In
United States law
The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the supreme law is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...
, confessional privilege is a
rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and church members.
It grows out of the
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
and
statutory
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
enactments which may vary between jurisdictions.
Statute
All fifty states, the District of Columbia, and the federal government have enacted statutory privileges providing that at least some communications between clergyman and parishioners are privileged.
Common law
Prior to the adoption of statutory protections, there was some protection under common law.
*New York: In People v. Phillips (1 Southwest L. J., 90), in the year 1813, the Court of General Sessions in New York recognized the privilege as in a decision rendered by
De Witt Clinton
DeWitt Clinton (March 2, 1769February 11, 1828) was an American politician and Naturalism (philosophy), naturalist. He served as a United States Senate, United States senator, as the mayor of New York City, and as the sixth governor of New York. ...
, recognized the privilege as applying to Rev.
Anthony Kohlmann
Anthony Kohlmann (born Anton; July 13, 1771 – April 11, 1836) was an Alsatian Catholic priest, missionary, theologian, and Jesuit educator. He played a decisive role in the early formation of the Archdiocese of New York, where he was ...
, S.J., who refused to reveal in court information received under the seal of confession. (Incidentally, the successful argument in favor of the privilege was made by
William Sampson, a Protestant lawyer exiled from Ireland for defending Catholics.)
["The Catholic Question in America", by Anthony Kohlman and William Sampson, New York, 1813]
There is also Smith's case reported in the "New York City Hall Recorder", vol. II, p. 77, which, apparently, was decided in the same way.
*
Massachusetts
Massachusetts ( ; ), officially the Commonwealth of Massachusetts, is a U.S. state, state in the New England region of the Northeastern United States. It borders the Atlantic Ocean and the Gulf of Maine to its east, Connecticut and Rhode ...
: In Commonwealth v. Drake
1818) 15 Mass., 154 it was argued on the one side that a confession of a criminal offence made penitentially by a member of a certain Church to ''other members'', in accordance with the discipline of that Church, may not be given in evidence. These others (who were not clergy) were called as witnesses. The solicitor-general argued that religious confession was not protected from disclosure. He also took the point that in this case "the confession was not to the church nor required by any known ecclesiastical rule", but was made voluntarily to friends and neighbors. The court held that the evidence was rightly received (not protected).
Issues
The privilege is defined in over 50 separate statutes and may therefore vary in important ways:
* Who qualifies as a member of the clergy
* What communications are covered by the privilege
* Who holds the privilege
The
Child Welfare Information Gateway
The Child Welfare Information Gateway is the congressionally mandated and funded information service of the United States Children's Bureau, Administration for Children and Families, United States Department of Health and Human Services. It was es ...
states that the privilege of maintaining this confidentiality under State law must be provided by
statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
. Most States provide for clergy–penitent privilege within rules of evidence or civil procedure.
Footnotes
See also
*
Privilege (evidence)
In the law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or ...
*
Confidentiality
Confidentiality involves a set of rules or a promise sometimes executed through confidentiality agreements that limits the access to or places restrictions on the distribution of certain types of information.
Legal confidentiality
By law, la ...
*
Duty of confidentiality
In common law jurisdictions, the duty of confidentiality obliges solicitors (or attorneys) to respect the confidentiality of their clients' affairs. Information that solicitors obtain about their clients' affairs may be confidential, and must ...
*
Admissible evidence
Admissible evidence, in a court of law, is any Testimony, testimonial, Documentary evidence, documentary, or tangible evidence (law), evidence that may be introduced to a Trier of fact, factfinder—usually a judge or jury—to establish or to ...
*
Priest–penitent privilege
The clergy–penitent privilege, clergy privilege, confessional privilege, priest–penitent privilege, pastor–penitent privilege, clergyman–communicant privilege, or ecclesiastical privilege, is a rule of evidence that forbids judicial inquiry ...
{{Use mdy dates, date=March 2012
Law of the United States
United States
The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...