• Key point. Ministers may be barred from testifying in court about statements made to them out of court-even if the other party to the conversation wants them to testify-on the ground that the statements are hearsay. However, a number of exceptions exist to the general prohibition of hearsay testimony.

A Texas court ruled that a criminal defendant was not entitled to a new trial as a result of a trial judge’s refusal to allow the defendant’s pastors to testify regarding statements he had made to them. A man (the “defendant”) shot and killed his wife during an argument. A few minutes later he drove to his church, knowing his mother was there. He told her, and his two pastors, that he had accidentally shot his wife. The defendant was charged with murder. During his trial, he asked his pastors to testify on his behalf that he had told them shortly after the shooting that it had been an accident. Although the defendant himself testified that the shooting was an accident, he wanted to have his pastors confirm his remorse and the fact that he told them the shooting was accidental. The trial court permitted the pastors to testify about the defendant’s actions and appearance, but did not allow them to repeat statements he had made to them. The court ruled that it would be inappropriate to have the pastors testify regarding the accidental nature of the shooting since they had no personal knowledge of what happened and their only information was based on hearsay statements of the defendant. The trial judge observed that “it would seem that any individual can shoot and kill somebody and then run to the pastor, preacher, priest, rabbi or otherwise and there in a self—serving way convince that person to come in and give an opinion.” The defendant was found guilty and appealed on a number of grounds, including the fact that the pastors had been prohibited from testifying about statements he made to them after the shooting.

A state appeals court acknowledged that hearsay testimony (such as the statements made by the defendant to his pastors) is generally not admissible in court. However, the court ruled that the statements made by the defendant to his pastors immediately following the accident were “excited utterances” which are a well—recognized exception to the general rule banning hearsay testimony. The excited utterance exception to the hearsay rule provides that “a statement relating to a startling event or condition made while the [speaker] was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. The critical factor in determining when a statement is an excited utterance “is whether the [speaker] was still dominated by the emotions, excitement, fear, or pain of the event …. If the statement is made while the witness is in the grip of emotion, excitement, fear, or pain, and it relates to the exciting event, it is admissible even after an appreciable time has elapsed.” The court observed that “statements made by the defendant to his pastors immediately after the shooting qualify as excited utterances,” and therefore the trial court erred in not permitting the pastors to repeat what the defendant had told them. However, the court concluded that the failure to allow the pastors to testify about the defendant’s remarks was not a serious enough error to warrant a reversal of the defendant’s conviction. It noted that a trial court’s refusal to admit evidence is reversible “only if the offered evidence is relevant and its exclusion was harmful to the accused.” This test was not met in this case, since the jury hear the defendant himself testify about his conversation with his pastors and his statements that the shooting was accidental. Further, even though the pastors were not allowed to relate the defendant’s statements “they gave a consistent description of [his] physical and emotional state, and of the sequence of events from the church to [his] mother’s house.” The court concluded that “while the pastors’ excluded testimony was relevant, it was also cumulative of the defendant’s testimony. The exclusion was therefore harmless.”

Application. This case illustrates the effect of the so—called hearsay rule. Anytime that a minister is asked to testify in court regarding a conversation with another person, the hearsay rule may apply-if the purpose of the minister’s testimony is to prove some fact associated with the conversation. There are several exceptions to the hearsay rule, including the excited utterance rule mentioned in this case. Ministers should recognize that they may be barred from testifying in court regarding their out—of—court conversations not only on the basis of the clergy—penitent privilege, but also on the basis of the hearsay rule. This may be true even if the minister wants to testify. Guerra v. State, 942 S.W.2d 28 (Tex. App. 1996). [The Clergy-Penitent Privilege]

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