The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

(f) Confessions.

220. Competent Witness.—Everybody who has the use of reason and understands the import of an oath is a competent witness.

221. Confessions, Secret Societies.—At common law, confessions were admissible; but there is no case in the United States since 1813 where the court has sent a priest to jail for contempt for refusing to disclose a confession, and no case in which a priest disclosed a confession. Immediately after a priest was committed for contempt for refusing to divulge the secrets of the confessional, in 1813, New York enacted the following law: “No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.” A similar law has been adopted in the following States and Territories: Alabama, Arizona, California, Colorado, Idaho, Iowa, [pg 127] Kansas, Kentucky, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, New York, Oklahoma, South Dakota, Utah, Washington, Wisconsin, Wyoming, and Hawaii. The secrets of a secret society are not privileged, and a member as a witness must answer all relevant questions in court.[396]

222. Privilege, Answer.—When a question concerning a matter privileged is put, the priest should say: “I claim my privilege as a clergyman and ask the court not to require me to answer”; “Whatever he said concerning the matter, was said to me in the confessional as a priest”; “I talked with him about the matter only in my professional capacity as a priest and confessor”; “I did not speak to him about the matter except in my confidential capacity as priest;” or a similar statement that sets up the clergyman's privilege without giving facts. A clergyman should not say: “He confessed it to me,” or “He told it to me in confession,” or give any other answer that implies what was said in confession, as jurors are always watching for a hint of what was said. Neither should the priest say, “I refuse to answer,” without stating that he refuses because of his privilege as a clergyman. [pg 128] The trial judge or the attorneys trying the case may put proper questions to determine whether the information was given the witness in the confessional or in his capacity as confessor.[397]

223. Admissions, False Statements.—Admissions or statements made to a clergyman not in his capacity of confidential adviser or in the course of discipline, are not privileged.[398] Neither are false statements made to a committee investigating charges; but all statements made to such a committee or an officer of the church, unless false and made with malice, are privileged.[399]

224. Anonymous Letter, Clergyman.—Where a priest received an anonymous letter alleged to have been written by a defendant, which he read to her, he was not disqualified from testifying that she was excited and that she stated she had no idea how the fire started, and that the letter was unknown to her, etc.[400] The mere fact that a communication is made to a clergyman does not make it privileged. It is privileged only when made in confidence of the relation and under such circumstances as to imply that it should forever remain a secret in the [pg 129] breast of the confidential adviser.[401] When a matter is privileged, it is not left to the witness whether or not he shall testify concerning it; but he can not testify without the consent of the other party.[402]

225. Voire Dire.—Where a priest made a preliminary examination of a woman to ascertain her mental capacity to make a confession, her answers in such preliminary examination were admissible in a contest on a will; but her confession was not admissible.[403]

226. England, Confession.—The rule is now accorded priests in England, but was not formerly. Where a priest turned a watch over to its owner, the court ordered him, under pain of contempt, to tell where he got the watch.[404] But in another case it was held that a priest need not divulge the confession of a defendant who was held for crime.[405]

227. United States, Rules.—In the United States courts, the rule prevails that such confidential communications to a priest shall not be divulged.[406]

228. Presumptions, Usage.—The usage of a church or the laws of its organization as a religious society, if they are to be considered in deciding legal controversies, must be proved as facts.[407] In the absence of proof, it will be presumed that subordinate bodies, as congregations, can not dissolve their connection with the principal organization without permission.[408]