Rule 503. Communications to Clergy

  1. military defense lawyers401This privilege protects communications made as a formal act of religion or conscience. The privilege may be claimed by the penitent or in the absence of contrary evidence, by the clergyman or his/her assistant. United States v. Napoleon, 46 M.J. 279 (1997). For privilege to apply, the communication must:
    be made either as a formal act of religion or as matter of conscience; be made to a clergyman in his or her capacity as a spiritual advisor or to a clergyman’s assistant in his or her capacity as an assistant to a spiritual advisor; and be intended to be confidential. Note that the privilege was amended in 2007 to include communications made to a clergyman’s assistant. “A ‘clergyman’s assistant’ is a person employed by or assigned to assist a clergyman in his
    capacity as a spiritual advisor.”
  2. United States v. Benner, 57 MJ 210 (2002). The CAAF reversed the case,
    holding that when a chaplain meets with a penitent, Rule 503 allows the
    disclosing person to prevent the chaplain from disclosing the contents of the
    statement when it was made as a formal act of religion or as a matter of
    conscience. In this case the chaplain spoke with the accused and then informed
    him that army regulations would force the chaplain to disclose the confession of
    the accused. That was an erroneous statement of the Army’s regulation governing
    chaplains. Based upon statements made by the chaplain the accused then made
    an involuntary confession to CID agents after the chaplain took him to the MP
    station. The CAAF held that the confession was involuntary, and under a totality
    of the circumstances test could not be deemed admissible.
  3. In United States v. Shelton, 64 M.J. 32 (C.A.A.F. 2006), the CAAF held that
    communications made to a civilian minister acting as a marital counselor were
    covered by the attorney-client privilege.

United States v. Benner

In United States v. Shelton, 64 M.J. 32 (C.A.A.F. 2006)