U.S. v. Shelton, 64 M.J. 32

Core Criminal Law Subjects: Evidence: Privileges › Communications to clergy

1. the clergy privilege in MRE 503 allows an accused to prevent another from disclosing a confidential communication by the accused 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
2. the clergy privilege reflects respect for the traditional confidential nature of relations between clergy and servicemembers
3. MRE 503(a) expressly recognizes a clergy privilege and provides that 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; MRE 503(c) broadly extends the privilege to allow either the communicant or the clergy member to claim the privilege
4. MRE 503 has three components pertinent to whether an accused has established the criteria necessary to claim the privilege: (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 or to his assistant in his official capacity; and (3) the communication must be intended to be confidential
5. appellant’s communication with his minister was a matter of conscience, thus satisfying the threshold for claiming the clergy privilege, where the minister used the authority of his religion to induce appellant to confess
6. appellant’s communication with his minister was made to a clergyman in his capacity as a spiritual advisor, thus satisfying the second requirement of the clergy privilege, where appellant attended the minister’s church for two years, recognized him as his pastor, and talked to him at the church in his capacity as a clergyman; in addition, the minister began the counseling session during which appellant confessed with prayer, the session occurred at the church, and the session had a religious atmosphere
7. appellant’s communication with his minister was intended to be confidential, thus satisfying the third prong for claiming the clergy privilege, where appellant testified that he intended that the conversation remain confidential and that he did not want his wife to know what he revealed to his minister
8. the presence of appellant’s wife during part of appellant’s counseling session with his minister did not preclude his invocation of the clergy privilege where the minister told appellant that it was important for his wife to be present for his redemption; as is the case with the attorney-client privilege, the presence of third parties, which is essential to and in furtherance of the communication, does not vitiate the clergy-communicant privilege
9. the clergy privilege is preserved where there is a relationship by blood or marriage as well as a commonality of interest between the accused and the third party present during the privileged communications; both these factors were present in this case as the third party present was appellant’s wife who had played the pivotal role of sending appellant to see his minister in the first instance
10. in this case, the record establishes the three-prong evidentiary foundation for the clergy privilege; appellant communicated his guilt to his minister, appellant’s communication was made as a matter of conscience, and appellant intended their communication to remain confidential; because MRE 503 grants appellant a right to keep this privileged conversation confidential, the military judge abused his discretion by ruling that appellant’s statements to his pastor were not privileged and would be otherwise admissible evidence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Clergy Privilege

1. when an accused is attempting to claim the clergy privilege, he has the burden of establishing that his conversation was privileged under MRE 503

Trial Stages: Merits: Pleas, generally

1. RCM 910(a)(2) permits an accused to enter a conditional plea of guilty, which reserves the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion; it also states that if an accused prevails on further review or appeal, he shall be allowed to withdraw the plea of guilty; RCM 910(a)(2) preserves and protects appellant’s right to make the government prove its case with admissible evidence

Trial Stages: Appeals: Remedies › Generally

1. the only appropriate remedy available to address the military judge’s erroneous evidentiary ruling in the context of a conditional guilty plea that reserved to appellant the right to appeal his pretrial motion to suppress and to withdraw his guilty plea if successful on appeal was to allow appellant to withdraw his guilty plea

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in evaluating whether appellant has established the three criteria necessary to claim the clergy privilege, the focus of an appellate court is the ruling of the military judge; when CAAF reviews a decision of a court of criminal appeals on a military judge’s ruling on the clergy privilege, it typically pierces through that intermediate level, examines the military judge’s ruling, and then decides whether the court of criminal appeals was right or wrong in its examination of the military judge’s ruling
2. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion
3. whether a communication is privileged is a mixed question of fact and law; an appellate court will give the military judge’s findings of fact deference, reversing such findings only if they are clearly erroneous, while it reviews the legal conclusions de novo