live in your (imaginary) world. Go to college, finish it up, and maybe I might take you seriously.

Probably not, though.

Gritsforbreakfast said...

6:45, you write: "If 'in my mind' my confession to police was to remain confidential ..."

I don't need to go back to college to understand that Rule 505 pertains only to communications with clergy, not confessions to police. I have no idea what point you think you're making (and don't bother to elaborate, because I don't really care), but clearly we're not having the same conversation here.

Anonymous said...

Charles Kiker here:

Scott, this is very interesting. I expect you are right that most evangelical denominations have no rule about privileged communication with clergy, especially those denominations with congregational polity.

I am a retired American Baptist minister. (American Baptists were formerly known as Northern Baptists, and are somewhat more liberal, or should I say somewhat less conservative? than our Southern Baptist counterparts.) When I read this it sent me to our American Baptist Ministers' Council's covenant and code of ethics. One paragraph reads thus:
"I will hold in confidence and treat as confidentialcommunication any information provided to me WITH THE EXPECTATION OF PRIVACY [emphasis mine]. I will not disclose such information in private or public except when, in my practice of ministry, I am convinced that the sanctity of confidentiality is outweighed by my well-founded belief that life threatening or substantial harm will be caused."

There are three loopholes here regarding clergy confidentiality:
1) This is a covenant and code that the minister enters into voluntarily;
2) The expectation of privacy thing. In court a minister might have to be able to show that the conversation was conducted in the expectation of privacy, which might be tough to prove unless the minister or the defendant had contemporaneous records of the conversation;
3) The "outweighed by the belief that substantial harm could occur."

Does this third exception exist in most "confidential" communication?

Anyway, I would feel that under this appeals court ruling I could probably be compelled to testify.

Anonymous said...

I feel the question should turn on the expectations of the person doing the confessing rather than the particular bylaws of this or that flavor of religion.

Scratch that. I am sick of always having to pretend to be nice to religious people. IMHO people who honestly believe in an all powerful sky fairy are too stupid to vote or serve on juries.

Having any privilege for clergy of any faith smells like establishment of religion and so its not really appropriate in the 21st century.

Anonymous said...

Agree with anonymous confession should be solely between man and his God.

Anonymous said...

That is the old fashion. Nowadays nobody trust anyone. At least is what we see in other ares. lol