Clergy Privilege Protects Communications Made In Confidence, Waived if Called as Character Witness
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In a previous post, we outlined the case of Ernest “Randy” Comeaux, an inmate serving six life sentences for a series of rapes from the mid-1980s to the mid-1990s in Lafayette Parish, Louisiana. The background of the case can be found here. In November of 1998 Lafayette Police Department Captain James Craft received an anonymous telephone call that linked Comeaux to the rapes. Prior to his arrest, Comeaux reportedly spoke in confidence to an attorney and a priest—the only other persons who knew about the rapes, except Comeaux. We have already dealt at length with the attorney-client privilege implications in a case such as Comeaux’s. We now turn our attention to the clergy privilege implications.
The “clergyman-penitent privilege” has a long history in Texas. The Legislature in 1967 enacted Article 3715a of the Texas Revised Civil Statutes which provided:
No ordained minister, priest, rabbi or duly accredited Christian Science practitioner of an established church or religious organization shall be required to testify in any action, suit, or proceeding, concerning any information which may have been confidentially communication to him in his professional capacity under such circumstances that to disclose the information would violate a sacred or moral trust, when the giving of such testimony is objected to by the communicant; provided, however, that the presiding judge in any trial may compel such disclosure if in his opinion the same is necessary to a proper administration of justice.
This statute was effectively repealed in 1983 by the Texas Supreme Court when the court promulgated Rule 505 of the Texas Rules of Evidence. Under Article 3715a the trial judge was vested with expansive authority to compel disclosure of a privileged clergy privilege. Rule 505 discarded this broad authority by providing:
(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 the confidential communication by the person to a clergyman in his professional character as spiritual advisor.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the 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.
Besides restricting a trial judge’s authority to compel disclosure, Rule 505(c) also grants the person making the communication with the right of nondisclosure as well as to impose a nondisclosure duty on the clergyman. This means that the moment a confidential communication is made to a recognized clergyman the privilege of confidentiality attaches.
In 1992, the First District Court of Appeals (Houston) encountered the Rule 505 privilege in Nicholson v. Wittig. That case was a wrongful death lawsuit filed by the wife and son of a deceased who died from complications of an aneurysm surgery at Memorial Northwest Hospital. While her husband was undergoing surgery, the wife spoke to a hospital chaplain. The chaplain had been summoned to the hospital by a nursing supervisor who knew the husband’s condition was serious and the family would probably need religious support. When the chaplain arrived, he introduced himself and gave the wife a card identifying him as the hospital chaplain. He thereafter spoke to the wife alone and at other times in the presence of the nurse and a doctor.
During the wrongful death lawsuit against the hospital, the chaplain was willing to provide testimony about information the wife had conveyed to him in the presence of the doctor and the nurse about “the care and treatment” of her husband. The chaplain stated that he believed the “spiritual and personal” conversations he had with the wife were confidential and should not be disclosed. However, attorneys for the hospital tried to convince the trial court that the “care and treatment” information given to the chaplain by the wife should be allowed before the jury because:
(1) The conversations between the chaplain and wife took place in front of others, so the privilege was waived;
(2) Since the issue before the court was a medical malpractice case involving the “care and treatment of the deceased, conversations between the chaplain and the wife about this issue were not protected by “clergy-communicant privilege;”
(3) The delay in the deceased’s surgery was a crucial issue in the case and the information the wife had reportedly shared with the chaplain about having the surgery performed at another hospital was critical to that;
(4) The hospital’s defense was premised on the contention that the wife, not the hospital was responsible for the delay in the surgery—something the wife vehemently denied ever having discussed with the chaplain; and
(5) Because the wife/son’s lawsuit alleged they had suffered “mental anguish” by the hospital’s delay in performing the surgery, the hospital wanted to use the chaplain’s testimony to refute this issue on the premise that the wife, not the hospital, was responsible for the delay.
The trial court was not impressed. The judge ruled that the testimony the chaplain was willing to provide was barred by the “clergy-communicant privilege.” The Court of Appeals rejected the hospital’s attempt to distinguish statements the wife made to the chaplain in his capacity as a “spiritual advisor” and those where she expressed concern about her husband’s treatment. “We hold that position is unacceptable,” the appeals court stated. “First, we note that only the trial court is empowered to make this distinction, if any should be made. Second, such a conclusion would be tantamount to allowing all conversations that individuals have [made during] clergy-communicant counseling sessions to be discussed and partitioned into categories. Rule 505 would be eviscerated by such a result.”
In reaching this conclusion, the appeals court summoned the intellect of famed legal scholar Dean Wigmore who set forth “four fundamental prerequisites” guarding against disclosure of privileged communications:
1) The communications must originate in a confidence that they will not be disclosed.
2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained from the correct disposal of litigation.
Texas courts of appeals in criminal cases have carved out several significant distinctions to the clergy privilege, primarily: self-incriminating statement made during clergy-initiated meetings with defendant; and self-incriminating statements made to the clergy with no expectation of privacy. The Fifth District Court of Appeals (Dallas) in Kos v. State held that communications in a clergy initiated meeting about sexual abuse allegations were not protected by the clergy privilege, primarily because Kos did not seek any advice about how he could “reconcile himself with the church. This position was more recently adopted by the First District Court of Appeals (Houston) in Gutierrez v. State in yet another clergy-initiated meeting about sexual abuse allegations by a father against his daughter.
Two years before deciding Kos, the First District Court of Appeals in Leach v. State [2008 Tex.App. LEXIS 6684] refused to apply the clergy privilege. Leach killed his girlfriend and made it look like a suicide. In fact, the police had closed the case as a suicide. Leach then watched the movie “The Passion of Christ” and felt compelled to pay the consequences for his crime. After taking a long trip, he returned home and confessed to his father about the murder. The father called the church elders and Leach confessed to them as well. The elders urged him to go to the authorities, after which Leach accompanied the elders and his parents to the sheriff’s department. The Leach court rejected the clergy privilege claim because:
“During a church service, Leach stood up and announced to the entire congregation that he was going on a long journey and did not know where it would end. Later that day, Leach met with two clergy elders and confessed that he had committed a murder. Two days later after this confession, Leach went to the sheriff’s office and confessed to Wilson’s murder. A former elder of Leach’s church testified that the Church of Christ does not have a doctrine that confessions be kept confidential. 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 further testified that Leach never told him that he wanted his communication to be kept private. In addition, Leach’s mother and father both testified that Leach never expressly indicated that he wanted the statements to the clergy to be kept private. Leach’s mother also testified that Leach ‘knew when he told what had happened that it was no longer going to be private once it got out.’ In light of this evidence, the trial court could have disbelieved Leach’s testimony that he intended the communication be kept confidential.”
The Texas Court of Criminal Appeals in Gonzales v. State upheld yet another statutory exemption to the clergy privilege. Article 261.202 of the Texas Family Code provides that evidence of child abuse or neglect may not be excluded because of any privilege, except for the attorney-client privilege. The Gonzales court also added that “a clergyman may also be deemed to have waived any privilege and may be compelled to disclose confidential communication, if he testifies as a character witness for the confidant.”
The essence of these cases is that the clergy privilege protects those communications clearly made in confidence—and the issue of what is or is not confidential is a question of fact for the courts to decide. The communication from confidant to clergy may often be difficult to bear, but the clergyman must understand, as most do, that it is not their “duty” to “catch crooks.” Their solemn duty is to provide forgiveness, counseling, advice, and suggest direction.
And that’s why if the priest to whom Comeaux confided about the rapes had disclosed that confidential communication in Texas, it would not only be a violation of tenets of the Catholic Church but would be inadmissible evidence under Rule 505, with proper objection from the attorney and assertion of the privilege.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
RULE 505. COMMUNICATIONS TO MEMBERS OF THE CLERGY
(a) Definitions. As used in this rule:
(1) 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.
(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 a member of the clergy in the member’s professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the person’s guardian or conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant.