EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, April 13, 2010

Forgive Me Father, Take 2: Supreme Court Of New Jersey Reverses Cleric-Penitent Privilege Ruling

Back in August 2008, I posted an entry about State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), in which the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. In response to the court's ruling, I wrote, "I agree with the court's conclusion but not its reasoning." Well, after the appellate division ruled against the defendant, he appealed to the Supreme Court of New Jersey, and that court disagreed both with the appellate division's reasoning and its conclusion in its recent opinion in State v. J.G., 2010 WL 1328844 (N.J. 2010).   

I listed the relevant facts in J.G. in my earlier post:

In J.G., in 2000, the defendant's children reported to their mother that their father had sexually abused them.  The mother then contacted her pastor, Glenford Brown, and reported the children's allegations.  While the defendant knew Brown from their native Jamaica, the defendant did not attend Brown's church in New Jersey.

Believing that he had a duty to protect the wife and children, Brown arranged to meet the defendant outside Brown's townhouse.  During that meeting, the defendant, "without directly saying [he] sexually molested them,...acknowledged what he did” and asked Brown, inter alia, "to counsel" him, but Brown declined because he was too angry with defendant and felt that he "needed real psychological help which [Brown] was not qualified to give."  A few weeks later, the defendant went to Brown's church, where he talked with Brown and "acknowledged what he did."  The defendant then asked Brown to baptize him, but Brown told the defendant he could not baptize him because Brown "thought he wanted cover for his actions" and urged the defendant to turn himself in to the police.

The defendant was subsequently charged with molesting his daughters, and he moved to preclude Brown from testifying about his confession pursuant to New Jersey Rule of Evidence 511, its cleric-penitent privilege, which states that:

"Any communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric's professional or spiritual counseling role."

The trial court granted his motion, but the Appellate Division reversed, finding that its analysis was governed by its previous opinion in State v. Cary, 751 A.2d 620 (N.J.Super.A.D. 2000), where it found that to warrant protection under the cleric-penitent privilege, "a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor." 

The Appellate Division then found that these elements were not satisfied because:

"(1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant-not as a spiritual advisor-but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help."

At the time, I contended that

the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential.  Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege?  It seems to me that the court placed a burden on the defendant that does not exist under the law.

With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent.  In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson.  If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.

That said, I agreed with the appellate division's conclusion, noting that

There is, however, an exception to this general rule, and that is why the court's third point was correct.  When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995).  And that's exactly what happened in J.G..  Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.

The Supreme Court of New Jersey agreed with me on the first two points, applying the objective reasonable person test, i.e., whether J.G. could reasonably have expected that his communications to Brown were confidential and that Brown was acting as a spiritual advisor." It, however, disagreed with the appellate division on the third point, finding that

Brown's refusal [to counsel Brown or baptize him] might lend support to the State's position that the Pastor was acting in a secular, and not a clerical, role. The [Association of Criminal Defense Lawyers of New Jersey], on the other hand, points out that a cleric's refusal to grant forgiveness does not necessarily strip a penitent's admissions and plea for help of protection. Indeed, Brown himself conceded that as part of his regular pastoral duties, he does refuse to baptize people. Faced with different views, the trial court was well within its right to rely on J.G.'s requests to be baptized in concluding his communications were privileged.   

Interesting. I don't claim to be an expert on religious matters, so I will defer to the New Jersey Supremes on this issue. And if other courts defer, it means that a clergyperson's refusal to render spiritual advice will is not fatal to operation of the cleric penitent privilege (whereas an attorney's refusal to render legal advice is fatal to operation of the attorney-client privilege).



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You're wrong. The failure of a lawyer to render legal advice is not fatal to the existence of a lawyer-client privilege. If the lawyer is sought out for legal advice but refuses to take the person's case (due to a conflict, say), the conversation is still protected by the L-C privilege. See Proposed FRE 503(a)(1). Therefore, the NJ court's ruling is perfectly consistent with how the L-C privilege is treated, and, in my opinion, perfectly correct.


Posted by: Fred | Apr 14, 2010 10:16:13 AM

Fred, thanks for the comment. I think that we are thinking of two different situations. In situation 1, a prospective client goes to an attorney, explains his case, and the attorney then refuses to take the person's case. In that situation, the attorney-client privilege absolutely covers the conversation. In situation 2, a prospective client goes to an attorney, explains his case, the attorney then refuses to take the person's case, and then the prospective client makes incriminatory statements. In that situation, the attorney-client privilege covers the conversation before the attorney's refusal, but it would not cover the prospective client's statements after the attorney refused to take the case. That was (basically) the situation in Gionis.

Posted by: Colin Miller | Apr 14, 2010 10:56:14 AM

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