• Key point: In some cases, a letter written to a minister may be covered by the “clergy-penitent privilege” and accordingly be immune from involuntary disclosure in a court of law. However, this may not be the case if the letter is left open in plain view in the author’s home, since under these circumstances the communication may not be “confidential”.
• A New Jersey court ruled that a letter written by a murderer to his pastor, and left in plain view in his home after he killed 5 members of his family, was not protected from disclosure in court by the clergy-penitent privilege since it was not considered “confidential”. The facts of this case are tragic. One morning after his three children had gone to school, a man (the “defendant”) shot and killed his wife while she was sitting at the breakfast table. He then proceeded to the third floor of his home where his mother lived and shot and killed her. He then returned to the first floor, dragged his wife’s body into the living room, and ate lunch. After lunch, he went to the bank to cash some checks, and then placed a stop order on his mail at the post office. Later in the afternoon, defendant shot and killed his three children when they returned home. The defendant then stopped all milk and newspaper deliveries and made arrangements for the children’s absences from school and other activities, as well as his own absence from work. He then wrote letters to several relatives and a long letter to his pastor in order “to tell somebody about what had occurred.” Defendant also composed some other notes with instructions concerning funeral arrangements for his family members. He then ate supper and went to bed. Early the next day, he packed some of his possessions and shipped them by railway express. He drove to Kennedy Airport and abandoned his car there. He then went to New York City by public transportation and commenced a circuitous trip ending in Denver, where he obtained a new social security card under a fictitious name. He took a job as a cook and “kept a low profile life,” changing his appearance from time to time and avoiding any trouble. He “made sure not even to get a parking ticket,” and avoided situations such as passport applications which, he believed, required fingerprinting. One month after the killings, the police were summoned to the house by concerned friends. After consulting with these friends and some neighbors who expressed particular concern for the defendant’s mother, the police and two of the friends entered the house through the only unlocked window they found, on the side porch. The bodies were discovered. Shortly thereafter, the police officer in charge of the investigation arrived. He and other police officers assisting him read a note which they found on top of a desk in the study. The note was addressed “to the finder” and signed by the defendant. It contained a request that the authorities be contacted. Another note on the front of a locked desk drawer was labelled “guns and ammo.” A police officer pried the drawer open and found two firearms and some assorted ammunition. Notes were also attached to the two file cabinets. One attached to the middle drawer of the smaller cabinet was addressed to the defendant’s pastor. The note on the larger filing cabinet contained the name of defendant’s employer. Inside the smaller file cabinet the police found an unsealed file folder that also was addressed to the defendant’s pastor. The folder contained a five-page letter to the pastor in which the defendant confessed to killing the members of his family. The letter was not in a separate envelope. The folder also contained photocopied stock certificates, a checkbook and an interest computation slip. The police also found a letter in the top drawer of one of the file cabinets which was addressed to the defendant’s employer. Despite a lengthy and intensive investigation, the police could not locate the defendant. Then, some 18 years later, the crime was featured on a network television broadcast. The defendant was identified as a result of this broadcast and was arrested a few days later. He was tried and convicted for murder and sentenced to 5 consecutive life terms. He appealed his conviction on the ground that it was based in part on the letter to his pastor in which he confessed to the murders. The defendant insisted that this letter was protected from disclosure in court by the clergy-penitent privilege. The clergy-penitent privilege under New Jersey law provides:
[A] clergyman, minister or other person or practitioner authorized to perform similar functions, or any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role.
A state appeals court ruled that the clergy-penitent privilege was not violated since it did not apply to the facts of this case. It observed: “Defendant’s invocation of the clergy-communicant (priest-penitent) privilege is insupportable. It is clear both from the very terms of [New Jersey law] and the history of the privilege that it protects confidential communications only. The letter to [the pastor], left for anyone to find and read, cannot be considered to have been made with a reasonable expectation of confidentiality.” State v. List, 636 A.2d 1054 (N.J. Super. A.D. 1993).
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