EvidenceProf Blog

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

Wednesday, April 23, 2014

Ask the Chaplain: Detailing the Ins and Outs of the Military Clergyperson Privilege

An article yesterday from Air Force Global Strike Command notes that

Chaplains don't fill an exclusively religious role - they're present to help with personal problems as well, and they're especially serious about respecting the privacy of those who talk to them.  

"We are the only agency on base that has 100 percent absolute confidentiality protected under the Military Rule of Evidence 503," said  [Deputy wing chaplain] Williams. "This keeps the communication purely between the chaplain and the person that came to speak with him or her. 

The article gives me a reason to look into Military Rule of Evidence 503 and when it does and does not apply.

Let's start with the text of the Rule:

Rule 503. Communications to clergy

(a) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman’s assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

(b) Definitions. As used in this rule:

(1) A “clergyman” is a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.

(2) A communication is “confidential” if made to a clergyman in the clergyman’s capacity as a spiritual adviser or to a clergyman’s assistant in the assistant’s official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.

(c) Who may claim the privilege. The privilege may be claimed by the person, by the guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman’s assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman’s assistant to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule if the communication clearly contemplated the future commission of a fraud or crime, including concealment or asportation of evidence of a past crime, or if the consultation of the clergyman was sought or obtained to enable or aid anyone to commit or plan to commit what the maker of the communication knew or reasonably should have known to be a crime or fraud.

In United States v. Isham, 48 M.J. 603 (N.M.Ct.Crim.App. 1998), the U.S. Navy–Marine Corps Court of Criminal Appeals noted that there are three requirements for this privilege to apply:

“(1) the communication must be made either as a formal act of religion or as a matter of conscience; (2) it must be made to a clergyman in his capacity as a spiritual advisor ...; and (3) the communication must be intended to be confidential.”

As Rule 503(d) makes clear, however, even when the privilege would otherwise apply, there is a crime-fraud exception. Interestingly, though, this crime-fraud exception seems broader than the exceptions for other privilege. This exception covers not only future crimes, but also "concealment or asportation of evidence of a past crime...." I'm not sure how broadly this language is supposed to cut. Would it cover a Marine telling a chaplain, "I'm really worried because I smoke some dope, and I'm going to be drug tested tomorrow." Or what about a Marine telling a chaplain, "I cheated on my wife, and I'm worried about her finding out."



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Hello. I believe you may be citing here to the military commission rules of evidence (for aliens), and not to the military rules of evidence (for service members). I could be wrong though.

Posted by: Tarik | Aug 13, 2014 9:05:30 AM

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