The Jersey Lawyer

The New Jersey Supreme Court recently held in the case of State v. J.B. that the “cleric-penitent” privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric’s professional character or role as a spiritual advisor.  This case illustrates that a New Jersey criminal defense lawyer has to examine all possible defenses in a case, and then be persistent in applying those defenses.

In this case, the defendant’s wife contacted pastor Glenford Brown and told him that her daughters had told her that their father was sexually abusing them.  The pastor contacted defendant to discuss the allegations.  The defendant was not a member of the pastor’s congregation; however, his wife and two daughters were members.  Pastor Brown met with defendant in a public park behind the pastor’s house, and spoke in private with no one else present.  During the conversation, defendant did not admit the allegations directly; however, he asked the pastor to “help” and “counsel” him.  When the pastor refused to help defendant directly and offered to contact organizations that could help defendant, the defendant refused “because he thought [pastor Brown] would have to explain” to others what defendant had done, and then he would “end up in jail.”   During the conversation, defendant also asked the pastor to baptize him, but the pastor refused.

Defendant was indicted on four counts of first-degree aggravated sexual assault in violation of N.J.S. 2C:14-2, three counts of second-degree sexual assault in violation of N.J.S. 2C:14-2, two counts of third-degree aggravated criminal sexual contact in violation of N.J.S. 2C:14-3, one count of fourth-degree criminal sexual contact in violation of N.J.S. 2C:14-3, and two counts of second-degree endangering the welfare of a child in violation of N.J.S. 2C:24-4.  The State wanted to use the statements made by defendant to the pastor as evidence against him during the trial of the matter.  A pre-trial evidentiary hearing was held and the trial court determined that the statements made by defendant to the pastor were privileged under the cleric-penitent privilege.  The State appealed and the Appellate Division reversed and held that the statements were not privileged.  The defendant appealed to the New Jersey Supreme Court, which held that the statements were privileged.

In coming to the conclusion that the statements were privileged, the New Jersey Supreme Court first traced the history of the privilege to the Catholic seal of confession.  Under the Code of Canon Law of the Roman Catholic Church, it was a crime for a priest to break the seal of confession by revealing confidential information, punishable by excommunication.  New Jersey first recognized the privilege in 1947, when it enacted a statute protecting confessions that would be protected under the laws and practices of the religious body.  The privilege as a secular statutory matter was rooted in the need for confidence and trust between a cleric and a penitent and the underlying public interest in fostering that relationship.

After undergoing several revisions, the current version of the cleric-penitent privilege was codified as New Jersey Rule of Evidence 511 and N.J.S. 2A:84A-23, which provides: “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.  As used in this section, ‘cleric’ means a priest, rabbi, minister or other person or practitioner authorized to perform similar functions of any religion.  The privilege accorded to communications under this rule shall belong to both the cleric and the person or persons making the communication and shall be subject to waiver only under the following circumstances: (1) both the person or persons making the communication and the cleric consent to the waiver of the privilege; or (2) the privileged communication pertains to a future criminal act, in which case, the cleric alone may, but is not required to, waive the privilege.”

Thus, the Supreme Court reasoned that there are three basic criteria for excluding a statement under the cleric-penitent privilege: the communication was made (1) in confidence, (2) to a cleric, (3) in the cleric’s professional character or role as a spiritual advisor.  In examining whether these three criteria apply, trial courts should use an objective standard, and ask whether, under the totality of the circumstances, a reasonable penitent would believe that a communication was made in confidence to a cleric in that cleric’s professional character or role as a spiritual advisor.  The Supreme Court concluded that, based on the facts in the record in this case, the privilege should apply and the statements made by the defendant to the pastor should be excluded at trial.

This case illustrates that simple concepts can often result in long legal battles involving multiple levels of our court system.  It is important for a New Jersey criminal defense lawyer to consider all of the facts in a case in order to make reasoned legal arguments, to raise valid and important defenses, and to exclude from evidence damaging statements such as the ones made in this case if those statements are protected by privilege.