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.