State v. SzempleState v. Szemple
During defendant‘s trial for murder and after the State had rested its direct case, the State moved to reopen to introduce two alleged confessions by defendant. One was contained in a letter written to defendant‘s wife and obtained by her father. The second was allegedly made to a “minister of visitation” during the minister‘s visits to defendant while he was incarcerated. Defendant objected to the use of this evidence on the grounds the former was protected by Evid.R. 28,
The critical facts concerning application of Evid.R. 28 are as follows. Early in 1991, after defendant had been arrested,
Later, when Boyle read the letter, he thought it was “dynamite,” especially a part of page eight that read: “My first hit was an act of treachery, the ultimate deceit. Four bullets in the back, one in the neck.... I never did tell his mother what happened to him. The second I pulled the trigger, I became larger than death to all of my associates.” The prosecutor presented evidence which tied the statement in the letter to the murder victim. In ruling that the letter was admissible, the trial judge concluded that the letter, although it would have been privileged under Evid.R. 28 if in Theresa‘s possession, lost that protection when it came into her father‘s possession without her consent, connivance or aid.
The facts concerning application of Evid.R. 29 are as follows. Paul Bischoff, a retired Newark firefighter, served as Minister of Visitation for the Trinity Baptist Church in Montville, having obtained a certificate of ordination to that ministry from the church. During the period between April 1991 and January 1992, in his capacity as visiting minister Bischoff visited defendant in jail about nineteen times. In October or November 1991, defendant admitted to Bischoff during one of his jail visits that he had killed “not one but three.”1 Bischoff reported
I.
Preliminarily, we think it important when considering the scope of various privileges to recognize that privileges preventing disclosure of relevant evidence are not favored and may often give way to a stronger public interest. State v. Briley, 53 N.J. 498, 505-06, 251 A.2d 442 (1969). This is so because such privileges “are obstacles in the path of the normal trial objective of a search for ultimate truth. They are accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure.” Id. at 506, 251 A.2d 442. Strict adherence, moreover, to privileges “promotes the suppression of truth, [and] should be construed and applied in sensible accommodation to the aim of a just result.” Ibid. Accord State v. Schreiber, 122 N.J. 579, 582-83, 585, 585 A.2d 945 (1991) (“Of privileges, it has been noted that ‘their effect ... is clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light.‘” Id. at 582, 585 A.2d 945 (citation omitted)); State v. Shahamet, 228 N.J. Super. 340, 344, 549 A.2d 884 (App.Div. 1988). See Evid.R. 7 (“Except as otherwise provided in these rules or by other law of this State ... (d)
Thus in Schreiber the scope of the physician-patient privilege “in a civil action or in a prosecution for a crime or violation of the disorderly persons law or for an act of juvenile delinquency,”
II.
Commonly referred to as the marital communications privilege, Evid.R. 28,
No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication.
[See also Evid.R. 23; N.J.S.A. 2A:84A-17 ].
As amended by Act of November 17, 1992, L. 1992, c. 142, Evid.R. 28,
unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action in or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2)....
[Emphasis added].
The amendment similarly narrows the scope of spousal privilege in Evid.R. 23,
We view these amendments to both the spousal privilege and the marital communication privilege as significantly limiting their preclusive effect. Although not directly applicable to this appeal, since the disclosure occurred by way of a third party and we do not know whether defendant‘s wife would now voluntarily disclose the content of the letter, we think the amendments substantially remove the basis of defendant‘s argument on appeal. In this respect counsel argues that the “threshold question in determining this issue ... is whether the
In so arguing, defendant relies primarily upon the comment contained in the 1967 Annotations prepared by the Rules of Evidence Study Commission of the New Jersey Legislature that “once privileged, always privileged.” Biunno, N.J.Rules of Evidence, explanation to Evid.R. 28 (1967). This is no longer correct; the communication may now be disclosed by the receiving spouse without restriction and thus it is no longer so that the communication is “once privileged, always privileged.”
In any event, we think the trial judge properly concluded the privilege did not apply. There was no evidence presented that would in any way have suggested that Boyle obtained the letter through any involvement of defendant‘s wife. The undisputed testimony was that he found it in some boxes while helping her to move and removed it from the house by hiding it in his shirt. Since there was nothing to suggest the letter was in some way disclosed by defendant‘s wife, Evid.R. 28,
The view that the marital communication privilege does not apply to a written communication that has come into the possession of a third party is the majority view. The general rule is that if written communications “were obtained surreptitiously or otherwise without the addressee‘s consent, the privilege should cease.” 8 Wigmore on Evidence § 2339, at 668 (McNaughton rev. 1961). See 1 McCormick on Evidence § 82, at 302-04 (Strong ed., 4th ed. 1992); C.J. Miller, Annotation, Applicability of Marital Privilege to Written Communications Between Spouses Inadvertently Obtained by Third Person, 32 A.L.R. 4th 1177-87 (1984) (collecting cases). See also Young, 97 N.J.L. at 505, 117 A. 713.
For example, in Zimmerman v. State, 750 S.W.2d 194, 197 (Tex. Crim. App. 1988), incriminating letters written by defendant husband were found by his mother-in-law in her daughter‘s dresser drawer, were surreptitiously read, and were obtained without the recipient‘s knowledge or consent. The Texas court declined to follow an earlier Texas rule that the privilege accorded such a document could not be defeated by a change of hands, whatever the circumstances. Id. at 200. Rather, it held that where the change of hands is inadvertent and without the consent or connivance of the addressee spouse, the third party may testify to the communication. Ibid. See State v. Myers, 230 Kan. 697, 640 P.2d 1245, 1248-49 (1982).
Courts that have denied loss of the privilege, no matter what the circumstances, have viewed the privilege as attached to the document. Miller, supra, Applicability of Marital Privileges, 32 A.L.R. 4th at 1180-84 (citing e.g., McKie v. State, 165 Ga. 210, 140 S.E. 625 (1927) (letters written by defendant wife to her husband and retrieved from his safety deposit box after his
We, thus, conclude that under the circumstances here, the spousal privilege does not apply to defendant‘s letter.
III.
Referred to as the priest-penitent privilege, Evid.R. 29,
Subject to Rule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counselling role.
The critical issue is whether this privilege is held by the clergyperson alone who may, therefore, alone waive it pursuant to Evid.R. 37,
The short answer is that the express language of Evid.R. 29,
The priest-penitent privilege was not recognized at common law and did not exist in this State until 1947. State v. Morehous, 97 N.J.L. 285, 295, 117 A. 296 (E. & A. 1922). By Act of June 20, 1947, L. 1947, c. 324 the Legislature enacted N.J.S. 2A:81-9 which provided:
A clergyman, or other minister of any religion, shall not be allowed or compelled to disclose in any court, or to any public officer, a confession made to him in his professional character, or as a spiritual advisor, or as a spiritual advisor in the course of discipline enjoined by the rules or practice of the religious body to which he belongs or of the religion which he professes.
In the 1950‘s a revision of the rules of evidence then existing in New Jersey was considered, first by the Committee on the Revision of the Law of Evidence (Jacobs Committee), appointed by the Supreme Court in 1954, and then by the Commission to
The Jacobs Committee and Bigelow Commission studied a reform of New Jersey‘s rules of evidence within the context of considerable evaluation and revision during the 1920‘s and 1930‘s of rules of evidence nationwide. In the early 1940‘s, the American Law Institute adopted the Model Code of Evidence. See generally Mason Ladd, A Modern Code of Evidence, in Model Code of Evidence 329-55 (A.L.I. 1942). Though referred to as a better approach to the “irrational” rules of evidence that then existed in New Jersey, In re Petagno, 24 N.J. Misc. 279, 286, 48 A.2d 909 (Ch. 1946); Robertson v. Hackensack Trust Co., 1 N.J. 304, 320, 63 A.2d 515 (1949) (Vanderbilt, C.J., concurring), the Model Code was not universally adopted and never officially adopted in New Jersey.
In 1949 the American Law Institute referred the Model Code of Evidence to the National Conference of Commissioners on Uniform State Laws to be “modified in such respects as will express a common ground of acceptability in the jurisdictions and by the tribunals which the rules are expected to serve.” Uniform Rules of Evidence, Preface, at 161 (1953). The Uniform Rules of Evidence were adopted by the National Conference and the American Bar Association in 1953. They became a base for the Jacobs Committee‘s report. See generally Report of the Committee on the Revision on the Law of Evidence to the New Jersey Supreme Court v-x (1955) (Jacobs Committee Report).
Critical to the Committee‘s consideration of the priest-penitent privilege, the pertinent Uniform Rule of Evidence, Rule 29, provided:
(1) As used in this rule, (a) “priest” means a priest, clergyman, minister of the gospel or other officer of a church or of a religious denomination or organization, who in the course of its discipline or practice is authorized or accustomed to hear, and has a duty to keep secret, penitential communications made by members of his church, denomination or organization; (b) “penitent”
means a member of a church or religious denomination or organization who has made a penitential communication to a priest thereof; (c) “penitential communication” means a confession of culpable conduct made secretly and in confidence by a penitent to a priest in the course of discipline or practice of the church or religious denomination or organization of which the penitent is a member. (2) A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he claims the privilege and the judge finds that (a) the communication was a penitential communication and (b) the witness is the penitent or the priest, and (c) the claimant is the penitent, or the priest making the claim on behalf of an absent penitent.
The Drafters’ Comment to the Uniform Rule states in part: “[t]his rule permits either priest, broadly defined, or penitent to claim the privilege.” Jacobs Committee Report, at 76.
The Committee recommended that the Uniform Rule be rejected and that N.J.S. 2A:81-9 be adopted verbatim as a court rule. The Committee Annotations expressly recognized that one of the differences between the Uniform Rule and the then existing statute was that “[u]nder the rule the privilege belongs to the penitent, and he can waive it by a partial disclosure to any one, or waive it in other ways, thereby compelling the priest to testify.... Under the rule the penitent has a privilege to refuse to disclose his confession whereas under the statute he has no privilege at all.” Jacobs Committee Report, at 77. The Committee thus understood the statute, unlike the broader approach of the Uniform Rule, to confer the privilege upon the priest and not the penitent. Since the privilege was that of the priest under the statute, it did not, unlike the Uniform Rule, confer upon anyone else the right to waive the privilege or consent to disclosure.
The Uniform Rule was rejected as well by the Bigelow Commission. It recommended the following:
Subject to Rule 37, a clergyman, or other minister of any religion, shall not be allowed or compelled to disclose in court, or to a public officer, a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.
[Report of the Commission to Study the Improvement of the Law of Evidence 38 (1956) (Bigelow Commission Report)].
This Commission has adopted the Court Committee Draft to a large extent. The Court Committee recommended adoption of N.J.S. 2A:81-9 verbatim. This Commission had added confidential communications, which might not qualify as confessions but which should be privileged.
[Bigelow Commission Report, at 38].
No reference was made to the reference to Evid.R. 37.
Facially then,
Examination of other states’ priest-penitent privilege is instructive. Almost every jurisdiction recognizes the privilege in some form, usually by statute.7 The various forms the privilege
On the other hand, Georgia, Illinois, Indiana, Maryland, Michigan, Missouri, Vermont, Virginia and Wyoming confer the privilege solely upon the clergyperson. None provide for disclosure or nondisclosure at the behest of the penitent either by
Where a state has expressly provided for the penitent‘s consent, such as Arizona and New York, it has been held the privilege belongs to the penitent. See Church of Jesus Christ of Latter-Day Saints v. Superior Court of Arizona, 159 Ariz. 24, 764 P.2d 759, 763 (Ct.App. 1988); De‘udy v. De‘udy, 130 Misc.2d 168, 495 N.Y.S.2d 616, 619 (Sup.Ct. 1985). On the other hand, both Virginia‘s and Missouri‘s statutes, which do not refer to the penitent,9 have been construed to confer the privilege solely upon the clergyperson. Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413, 415-16 (4th Cir.1984) (construing the Virginia statute); Eckmann v. Board of Educ. of Hawthorn School District No. 17, 106 F.R.D. 70, 72-73 (E.D.Mo. 1985) (construing the Missouri statute).
In construing the “plain meaning” of Virginia‘s statute as granting the privilege only to the clergyperson and not the penitent, the court of appeals in Seidman said:
The priest-penitent or clergyman-communicant privilege has no firm foundation in common law. See 8 Wigmore, Evidence § 2394 (McNaughton rev. 1961). The privilege, in modern practice, traces its existence to state statute or, in very rare cases, to state decisional law, id. § 2395, and is generally acknowledged to offer very narrow protection to the claiming witness. See, e.g., Reese, Confidential Communications to the Clergy, 24 Ohio St.L.J. 1 (1963). Statutes creating the privilege vary, but generally are designed to safeguard the clergyman‘s status as a secure repository for the confessant‘s confidences. Id. Most penitent-priest statutes have a common feature: they explicitly prohibit the clergyman from disclosing the contents of a confidential communication “without the consent of the person making the communication,” Ore.Evid.Code, Rule 506 (1981); In re Williams, 269 N.C. 68, 152 S.E.2d 317, 324 (1967); see also Reese, Confidential Communications to the Clergy, supra. Significantly, the Virginia statute contains no such prohibition; it simply says that “no regular minister, priest, rabbi or accredited practitioner .. . shall be required to disclose any information” entrusted to him in a confidential conversation. This language plainly invests the priest with the privilege and leaves it to his conscience to decide when disclosure is appropriate. The priest in the present case did not invoke the privilege, but testified freely in a pretrial deposition about his conversation with Mrs. Seidman. Since the privilege was his alone to claim, Mrs. Seidman has no standing to object to the introduction of the priest‘s deposition into evidence or its use during cross-examination. [Seidman, 724 F.2d at 415-16, footnote omitted].
In so holding, the court further observed “[t]his interpretation... is further buttressed by referring to other provisions of the Virginia Code relating to testimonial privileges.... The Virginia legislature included provisions in these statutes which allow communicants to require testimony concerning confidential disclosures to doctors or psychologists [by consent]. The Legislature‘s omission of a similar provision from the priest-penitent statute strongly indicates that the clergyman‘s privilege cannot be affected by the communicant.” Id. at 416 n. 2.
We think this analysis is apposite to New Jersey‘s statute and rule. Unlike the majority of states and unlike the Uniform Rule, New Jersey‘s statute and rule contains no express provision for consent or waiver by the penitent. Where the Legislature and the Supreme Court intended to confer the right to consent to disclosure or waive a privilege upon a particular person, they have done so expressly. See Evid.R. 23,
Based, then, upon the plain language of Evid.R. 29,
The trial judge‘s ruling that neither Evid.R. 23,
ARNOLD M. STEIN, J.A.D., dissenting.
Craig Szemple sent his wife a letter in which he informed her, in confidence and with obvious satisfaction, that he had killed the man for whose murder he was awaiting trial. He also confided to a minister that he had killed not just one, but three people. Szemple‘s father-in-law stole the letter from a carton containing his daughter‘s personal belongings, read it without his daughter‘s knowledge and eventually reported its contents to a lawyer, then to the police. The minister first told members of Szemple‘s family about the triple-murder confession, then reported the confession to the police.
Those who seek and sometimes obtain the benefit of testimonial or confidential communication privileges are usually not
I would exclude the contents of the purloined letter from evidence because it is protected by the spousal privilege against disclosure of confidential communications. I would also bar the testimony of the minister to whom Szemple gave incriminating statements because I believe that both the declarant and the clergy member are holders of the priest-penitent privilege.
I. The Priest-Penitent Privilege.
A lot of people will be surprised by the majority‘s holding that the clergy member is the exclusive possessor of the priest-penitent privilege. It will surely come as news to many that matters confided in private to a clergy member have all the security of things said to the bartender at the local corner tavern.
I doubt that people who confess such things as criminal conduct or marital infidelity expect that the clergy-recipient can, at his or her whim, reveal the confidence to others: police, family members, for that matter anyone to whom the clergy member desires.
The priest-penitent privilege exists to accommodate the need for confidence and trust in clergy-penitent relationships. As the United States Supreme Court pointed out in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980):
The priest-penitent privilege recognizes 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.
That is the popular notion of the purpose and scope of the privilege. It is designed to protect and preserve the confidential relationship between clergy and penitent. It is, I submit, a
Subject to Rule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counselling role.
[N.J.S.A. 2A:84A-23 , Evid.R. 29.]
That language is straightforward. It can only mean that the clergy member cannot be compelled to reveal the confessions of the penitent, or be allowed to reveal those confidences without waiver of the privilege by the penitent pursuant to
The majority says that the use of the word “allow”
may as well refer to the court and/or State “allowing” a clergyperson to breach his or her vow of confidentiality by considering such person a competent witness to disclose a confidential communication.
[Ante at 107, 622 A.2d at 252.]
The majority suggests that “allow” might be jurisdictional, conferring statutory authority upon the State or a court to permit testimony by the privilege holder. I see no reason for the State or a court “allowing” testimony by a privilege holder who voluntarily surrenders that privilege, because except as provided by the Rules of Evidence or by statute, every person is qualified to be a witness. Evid.R. 7(a). The majority‘s reasoning provides a long explanation for the use of “allowed,” where its plain meaning is to prohibit testimony by a clergy member about confidential matters without the approval of the penitent.
Moreover, I dispute the majority‘s analysis of the historical development of the priest-penitent privilege to support the contention that the clergy members are the exclusive holders of the privilege. I find nothing to support that proposition in either the 1955 Jacobs Committee report or in the 1956 Bigelow Commission report, which substantially adopted the Jacobs Committee‘s recommendations.
The Jacobs Committee report recommended against adopting proposed Uniform Rule 29 because it concluded that that provision reposed the privilege solely in the penitent, thereby compelling the clergy member to testify at the bidding of the penitent, presumably even in violation of the clergy member‘s wishes or religious beliefs. New Jersey Comm. on the Revision of the Law of Evidence, Report of the Comm. on the Revision of the Law of Evidence to the Supreme Court of N.J. 77 (1955). The Committee recommended continuation of the priest-penitent privilege set forth in N.J.S.A. 2A:81-9, the statute in effect when the Committee‘s report was filed:
A Clergymen, or the minister of any religion, shall not be allowed or compelled to disclose in any court, or to any public officer, a confession made to him in his professional character, or as a spiritual advisor, or as a spiritual advisor in the course of discipline enjoined by the rules or practice of the religious body to which he belongs or of the religion which he professes.
[Id. at 76.]
That statute, with little substantive change, was incorporated in our Rules of Evidence as
The majority‘s historical analysis does not account for the Legislature‘s decision to expand confidentiality to situations where the clergy member acts as a family counselor.
All fifty states now recognize the priest-penitent privilege. Some states make the penitent the exclusive holder of the privilege. Other states confer the privilege upon both the clergy member and the penitent. Only nine states make the clergy member the sole repository of the privilege. Ante at 112-115, 622 A.2d at 255-257. We should not torture the language of our priest-penitent rule to place us with the small minority of states which confer the status of potential informant on a clergy member who is sought out by the confessor as a source of spiritual guidance and trust.
Finally, I attach no significance to the non-inclusion in Evid.R. 29 of a specific provision for express consent or waiver by the penitent. The statutory priest-penitent privilege has been around in substantially similar form for over thirty-five
II. The Marital Communication Privilege
This case is not about eavesdropping on a conversation between a husband and wife pursuant to a lawfully obtained order permitting wiretapping, such as in State v. Sidoti, 134 N.J. Super. 426, 430-31, 341 A.2d 670 (App.Div. 1975).
Nor does it involve the contents of a letter dictated by a husband to a third person for delivery to the wife, as in State v. Young, 97 N.J.L. 501, 504-05, 117 A. 713 (E. & A. 1922). There the Court of Errors and Appeals held that “[t]o commit the communication to a third person to be transmitted to the wife, whether orally or in writing, destroys the element of confidence....” Id. at 505, 117 A. 713. And it does not involve the negligent abandonment of a confidential document by the receiving spouse and its discovery by a third person, as in State v. Myers, 230 Kan. 697, 700-03, 640 P.2d 1245, 1248-49 (1982). There the incriminating document was found under a mattress three months after the wife moved away. The Kansas Supreme Court permitted the third party discoverer of the document to testify as to its contents, holding:
[W]here a written confidential communication between husband and wife falls into the hands of a third party inadvertently and without the consent or connivance of the addressee-spouse, the third party should be permitted to testify as to the communication.
[Id. 640 P.2d at 1248.]
Thomas Boyle‘s acquisition of the letter addressed to his daughter was not accidental. The letter was not lying about in some place where a casual observer could see it, pick it up and
The majority relies on Zimmerman v. State, 750 S.W.2d 194 (Tex. Crim. App. 1988), a case with similar, although hardly identical facts. While awaiting trial for murder, defendant wrote his wife a letter from jail, confessing that he stabbed and killed the victim. Defendant‘s letters, which were kept in his wife‘s dresser drawer, were secretly read by her mother. Id. at 197. The Texas court, relying on State v. Myers, supra, ruled that the mother could testify as to the letter‘s contents because it was obtained “inadvertently.” 750 S.W.2d at 200-01. This was a misapplication of Myers. “Inadvertent” means heedless, negligent, inattentive or unintentional. Webster‘s Third New International Dictionary 1140 (1981). The letter in Zimmerman and the letter in this case came into the hands of the third party not through serendipity but as a result of snooping in a place of privacy.
Moreover, Zimmerman is factually distinguishable because defendant‘s letter was not intended to be a private communication. The letter concluded: “Don‘t hide this letter because the lawyers and doctors are going to know it all. I‘m going to tell them everything.” Zimmerman, 750 S.W.2d at 201.
I recognize that the spousal testimony and confidential communications privileges are regarded by our courts with disfavor because they have a potential to suppress the truth. State v. Briley, 53 N.J. 498, 505-06, 251 A.2d 442 (1969). Nevertheless, these legislatively-enacted and court-approved privileges exist because “they are regarded as serving a more important public interest than the need for full disclosure.” Id. at 506, 251 A.2d 442. Whether we like them or not, see State v. Ospina, 239 N.J. Super. 645, 649-52, 571 A.2d 1373 (App.Div.), certif. denied,
In State v. J.G., 261 N.J. Super. 409, 413, 619 A.2d 232 (App.Div. 1993), we held that inadvertent disclosure of the confidential contents of a Family Service file did not constitute a waiver of the victim-counsellor privilege,
Notes
Evid.R. 37,
A person waives his right or privilege to refuse to disclose or prevent another from disclosing a specified matter if he or any other person while the holder thereof has ... (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.
There is no question here but that Bischoff effectively waived the privilege. The issue is whether he could do so without the consent of defendant.
The rejection of the contrary approach of the Uniform Rule may have been prompted by a concern over the resulting ability of a penitent to manipulated his or her power of claiming or waiving the privilege. As described by one commentator, the potential for manipulation is not insignificant:
Statements in confessions could be inaccurate, and could be intended to mislead, if an unscrupulous confessant thought the statements could be used later in a trial. Due to the belief in the usual truthfulness of facts told during the confession, the testimony of a clergyman concerning the confession might be given too much weight in reaching a finding. Suppose that in a state where there is no privilege, two men, Mr. Badd and Mr. Worse, plan to hold up a small store in a residential neighborhood. Badd pleads with Worse not to take a pistol along, but to no avail. In the hold-up, Worse shoots the old storekeeper. Thereafter, Worse goes to confession and, instead of submitting to the priest his murder of the old man, confesses that he drove the car to the holdup scene and, although he pleaded with Badd not to kill the man, Badd nevertheless did it, and then Worse drove him away from the scene. This confession and admission of guilt to being an accessory before and after the fact, made as a means of shifting the blame for the actual murder from himself to Badd, might be rather potent evidence.
....
The waiver privilege could also be the instrument of abuse by a scheming, wilful, and debased person. He could confess a number of different versions to a number of different priests and then waive the privilege for the one who best suited his purpose but not waive it for the priests who would not serve his purpose.
[Seward P. Reese, Confidential Communications to the Clergy, 24 Ohio St.L.J. 55, 82-85 (1963)].
The rejection may also have been prompted by a view that the privilege was a product of the clergyperson‘s free exercise of religion and a desire to protect that clergyperson‘s religious tenets. 1 McCormick on Evidence § 76.2 (Strong ed., 4th ed. 1992). See generally Mary H. Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn.L.Rev. 723, 760-77 (1977) (discussing generally various rationales for the privilege).
The following persons shall be incompetent to testify:
* * * * * * * *
(4) Any person practicing as a minister of the gospel, priest, rabbi or other person serving in a similar capacity for any organized religion, concerning a communication made to him in his professional capacity as a spiritual advisor, confessor, counselor or comforter....
No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, of any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.