Confidential and Privileged Communications

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

Church Law and Tax 1990-03-01 Recent Developments

Confidential and Privileged Communications

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).

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