Duhaime's Law Dictionary

Priest and Penitent Privilege Definition:

A privilege suggesting the exclusion from evidence of matters discussed during a confession between a Roman Catholic priest and a penitent.

Related Terms: Client-Solicitor Privilege, Privilege, Husband-Wife Privilege

The 12th edition of Tapper on Evidence described the privilege as:

"... that of a Roman Catholic priest called upon to testify with regard to that which took pace in the confessional.

"The usual claim is that the privilege is that of the penitent, but it is sometimes said that it should belong to the priest alone...."

The jurist concludes that no such privilege exists in the United Kingdom.

In Broad v Pitt, Justice Best wrote that:

"The privilege does not apply to clergymen.

"I, for one, will never compel a clergyman to disclose communications made to him by a prisoner; but if he chooses to disclose them, I shall receive them."

Giuseppe Maria Crespi, 1712, ConfessionIn Normanshaw v Normanshaw and Measham, Justice Jeune faced an objection in a case where it was proposed to produce a priest to reveal what was said to him by a defendant in an adultery case. The priest objected but Justice Jeune left no doubt as to the state of the common law on the subject:

"(I)t was not to be supposed for a single moment that a clergyman had any right to withhold information from a court of law. It was a principle of our jurisprudence that justice should prevail, and no recognized privilege could be allowed to stand in the way of it."

Some jurisdictions do celebrate the sanctity of religious confessions such as Australia which has this statement at §127 of the 1995 Evidence Act:

"A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.... (This) does not apply if the communication involved in the religious confession was made for a criminal purpose...

"Religious confession means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned. "

In Jones v Attorney General, Justice Romilly of the British Columbia Supreme Court relied on R. v. Gruenke in holding:

"... the claim for religious privilege in this case has to be based on a case-by-case basis in which case the evidence, if otherwise admissible, is presumed to be inadmissible."

Writing in the Oregon Law Review (1997) , C. R. Streringer wrote:

"The statutes differ from state to state, primarily based on who may claim the privilege and who may be prevented from testifying. Statutes can vest the privilege with the penitent, the clergy member or both. Similarly, and partly dependent upon that dichotomy, the states differ as to which individuals may be prevented from testifying. Many states also provide that third parties may be prevented from testifying as to privileged communications of which they have knowledge."


Note: image is of Giuseppe Maria Crespi's 1712 painting, Confession.

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