*1 Carolyn MULLEN, Appellant, America,
UNITED STATES Appellee.
No. 14663. Appeals
United States Circuit. of Columbia
Argued Nov. 4, 1958. Dec.
Decided Jan. Statements
Additional Latto, Washington, J. Lawrence Mr. D. court) (appointed appel-
C. lant. Bonner, Atty., J. Asst. U. S. Walter Mr. Gasch, Messrs. Oliver whom U. Belcher, Atty., Carl W. Asst. U. S. brief, appellee. Atty., *2 Reed, retired,* year. Before Mr. Justice one We commend these facts
Edgerton Judges. Fahy, Circuit consideration United States Attorney. Judge. EDGERTON, Circuit Reversed. appeal under a conviction is from (1951) 22-901, makes D.C.Code § FAHY, Judge (concurring). Circuit cruelly beat, “torture, abuse, it a crime to concurring wilfully add that another or otherwise a child. maltreat” ground urged by appel- for young reversal Appellant’s were found Children lant, namely, the admission in was ab- chained while house she testimony aof minister of state- sent. that had There was she evidence, ap- ments made to the minister them, she done chained ajlso pellant penitent preparation as a “protection”. so for their receiving communion a Lutheran jury com- rightly as a mat- charged desiring delay municant. Not the de- appellant “torture” of law did not ter cision, I will a later regard file at date a state- the children. But j question ment of “wilfully views on statutory “hbuse” and words testimony. charged jury maltreat”, the court acting Judge “was rea- appelant decide Statement Fahy, Circuit sonably Edgerton Judge circumstances with Whom Circuit danger- whether it was unreasonable and Concurs, Separate Cir- Statement ¡ Judge Question ous.” cuit Edgerton, Admissibility Testimony. Certain certainly unreasonable, It was probably to chain dangerous, January 29, 1959 appellant chained them children. But if protection, she did for their own FAHY, Judge, Circuit with whom Cir- “wilfully maltreat” them “abuse” or Judge cuit EDGERTON concurs: meaning That within the Code. When the case decided December something language than calls for worse 1958,1 concurred and stated that would judg good with bad coupled intentions give my later admissibility views construing recently As we held in ment. testimony of a min- language, explicit “the less ister as to statements made to him concept common law of crime a com appellant penitent preparation aas state of evil mind an bination receiving ] communion as a Lutheran doing applies act of an evil communicant. The is whether felony.” Levine v. these statements -, U.S.App.D.C. 261 F.2d Mor munications, such as those between hus- isette attorney, band and wife and client and and, therefore, 96 L.Ed. The court’s admissible in evidence. requirement charge of an omitted the] briefly The minister had testified aas was therefore er mind and state of evil appellant. character He then roneous. appears to have become troubled because jury acquit well have subsequent mifeht of what occurred to his tes- the erroneous appellant but ted timony. Appellant i had taken the stand charge. reverse under F.R. We therefore chaining and had denied the children. 52(b), U.S.C. Screws Cf. Crim.P. The minister then asked see the trial judge chambers, him visited 1495. We do con Ct. where he stated he felt he had been alleged errors. other say sider unable to all his conscience im- pelled say. judge him As a result limited under- Appellant is a woman himself recalled the minister standing. more than She was.indicted give imprisoned court’s witness to further ago years more than evidence. two 294(a), designation pursuant * Sitting Sec. Title U.S.Code. fam- stating impressions of the Proc. 18 U.S.C.A.” Pinkard
After F. U.S.App.D.C. children ily relations between mother, minister Appellant appellant, 2d ing chain their had denied direct *3 the children and was no as follows: there testified except a so that she had done the defendant I had seen “[A]fter loyal, reluctant from her assent drawn Jail, came to she in the District six-year had old son after he been sub know whether wanted to office. She jected lengthy persistent to exam a communion. come to could she ination, despite during age, his which long there her that as advised repeatedly he had mother. exonerated his mis- suspicion any to her was chaining treating preliminary children the A further matter. her to appellant I could admit the the them munion; Was disclosure to says Book the Good that minister a a confession to confidential is spiritual sins God our if we confess be adviser ? The answer would forgive our just us relationship priest to clearer faithful were the un- from all penitent involved, priest us cleanse and to the sins righteousness. where is known discipline be to the to bound silence The and laws of church. his she admitted “She appears present felt witness not to have expla- children with chained the I think bound this manner. But for their it she did nation that * * * privilege if exists a confession it includes . tection by penitent capac to a in his a minister counselled her “I advised spiritual to obtain aid such wrong and sinful.” that was her that sought as was instance.1 held out objection tes definitely to lack of The T he minister indicat ruling upon timony preclude our by confessing does sins him ed that to admissibility. affirma was no There appellant spiritual its would receive the use, fact any event, its tive consent desired. In benefits she to enough tended judge called the was indicated cause further addition, uncer objection. In inquiry by restrain tainty the court as to the character evi applicable rule toas if In of the disclosure doubt remained. object. goes failure far to excuse appropri dence these circumstances deem testimony was important, the But more ate to reach the admissibil our exercise might ity, especially we should critical that as the arise again My consider its discretion be case retried. “ ‘Plain required do so. if privi even is such a confession is a view that leged * * * affecting substantial errors communication which is not com although they rights may noticed trial, petent a evidence on least brought attention penitent’s were not its absence consent to 52(b), Crim. Fed.Rules court.’ use.2 Swenson, 183 Minn. original testimony re 1. See In minister’s limited where, though 589, 590, knowledge people 287 N.W. Ms what other applied “in community a confession thought to such appellant statute enjoined by discipline respect good the course she was a body religious practice of the Only rules or after mother. the minister left the belongs”— minister] [the he to which sought judge out the stand did the Lutheran Church—- also the in that case judge recall minister the court’s recognized. privilege was “Testimony attorney witness. not relate to which does com testified on minister 2. fact client, between munications him his appellant a character wit- behalf privi waiver of does not constitute did not waive ness n Wigmore,infra, Drayton leged p. communications.” “a v. In has stated at * * * Co., only predicated Life & Health Ins. dustrial waiver to be S.C. plain And in- 31 S.E.2d see conduct indicates Mont when the Pickering, gomery privilege.” abandon tention to is said Totten the claimed was not one Supreme and, therefore, at common if now to recognized ; Court said: be enacted into stat- must ute, done.4 How- has not maintained cannot “[S]uits ever, see, as we shall require a disclosure which would privilege in federal does not de- confessional, . confidence of the pend upon finding ex- that it has either wife, husband or those between uniformly isted at common law or has client or of communications approved been in terms act of Con- professional ad- counsel gress. enlarging upon Before this it physician *4 vice, patient or of a noting during post- worth that even purpose.” for a similar religious period, Reformation when dictum, political confession largely pattern since the was This tensions set the too, So, privilege matters, involved. judicial al was not in such legal writings decisions and in Judge uniformly Hand’s statement Learned were not hostile Exchange privilege.5 McMann Securities to the v. 377, 1937, Commission, Cir., F.2d 87 2 problem today The resolution of the 1445, denied 378, certiorari 109 A.L.R. for federal is to found in a 684, Engle, 57 S.Ct. McMann 785, 301 U.S. v. proper application 26,- of Rule Fed.R. 1342, he included where 81 L.Ed. Crim.P., adopted in 1948 under the au- among privileges the traditional thority Congress. provides: This Rule Judge our penitent. Holtzoff of And “ * * * passing admissibility in has also said District Court competency evidence and the States of the United law that privileged the. privileges gov- include witnesses shall be communications erned, except as “clergyman penitent” well when an as act Con- gress physi attorney these rules otherwise and client those of statements, vide, by principles patient. com- These cian and 3 they may interpreted question, mon law as though in not decisions! They position. as courts of the United States dicate the correct light experi- in of reason sume the existence ence.” priest- highly probable It is penitent privilege of the law even before thus was This was decisional pre- England Rule. of the in the centuries in a See Notes formalized mon law lengthy Advisory Rules, ceding where Reformation. See Committee on by Nolan, study The¡ of the Seal Rule 26 reflects the deci- Law stated that it is Encyc. Supreme 649-65. Confession, Court in Funk 13 Catholic sions of v. however, States, 371, study 290 U.S. 54 S.Ct. United same demonstrates, privilege 212, 369, L.Ed. and in Wolfle v. Reformation 78 after the recognized, 7, generally 279, 291 54 S.Ct. 78 L.Ed. means no appears!to have been abro- And see Hawkins v. United 617. in fact and gated 74, 136, 125, of this it L.Ed.2d Because 79 S.Ct. 3 358 U.S. or abandoned*! 1892, 378, Kimpton, Coke, standing 155 sometimes cited 5. Blount v. against privilege, seems to have rec- 590. 29 N.E. except ognized treason trials. D.D.C.1953, Keeney, v. States 3. United Wigmore, And see 629. Evi- Institutes 234, F.Supp. 233, reversed on other ed.) pp. where at dence 844-845 the U.S.App.D.C. 366, grounds, 218 F.2d Coleridge forth a sets letter from author contrary possibly see discussing privilege and, to Gladstone H.R.Rep. 2520, No. 85th reference 848-849, pp. Bentham, a statement of (1958), a case of Cong., Mac 2d Sess. greatest reputed opponent be the Municipal in the MacArthur Arthur privileges general, justifies in which lie of Columbia. particular privilege. of this pláced Many on have states (cid:127): basis. “ 1958, 24, ‘It has said often recently been November decided adhering com that the though rule dis- become axiomatic where, testifying flexi mon law is ble, immutable but qualifying a from wife adapts husband, principles against its own criminal case varying Funk authority itself to conditions.’ conferred Court restated States, supra, “to 290 U.S. at upon the federal courts page 383, page 216.” un- S.Ct. at of evidence determine law ‘principles common der the States, supra, Funk involved ** * in they may interpreted testify competency on wife ” experience.’ light of reason crime behalf of her husband trial for ciples witnesses Wolfle federal Criminal rule Rule ance Stone’s “The Funk case [54 are promulgation was a developments and at 344 U.S. with reason courts or S.Ct. explained [page] statement as to the Procedure. L.Ed. of the to be formulated paraphrase of Mr. Justice 279]. Congress in accord- States, 291 U.S. in Lutwak Federal Rules [54 left the as follows: 613-615, There competency of * this governing prin- Wolfle, experience. ** Court followed at by the 73 S.Ct. page of of the common rendered her quoted approvingly present in a federal court. [*] Rosen v. United fying federal referred, of the common-law rule of in a case no Court had concluded “that the dead hand in the [*] longer Supreme Court, *X* courts, ” *5 involving be decisions to well incompetent applied convicted of rule which would have without the old rule from the ultimate free to resolve our departing to such cases which additional the Court crime, leave authority disquali- we where from leg they may n 279]. experience. The against principles of the rules authorized has not problem here. further ples existed from law “Under [*] witnesses us to are rule do not testifying in in the at [*] criminal acted, say disqualifying this common law. other this is to be necessarily abrogate specifically [*] rule, light Therefore, interpreted spouse. procedure, governing princi- common law governed by the has [*] criminal cases we shall reason and competency one answer the specifically prescribe [*] they had common- but spouse open [*] go hand of the commonlaw will not restrain When reason and cisions area of effect of islation. we the conditions whether tained in such sion of applicable to ognition confessant We come then enlarging rely present governing principle recognition. has been heavily upon privileged reason ed.). of a It restricting Wigmore, privilege. is true rather than privilege It chiefly experience to the communications con- there evidence the dead experience Evidence basic common For of the confessor- in the direction communications which has the lengthy restricting evidence, shown that all final is the same. trend call §§ answer do call discus- of 2285- rec but de opinion concurring had to do with the See Mr. Justice case Lutwak 6. The gone in Hawkins competency Stewart who of women supra, marriage through ceremonies immigration plan laws evade a testify spouses. against “ostensible” their permitted. testimony Their apply relationship priest-peni- support the claims of Reason says tent. Wigmore,. The author has “this See discussion in adequate grounds recognition” supra, 2394-96; when People at v. Daniel §§ governing Phillips Wife, tested the four canons West.L.J. privileged communications, namely, (1813). time, In our own its cli- remains, religious freedom, mate of there “(1) The communications must federal, adoption by no barrier originate they ain confidence courts of a rule this sub- disclosed; will not be ject policy.8 dictated sound “(2) This element of confidential- policy experience- Sound must be essential to full and —reason religious liberty —concedes to satisfactory a rule of maintenance of the re- clergyman evidence that a parties; not dis- shall lation between the penitent’s-, close on trial secrets “(3) The relation be one must least, him, confidential confession to commu- penitent’s absent the Knowl- consent.
nity ought sedulously to be fos- edge acquired performance tered; and spiritual function as indicated “(4) injury inure would case is not transformed into evi- to the relation the disclosure given dence to be to the whole world.. greater the communications must Wigmore points out, a confiden- gained thereby than the benefit tial require- communication meets all the litigation.” disposal the correct ments that have rendered communica- *6 original.] [Italics in the tions between husband and wife and at- torney and client non-recognition incom- appears It thus petent. preserving The benefit of these- of periods at certain confidences inviolate overbalances the- development of the common law was in- possible permitting litigation-, of benefit principles consistent with the basic of prosper expense tranquil- common law itself. It would be no home, perpetuate integrity service the common law to in its relationship, spiritual' name a rule of evidence which is fessional rules, foregoing penitent. inconsistent with funda- rehabilitation of guides always mental furnished law. evidence have been concerned' And, seen, only have we the denial was with truth but with the manner- strong resolute, uniform never so of its ascertainment.9 authority evidence, In the detailed discussion of 8. course to formulate rules of subject evidentiary jurisdiction, rules this within the limita jurisdiction opinion See, also, People Mr. Justice stated. v. tions Stein York, 156, 187, Frankfurter Court in Griffin v. State New 346 U.S. 714, States, 704, 1077, 1522, 336 69 United 97 73 S.Ct. Supreme Court, L.Ed. where the 993, 814, 818, L.Ed. Ct. 93 states: as it had in McNabb v. 332, 341, United 318 U.S. 63 “If can enact substantive 87 S.Ct. referred to- exclusively rules criminal power promulgate its rules evi Columbia,4 Ap- District of federal dence for courts. And see- peals ought for the District of Columbia our own decision v. Gillars opportunity be denied to formulate U.S.App.D.C. 16, 23, 87 182 F.2d- appropriate for the Dis- 962, 969. long trict, as the rules do chosen or constitutional limita- offend authority The view I take of of the- tions.” federal without the- legislation by Congress,, of evidence It rules need of further clear precise counterparts unecessary find their need not has made it all review au- However, law. common thorities cited to us. the- append twelve down within months after' convenienee of the handed student adoption 26, Fed.R.Crim.P., of Rule reference to those cited but which have- delegating supra, and has effect of not been used the text of this state- court at initial as it were least ment.
281 Judge. husband, doctor, lawyer, EDGERTON, or minister. As Circuit wire-tapping, Holmes Mr. Justice said of in rea- made I think a communication choose, “We and for dis- will not be sonable confidence that it think a less evil that criminals some closed, and in such circumstances escape should than that the Government shocking the moral sense disclosure is ignoble part.” play should an Olmstead community, dis- not be 438, 470, v. 48 judicial proceeding, closed in a (dissenting L.Ed. 944 72 wife, person or is not a opinion). the trusted court-appointed Cited or referred to Cited or referred to the United appellant: however, omitting, counsel for those listed Drake, appellant: 15 v. Commonwealth as cited counsel for 161; Bahrey Poniatishin, 1920, Attorney Briant, v. General 15 Law 481; J.Rep. (N.S.) Excheq. 265, (1846); 112 A. State v. 95 N.J.L. 271 Morehous, 1922, Reg. Griffin, A. 97 N.J.L. 6 Cox’s Criminal Law Trial, (1852-55); Reg. Smith’s Amer.St. Christian Cases 219 v. Castro (1817); Carroll, (Tichborne Trial), Charge Cook v. Ir. Trials of C.J. 648 [1945]; (1874); § R. 97 C.J.S. Witnesses 58 Am.Jur. Witnesses § 531 (1957); (1936) (1948); Annotation, 1952, 50 Harv.L.Rev. 22 A.L.R.2d (reprint 1152; Wigmore p. of “The Common Law in the Evidence Stone); Hogan, ed.); Lawyer 199, (1955); United States” C. J. 1 Cath. Privilege Act, A Modern Problem on the N.X.Civil § Practice Loyola Confessional, L.Rev. 1 (1951).