Federal Evidence Review

In denial of motion to compel clergy member to give testimony before a federal grand jury about matters discussed in family counseling sessions, Third Circuit recognizes under FRE 501 the existence of a federal clergy-communicant privilege, but remands to trial court to make findings concerning whether privilege claimants communicated with the clergy member in a spiritual or professional capacity and whether they had a reasonable expectation of confidentiality, in In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990)(No. 89-3817)

It is not often that federal courts apply a federal clergy-communicant privilege. As a result, the authority for the existence of the privilege is not as heavy as it is in other areas of privilege law. In re Grand Jury Investigation, 918 F.2d at 377. In 1980, the Supreme Court, without recognizing the applicability of the privilege, noted the basis for such a privilege as “recogniz[ing] the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” Trammel v. United States, 445 U.S. 40, 45 (1980) (in dicta, noting FRE 501's application by federal courts underlies a development of privilege law and suggesting that the marital testimony privilege was similar to the “priest-penitent” privilege). In 1990, the Third Circuit undertook a broad discussion of the applicability of a clergy-communicant privilege in the federal courts - a discussion that remains the most extensive on this matter today.

In the case, a federal grand jury sought the testimony of a Lutheran clergyman about matters considered in a family counseling session, as part of its investigation of racially motivated housing discrimination and a conspiracy to deny civil rights to minorities. The investigation also involved whether this led to the arson of a black family's home, which was located next door to a family whose members the pastor had counseled. The counseling occurred in a family counseling session in which the family's husband and wife, who church members, met with the clergy member, the wife's adult son and the son's fiance. The trial judge granted the clergyman's motion to quash the subpoena compelling him to testify before the grand jury. The court reasoned that the communication "to be protected, must be made in confidence. It found, however, that the communications of family group members to the pastor were, as the pastor understood them to be, confidential." The government sought review of this determination of the applicability of the privilege before the Third Circuit.

The Third Circuit vacated the trial court order and remanded the matter with instructions to make "carefully framed inquiries [so as to] be able to obtain sufficient information to determine whether the clergy-communicant privilege should apply in this case." In re Grand Jury Investigation, 918 F.2d at 388. In making this order, the circuit recognized the existence of the privilege. The court noted that there was a federal privilege covering communications made to clergy in that clergy's spiritual and professional capacity "with a reasonable expectation of confidentiality”. In re Grand Jury Investigation, 918 F.2d at 384.

The circuit concluded that:

"American common law, viewed in the light of reason and experience ... compels the recognition of a clergy-communicant privilege. Both state and federal decisions have long recognized the privilege. The Supreme Court Rules Committee also recognized the privilege. That is doubtless because the clergy-communicant relationship is so important, indeed so fundamental to the western tradition, that it must be 'sedulously fostered.' Confidence is obviously essential to maintaining the clergy-communicant relationship. Although there are countervailing considerations, we have no doubt that the need for protecting the relationship outweighs them."

In re Grand Jury Investigation, 918 F.2d at 384 (citations omitted).

The circuit set out a three foundational conditions for existence of the privilege. The privilege should apply in a federal court when:

"[C]ommunications [are] made (1) to a clergyperson (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of confidentiality. As is the case with the attorney-client privilege, the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege. This statement of the contours of the privilege is consistent with the provisions of Rule 506, which, as our study of the federal case law confirms, tracks the evolving common law. In addition, we note our agreement with the tenor of the Advisory Committee's Note to proposed Rule 506, which extends the scope of the privilege to encompass not only communications between Roman Catholic priests and their penitents, but also communications between clergy and communicants of other denominations."

In re Grand Jury Investigation, 918 F.2d at 384-85 (footnote omitted).

Having concluded that the privilege existed under federal law, the circuit also noted that its treatment of the issue was not exhaustive. In fact, "Our delineation of the privilege is not comprehensive. We illuminate here ... only those facets and boundaries of the privilege that are implicated in this case. The privilege is a common law rule. The precise scope of the privilege and its additional facets, such as whether a clergyperson should be required to disclose confidential communications when harm to innocent parties is threatened and imminent, are, therefore, most suitably left to case-by-case evolution." In re Grand Jury Investigation, 918 F.2d at 385.

Today, the Third Circuit's assessment of the privilege that it undertook in the 1990 case remains one of the more extensive delineations of the application of the privilege in the federal courts. As the circuit recognized, there were a host of issues that arose in connection with other privileges that also would arise with the clergy privilege. It remains to be seen whether other circuits will have occasion to address the applicability of and the scope of any federal clergy-communicant privilege.