Federal Evidence Review

In review of denial of order to compel clergy member to testify before federal grand jury, vacating and remanding so that the trial judge may "develop a sufficient record or make sufficient findings" for application of a privilege that protects "communications made (1) to a clergyperson (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of confidentiality," in Re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990) (No. 89-3817)

"There is a relative dearth of federal precedent establishing the existence and contours of a clergy-communicant privilege," noted the Third Circuit in deciding one of the most comprehensive federal appellate court cases on the clergy-communicant privilege in 1990. In re Grand Jury Investigation, 918 F.2d at 377. In the twenty years since, only a handful of district court cases and even fewer circuit cases have touched on this federal evidentiary privilege. As a result, there are a few comprehensive sources of information about this federal privilege. The Third Circuit case, In re Grand Jury Investigation, is one most frequently cited regarding the application of the clergy-communicant privilege in federal proceedings.

In the case, the government appealed the district judge's denial of an "order ... to compel the federal grand jury testimony of a Lutheran clergyman." The purpose of the testimony was to understand his participation in a family's counseling session. The government sought this information because "it had reason to believe that" four individuals suspected of involvement in an alleged arson, "had discussed their involvement" with the clergyman. According to the clergyman, "family counseling, in contrast to individual counseling, constituted a typical and important part of his ministry.... [H]is ministry as founded upon the Judeo-Christian notion of redemption and forgiveness through counseling and prayer.... [and] that forthrightness and truthfulness on the part of participants ... are essential to proper counseling and, ultimately, to redemption. He concluded that those whom he spiritually counsels expect that he will keep any communications made to him in strict confidence." In re Grand Jury Investigation, 918 F.2d at 378. As a result, "[t]he district court held that a clergy-communicant privilege, existing under federal common law, barred the testimony. The grand jury was investigating whether racially motivated housing discrimination and a conspiracy to deny civil rights led to an apparent arson at the home of a black family that lived next door to the family whose members the pastor counseled." In re Grand Jury Investigation, 918 F.2d at 377.

The circuit affirmed the district court finding that the pastor's discussions with members of a counseling could be subject to a privilege. As described by the circuit, the privilege encompassed:

"[C]ommunications 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."

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

The circuit also undertook to define some aspects of these foundational elements to the clergy-communicant privilege, for example:

• Clergy: "[A] workable definition of a clergyperson: 'A ‘clergyman’ is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.'By endorsing this definition of a clergyperson, we do not intimate that the privilege should be interpreted to comprehend communications to and among members of sects that denominate each and every member as clergy, proclaim that all communications have spiritual significance, or dictate that all communications among members, whether essential to and in furtherance of the purportedly privileged communication or not, shall be confidential. In re Grand Jury Investigation, 918 F.2d at 384-85 n.13 (citations omitted).
• Nature of the Communication: "[I]n order for the clergy-communicant privilege to apply, the communication protected must, at a minimum, be made with a reasonable expectation of confidentiality to a member of the clergy acting in his or her professional or spiritual capacity." In re Grand Jury Investigation, 918 F.2d at 385.
• Presumption Of Confidentiality: "We note, in addition, that the existence and applicability of a privilege may be undermined by the presumption, rebuttable by the party asserting the privilege, that communications that take place in the presence of third parties are not confidential." In re Grand Jury Investigation, 918 F.2d at 385.
• Privilege Holder: "We also need not address at any length the question of who may assert the privilege. The authorities recognizing the privilege would allow it to be asserted, as it was here, by a clergyperson on behalf of a communicant. We need not reach the issue, therefore, of whether Pastor Knoche could assert the privilege on his own behalf. In re Grand Jury Investigation, 918 F.2d at 385.
• Foundational Burden: "With respect to the question of which party carries the burden of proof in establishing the privilege's applicability, it is clear, in this Circuit, that a party who asserts a privilege has the burden of proving its existence and applicability. In re Grand Jury Investigation, 918 F.2d at 385 n.15.
• Basis Of Privilege: "We are satisfied ... 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." In re Grand Jury Investigation, 918 F.2d at 384.

While recognizing the existence of a federal clergy-communicant privilege, the circuit found it necessary to vacate the trial judge's order, explaining:

"Although the district court was correct in recognizing the existence of a clergy-communicant privilege, we are unable to affirm its order denying the government's motion to compel Pastor Knoche's testimony. That is because, given the contours of the privilege as we have defined it, the court did not develop a sufficient record or make sufficient findings to enable us finally to review its order. In fairness to the district court, we note that the court did not, at the time of its decision, have the benefit of the standards that we announce today. We must nevertheless remand the case for further proceedings."

In re Grand Jury Investigation, 918 F.2d at 387.