§505 Communications to Clergy

• Library: Evidence Restated Deskbook (2021 Ed.)

§505 Communications to Clergy

General rule of privilege. A person practicing as a minister of the gospel, priest, rabbi, or other person serving in a similar capacity for any organized religion is incompetent to testify concerning a confidential communication made to him or her in his or her professional capacity as a spiritual advisor, confessor, counselor, or comforter.

Notes

Privilege not known at common law; purpose

"At common law there was no privilege as to a communication or confession to a clergyman. 97 C.J.S. Witness s 263. The tendency of the courts is toward a strict construction of statutes such as § 491.060, supra. 81 Am.Jur.2d Witnesses s 284." State v. Kurtz, 564 S.W.2d 856, 859 (Mo. banc 1978); see also State v. Gerhart, 129 S.W.3d 893, 898 (Mo. App. W.D. 2004) ("Statutes creating 'testimonial privileges are to be strictly construed against the privilege.'") (quoting Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61–62 (Mo. banc 1999)).

Section 491.060(4), RSMo 2016, contains 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 or her in his or her professional capacity as a spiritual advisor, confessor, counselor or comforter.

The privilege is intended "to encourage an effective relationship between the spiritual advisor and the communicant." Hester v. Barnett, 723 S.W.2d 544, 554 (Mo. App. W.D. 1987).

The application of the statute requires the trial court to engage in a two step analysis: (1) the trial court must first determine whether the individual from whom the testimony is sought is a minister, priest, rabbi or other person serving in a similar capacity for an organized religion; and (2) the court must then decide whether the communication made to them fell within the context of their professional duties as a "spiritual advisor, confessor, counselor or comforter." § 491.060(4).

Gerhart, 129 S.W.3d at 898.

"The circumstances, facts and interests of justice dictate whether a privilege set forth in § 491.060 is applicable to a particular situation." Id. (citing State ex rel. Health Midwest Dev. Grp., Inc. v. Daugherty, 965 S.W.2d 841, 844 (Mo. banc 1998)).

Burden of proof

"The party seeking to invoke a privilege set forth in § 491.060 bears the burden of proving its applicability." State v. Gerhart, 129 S.W.3d 893, 898 (Mo...