Corrupt Hive

In stecore invenitur

Ministerial Exception Redux

with 6 comments

This post at Grits for Breakfast and this one at EvidenceProf blog regarding this decision by the Texas Court of Appeals shows once again how little is understood about the ministerial exception. I actually agree with the court’s ruling in this case but that’s because I don’t agree at all with Grits or Colin’s understanding of its ruling.

Under the Texas Rules of Evidence Section 505 the ministerial exception applies only when it is given to a person in their “professional character as a spiritual adviser” and with the intention of that communication being confidential. Unlike the case I blogged about below, this decision turns not on whether the person was acting in the capacity of a spiritual adviser but whether the penitent intended to keep the communication private. There is no dispute that the people who he confessed to were individuals in their professional characters as spiritual advisers.

Despite the claim by the penitent that he did intend to keep the communication private, the trial court found this statement to be implausible and thus found it not credible, and thus ruled that the confession was admissible. The interesting part of this ruling was the basis for finding the penitent’s claim implausible. The court, correctly in my opinion, looked at the context of the statement. The decisive factors for the trial court was that the particular denomination the defendant belonged to had (a) no doctrinal basis for private confession (2) no history of keeping confessions private and (3) all the people at the confession themselves stated that they understood the statement to be public. Using this contextual background, the judge ruled that the defendant could not have reasonably expected the statement to be private.

Grits writes that he disagrees with the ruling because the court engages in doctrinal interpretation, which the words of the rules of evidence do not expressly allow. Yet the rules clearly allow the court to determine if the statement is in fact confidential. The rules of evidence clearly state that a statement falls under the ministerial exception only if it is “intended to be confidential”. The word “intended” is clearly a word that is judicially interpretable; it foresees the possibility that not all communication is in fact confidential and requires the court to make a judgment. Moreover, the court in this case is not merely assessing whether or not the penitent intended to keep that communication private, the crux is whether his claim that he did so intend is credible. It seems to me that in attempting to determine whether a statement is in fact credible, the court must look to the context in which the statement is made. It seems to me quite natural to look at the factors the trial judge did in order to make that determination.

Perhaps as a policy matter it would be better to draw bright line, but the rules of evidence simply do not do that. If the only factor a judge has to look at is communicant’s verbal statement regarding the intention of their mind at the moment the words were spoken, the rules of evidence have been eviscerated. There is no need for a confidentiality requirement because all communications would be confidential. And that simply is not the what the rules say.

This is also what Colin misses in his musing. The court is not making a doctrinal judgment about a specific religion in abstract. The judge is doing so in an attempt to decide if the sworn statements of the defendant are credible. He is looking at the context in which the remarks are spoken. This is no different than if someone where to invoke a confidentially clause with their psychologist even though the words were spoken at a party, while the psychologist was drunk, and fifteen people were listening in. It is simply not a credible statement to any reasonable person to assume that such statements are, or should be, treated with the same dignity or solemnity as words spoken in a church under the seal of a confessional.

In writing all of this it shouldn’t be assumed that I was particularly happy with this part of the ruling.  In fact, I thought that in making the determination of whether the defendants statements were incredible the trial court could have done a lot more and have developed a more complete record. Indeed, it’s not even clear to me whether the trial court did in fact address the credibility of the statements directly or whether the appeals court is engaging in post hoc reasoning.  But I agree with the appeals court that either way there is enough evidence on the record to support such a conclusion and therefore I cannot say he abused his discretion.


Written by Daniel

September 8, 2008 at 5:11 pm

Posted in Uncategorized

6 Responses

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  1. But the question of whether communications were “intended” to be confidential focuses on the intent of the Defendant, not the doctrines of the church. That’s the part I consider a misinterpretation. If elders are spiritual advisors under Rule 505, and I think they are, I don’t see any justification under the rule for further interpreting church doctrine.

    To my knowledge, no Protestant sect has either a doctrine or practice of secret confessions. This ruling means there’s no clergy-communicant privilege for those denominations, right? Doesn’t that turn the historical use of this rule on its head?

    I agree the bigger context may mitigate against it in this case, particularly the fact that others did not perceive the COMMUNICANT’s intent to keep communications secret. But I strongly disagree the court had ANY business interpreting church doctrine in this case. That’s unprecedented in interpreting Rule 505.


    September 9, 2008 at 4:31 am

  2. While it is true that the court is interpreting church doctrine it is doing so only for the narrow purpose of evaluating the communicant’s credibility and doing so only as part of a constellation of factors. I would be troubled if this was the only factor the court relied on in evaluating credibility, or if the court were interpreting church doctrine for some broader purpose (such as establishing that no Church of Christ member has a right to claim a ministerial exception). But the court is doing neither of those two things and it’s holding is very narrow to this specific case. I don’t see any precedential value here whatsoever other than that church doctrine can be one factor among many that a court could possibly look at when trying to establish a communicant’s credibility under the confidentiality prong of the ministerial exception. And far from troubling me, that seems quite a natural thing to do.


    September 9, 2008 at 8:37 am

  3. If as you say, “church doctrine can be one factor among many that a court could possibly look at when trying to establish a communicant’s credibility,” then you’re opening the door to eliminating clergy-communicant privilege across the board for Protestant denominations.

    The court could have made a ruling that was “very narrow to this specific case,” but instead they chose to make new law in an expressly activist ruling. They could have focused on the fact that the D didn’t request confidentiality, others didn’t think it was expected, etc., and reached the same legal conclusion. However by going beyond the intentions of the communicant and interpreting church doctrine, which has nothing to do with the D’s intent, they undertook an analysis that’s just not warranted anywhere in Rule 505 or prior court precedents. It may seem “natural” to you, but that doesn’t mean there’s legal justification for doing it or that it won’t have implications in other cases.


    September 9, 2008 at 9:26 am

  4. I honestly just don’t see how you get from A to B. I don’t see how the consideration of this one factor, so long as it is one factor among many, creates a danger of eliminating the privilege across the board for Protestants. That claim just seems overwrought.

    And while there may not be a specific judicial precedent for the inclusion of this one factor, it certainly is consistent with the text of the rule, so I don’t see what’s so activist about it or how the ruling creates new law. The question is very basic: did the trial judge abuse his discretion when he included this factor in his overall assessment of the defendant’s credibility? Given that the context was the ministerial exception, I can’t say that he did.

    It might be worthwhile for you to read the rules of evidence in other states on the ministerial exception. For example, New Mexico’s rule copies the Texas rule word for word. Other other hand, New Jersey rule is quite different than the rule in Texas. It only notes confidentiality in passing and specifically states that confessions to groups are confidential. If I had been deciding this case under the New Jersey’s rule, I probably would have went the other way; certainly the analysis would be more complicated. Yet a third take is in <a href=”“>California,where the rule specifically states that “no third person” can be privy to a confidential communication under the ministerial exception. Under this definition, the confession in the Texas case is clearly not confidential.


    September 9, 2008 at 10:14 am

  5. “I don’t see how the consideration of this one factor, so long as it is one factor among many, creates a danger of eliminating the privilege across the board for Protestants.”

    Because EVERY time you consider that factor it cuts the same way. There will never be a case involving a Protestant where the church has a secret confession, so by saying it can be a factor, it ensures there will be a viable argument mitigating against privilege in EVERY single case involving a Protestant communicant.

    Is that not right? What am I missing?


    September 9, 2008 at 11:56 am

  6. You are right, it would be the same if one were Buddhist or Hindu. Does this then subtly shift the burden of proof away from neutral and against a member of a non-confessional religion? Yes. But that result is consistent with the Texas rules as they are currently written. If there is a bias here, it is a bias written into the rules. Take a look at the rules in other states, they all have subtle biases written into them too; California’s is a lot more hostile to Protestants and other non-confessional religions than is Texas.

    You may not like the consequences of this ruling as a matter of policy. But the court is not going out on some crazy limb. In the context of what other states are doing in this area, it’s moderate. If you really dislike this ruling so much, it seems prudent to work to change the Texas rules of evidence; that’s what the political process is for.


    September 9, 2008 at 3:43 pm

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