Transcript Rules for Disclosing Privileged Communication

Privileged Communications
Slides prepared by: Brian J. Novak, Attorney-Advisor, Garrison-OSJA, for
presentation to Chaplain Unit Ministry Team Training, 19 August 2006.
Presentation today by: CH (MAJ) Joe Hughes, Family Life Chaplain
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References
 Military Rule of Evidence 503
 AR 165-1
 AR 608-18
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Purpose
Explain a person’s privilege to refuse to
disclose and to prevent another from
disclosing a confidential communication by
the person to a clergyman or to a
clergyman’s assistant.
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Agenda
 Privileged Communications
 Rules for disclosing Privileged
Communications
 Sensitive Communications
 Discussion Problems
 Interpretation of Right
 Supervisory Issues
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Privileged
Communications
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Privileged Communication -Definition
Privileged Communications. A privileged
communication is defined as any communication
to a chaplain or chaplain assistant given as a
formal act of religion or as a matter of
conscience, that is, any communication that is
made in confidence to a chaplain acting as a
spiritual advisor or to a chaplain
(Cont on next slide)
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Privileged Communication -Definition
cont.
assistant aiding as a spiritual advisor, and
that is not intended to be disclosed to third
persons other than those to whom
disclosure furthers the purpose of the
communication, or to those reasonably
necessary for the transmission of the
communication.
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Rules for Disclosing Privileged
Communication
 The privilege against disclosure belongs to
the “penitent.”
 A chaplain or chaplain assistant may NOT
disclose the content of privileged
communication without the express
consent,of the person to whom the privilege
belongs.
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Military Rule of Evidence
(M.R.E.) 503
(a) General rule of privilege. A person has a
privilege to refuse to disclose and to prevent
another from disclosing a confidential
communication by the person to a clergyman or
to a clergyman’s assistant, if such
communication is made either as a formal act of
religion or as a matter of conscience.
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“Confidential” Communication –
M.R.E. 503(b)
(2) A communication is “confidential” if made to a
clergyman in the clergyman’s capacity as a spiritual
advisor or to a clergyman’s assistant in the assistant’s
official capacity and is not intended to be disclosed to
third persons other than those to whom disclosure is in the
furtherance of the purpose of the communication or to
those reasonably necessary for the transmission of the
communication.
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“Clergyman” - M.R.E. 503(b)
(1) A “clergyman” is a minister, priest, rabbi, chaplain, or
other similar functionary of a religious organization, or an
individual reasonably believed to be so by the person
consulting the clergyman.”
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Rules for Disclosing Privileged
Communications
 If a military judge or other presiding official
determines that no privilege exists, a chaplain or
chaplain assistant may be subject to punitive or
adverse administrative action for failing to comply
with the ruling.
 Also, a chaplain should not presume that the
military concepts of privileged communication will
prevent disclosure in state courts.
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Rules for Disclosing Privileged
Communications -- cont’d
 Chaplains, in deciding whether or not to disclose
information, must also consider the tenets of their
faith, the provisions of their ordination vows, and
their individual consciences.
 Not disclosing information when a legal obligation
to disclose information exists, may result in
punitive or adverse administrative action.
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Rules for Disclosing Privileged
Communications -- cont’d
 Due to the complexity and importance of
preventing unauthorized disclosure of information,
chaplains and chaplain assistants are advised to
consult with supervisors, seek legal counsel from
the Staff Judge Advocate, or ask for policy
guidance from the Chief of Chaplains (OCCH).
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Sensitive Information
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Sensitive Information -- Definition
 Any non-privileged communication to a
chaplain, chaplain assistant, or other chaplain
personnel that involves personally sensitive
information that would not be a proper subject
for general dissemination.
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Sensitive Information -- Definition
 Sensitive information should normally not
be disclosed unless the declarent expressly
permits disclosure.
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Sensitive Information -- Definition
 Knowledge of a soldier’s enrollment in
Drug & Alcohol Programs, Psychiatric
Treatment, Prior Arrest or Prior
Hospitalization is generally considered as
Sensitive Information.
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Rules for Disclosing Sensitive
Information
 Sensitive information should NOT be
disclosed unless the individual about whom
the information pertains expressly consents.
 There is generally no legal impediment to
disclosure of this information.
 In appropriate cases, such information should
be disclosed.
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Rules for Disclosing Sensitive
Information
 Remember to consider the tenets of your faith,
the provisions of your ordination vows, and
your individual conscience.
 Chaplains who refuse to disclose Sensitive
Information when required to do so may be
subject to punitive and adverse administrative
action.
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Rules for Disclosing Sensitive
Information
Proper handling of Sensitive
Information reinforces trust in the
Chaplaincy by soldiers and their
family members.
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Discussion Problems
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U.S. v. Moreno
Three Part Test
1. Communication must be formal act of
religion or as a matter of conscience.
2. Must be made to a clergyman in his
capacity as a spiritual advisor.
3. Communication must be intended to be
confidential.
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Discussion Problem #1
 Soldier makes appointment with battalion chaplain
 Soldier feels he’d hurt himself unless he got some help
 Chaplain warns soldier that expressions of intent to harm
self/others would not be treated confidentially
 Chaplain testifies in court to support motion to suppress
 Chaplain provides statements made before warning
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U.S. v. ISHAM
 Chaplains testimony was protected.
 The Soldier went to the Chaplain in his spiritual
capacity at a business hour appointment.
 The Soldier made statements while under great
mental distress & only to get help.
 Chaplain and Soldiers intent was to preserve
confidentiality but only disclose information that
was necessary to help the Soldier.
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Discussion Problem #2
 Soldier, Catholic, married, having family problems
 Engaged in sexual acts with daughter
 Calls pastor, also father-in-law, discloses sexual acts
 “Dad, can you help me? My marriage is falling apart …”
 “Son, is it true you took liberties with your daughter?”
 “Yes, Dad, and I feel like a dog … will you pray for me?”
 “Yes, I will.”
 Soldier not a member of pastor’s church
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U.S. v. Coleman
 Statements were allowed.
 Statements were to father-in-law not Pastor.
 Not made as a formal act of religion or
matter of conscience.
 Not intended to be confidential.
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Interpretation of Right
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Interpretation of Right
MORAL
Individual
Personal Theology/
Morality/Conscience interprets
what is right
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Interpretation of Right
MORAL
LEGAL
Individual
Personal Theology/
Morality/Conscience interprets
what is right
Collective
Society interprets what is right
(Rules of evidence).
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Interpretation of Right
MORAL
Individual
Personal Theology/
Morality/Conscience interprets
what is right
Collective
LEGAL
PROFESSIONAL
ETHICS
Society interprets what is right
(Rules of evidence).
Military Chaplain Corps interprets
what is right
(Chaplain doctrine / policy)
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Interpretation of Right
MORAL PROFESSIONAL
ETHICS
LEGAL
Risk results from disagreement
in interpretation
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Supervisory Issues
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Supervisory Issues
•
Supervisors must recognize privileged
communication and sensitive information issues
and provide guidance to subordinates dealing
with these issues in ministry.
•
Supervisors must also understand their
responsibilities regarding subordinates when
their subordinates commit misconduct or
perform unsatisfactorily.
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Questions?
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