Cox v. Miller: The Clergy Privilege and Alcoholics Anonymous

• Author: Stacey A. Garber
• Pages: 917-946

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Preface

The Southern District Court of New York granted Paul Cox's request for a writ of habeas corpus on the ground that the New York State court failed to extend the clergy privilege to his confessions made to fellow Alcoholics Anonymous (AA) members.¹ In July 2002, the Second Circuit Court reversed the Southern District of New York Court's decision by holding, "even were the Establishment Clause to require that some communications between AA members in some circumstances be protected under New York's cleric-congregant privilege, Cox's communications in issue here do not qualify for such protection."² The Second Circuit held that Cox failed to establish that his communications with fellow AA members were made in order to seek spiritual guidance, and thus did not qualify for New York's clergy privilege.³ Although AA has been treated as a traditional religion for Establishment Clause analysis, the Second Circuit refused to analyze whether AA should be treated as a traditional religion for clergy privilege analysis.⁴ This note analyzes the general question the Second Circuit Court did not: Should communications between members of Alcoholics Anonymous qualify for the clergy privilege?

I Introduction

Our justice system is based on the notion that a person is innocent until proven guilty.⁵ In order to ensure a fair and unprejudiced trial, the law of evidence sets limits on the information that can be admitted into a trial.⁶Historically, society has valued the trust and confidentiality of certain relationships enough to allow certain individuals the right to refuse to offer testifying at trial.⁷ This right is known as privilege.⁸ By balancing thePage 918 privacy rights of certain relationships against the interests of courts to adjudicate fairly, the federal court system has recognized only nine narrowly tailored privileges.⁹

The United States Supreme Court established the criteria to carefully examine requests for new or expanded testimonial privilege.¹⁰ These criteria include: 1) balance of the societal importance and support of confidentiality for certain relationships versus the possible harm to the trial discovery process, 2) review of the Utilitarian function certain confidential relationships play in modern society, and 3) the States' recognition of privilege or special treatment of certain confidential relationships.¹¹ This cautious approach for establishing new or extending current privileges has been supported by at least one legal scholar in this area.¹²

Privileges are only useful when they are certain.¹³ Overly numerous or broad privileges could lead to conditional privileges that must be judged on a case-by-case basis.¹⁴ The United States Supreme Court holds that conditional privileges are equivalent to no privilege at all.¹⁵

With the above preamble in mind, this article seeks to examine whether disclosures made in compliance with the Twelve Steps of Alcoholics Anonymous (AA) meet the criteria for privilege. The Second Circuit Court of New York recently ruled on this matter but failed to answer the general privilege question.¹⁶ Paul Cox, convicted of two counts of manslaughter, sought to overturn his conviction on the claim that evidence presented against him was gained solely from communications made during his participation in AA.¹⁷ Mr. Cox contended these disclosures should have been privileged and thus inadmissible in court.¹⁸

Two privileges could arguably be applied to AA disclosures, the clergy privilege or the psychotherapy privilege.¹⁹ Cox argued the philosophy of AA, which requires that a person confess to God and another person of thePage 919 nature of their wrongs, fits the scope of the clergy privilege.²⁰ Both New York state law and the federal judiciary have recognized a clergy privilege that protects confidential communications to a member of the clergy in his professional capacity as a spiritual advisor.²¹ The New York district court held that the New York clergy privilege is meant to protect all religious communications.²² In addition, the Second Circuit has held that AA is a religion for Establishment Clause purposes.²³ Relying on these holdings, Cox asked the Second Circuit to rule that his communications to fellow AA members, which he intended to keep confidential, be treated as communications to spiritual advisors and thus be exempt from compelled discovery.²⁴

For the following reasons, Cox's argument to protect AA communications is unfounded. First, the broad analysis and policy for the Establishment Clause holdings do not apply to a privilege argument.²⁵Second, AA disclosures fail the statutory and federal judiciary requirements for the clergy privilege.²⁶ Third, AA communications do not meet the criteria for extending a current privilege.²⁷ Fourth, granting privilege to AA members fails the necessary balancing tests and Utilitarian analyses.²⁸ For similar reasons, AA members do not warrant protection under the psychotherapy privilege either. The risk of over broadening privilege law would erode the authority of the judiciary to compel discovery and the current certainty of testimonial privilege. Cox's case did not meet the required burden for such extension.

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II Background

A Privileges Generally

The primary purpose of evidence law is to ensure accurate fact finding, and a fair trial.²⁹ Federal Rule of Evidence 401 states generally that all relevant evidence is admissible unless otherwise excluded by the constitution, statute or rule.³⁰ The law of privilege is one category of exclusions invoked to prohibit the admissibility and to protect certain information.³¹ The concept that the law should protect the communications of certain relationships comes from Roman law, where "the basis for exclusion (of testimony) was the general moral duty not to violate the underlying fidelity upon which the protected relationship was built."³² In early English law, honor among gentlemen gave rise to testimonial privilege.³³ In American law, Dean Wigmore, an expert on relationship-based privileges, proposed that there should be a limited number of privileges established by balancing the benefit of the relationship (e.g., attorney-client, psychotherapist-patient, clergy-penitent, etc.) and its fidelity against the possible harm or impairment of the litigants seeking information for their defense.³⁴ Privileges recognized at the state level are established by the state legislature or common law.³⁵

At the federal level, privileges are the product of common law.³⁶ In 1972, the Federal Rules of Evidence Advisory Committee and United States Supreme Court attempted to codify thirteen rules defining the evidentiary privileges applicable in federal courts.³⁷ After much debate, Congress rejected the Advisory Committee and Supreme Court's proposal and instead adopted a single rule stating that privileges should be continually created and modified by the federal courts in light of their reason and experience.³⁸ As a result, the federal courts have created ninePage 921 privileges.³⁹ Shapiro v. United States (proposed Rule 502) grants a privilege for required reports.⁴⁰ Fischer v. United States (proposed Rule 503) defines attorney-client privilege and protects confidential communications between a licensed attorney and client, conducted for the purpose of obtaining legal services.⁴¹ The Supreme Court in Jaffee v. Redmond (proposed Rule 504) recognized the psychotherapist-patient privilege.⁴² This privilege covers all statements made in confidence to a psychotherapist for the purpose of treatment.⁴³ Trammel v. United States (proposed Rule 505) outlines the marital privilege and allows a spouse called to testify to refuse to give testimony against the other spouse in criminal cases.⁴⁴ In re Grand Jury Investigation (proposed Rule 506) covers confessions between a penitent and clergy.⁴⁵ Other professional privileges (physician-patient, accountant-client, clergy-communicant) may exist in certain jurisdictions depending on case law, but have been declined recognition by the federal judiciary.⁴⁶ Political votes (proposed Rule 507) are privileged, although no case directly holds that it exists.⁴⁷ Intellectual property trade secrets (proposed Rule 508) are protected via Davis v. General Motors Corp.⁴⁸ United States v. Reynolds permits the federal government to hold a privilege (proposed Rule 509) to prohibit disclosurePage 922 of state secrets that may threaten national security.⁴⁹ McCray v. Illinois establishes protection for the identity of an informer (proposed Rule 510).⁵⁰Finally, the privilege against self-incrimination is set out in the Fifth Amendment of the United States Constitution.⁵¹ The rationale for this...