When Privileged Information Is Leaked to Police

In the 1996 film Sleepers, a priest gives an alibi to a criminal defendant charged with murder. The priest not only swears he was with the defendant at the time of the murder, but also produces ticket stubs from the sporting event he supposedly attended with the defendant.

This scene mirrors other cultural references in which the relationship between an individual and his or her spiritual adviser is considered beyond the reach of the law. However, that relationship has been called into question considering rules that require mandatory reporting for some crimes. What happens when a person confesses to a religious or spiritual adviser and the adviser turns the information over to the police?

Priest-Penitent Privilege

At a broad level, communication between an individual and clergy is considered privileged.  Under Neb. Rev. Stat. § 27-506, a penitent may claim the privilege to prevent the priest from disclosing information. However, it must still happen in the appropriate context.  In Hills v. State, 61 Neb. 589 (1901), the Nebraska Supreme Court held, “To render a communication to a minister of the gospel or priest privileged, it must have been received in confidence. By this we do not mean that it must be made under the express promise of secrecy, but rather that the communication was in confidence, and with the understanding, express or implied, that it should not be revealed to any one. The mere fact that a communication is made to a person who is a lawyer, a doctor, or a priest does not of itself make such communication privileged. To have that effect, it must have been made in confidence of the relation, and under such circumstances as to imply that it should forever remain a secret in the breast of the confidential adviser.”

Under federal law, the priest-penitent privilege is a matter of common law. The rule was proposed as Federal Rule of Evidence 506, but was not ratified. In Trammel v. United States, 445 U.S. 40, the Supreme Court mentioned this privilege, stating, “These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”

Privileged Information Leading to Arrests

But can privileged information lead to an arrest?  Under Neb. Rev. Stat. § 27-1101, which discusses the applicability of evidence rules, the law provides that:  “The rules with respect to privileges apply at all stages of all actions, cases, and proceedings.” 27-1101(3). Later, the statute reads, “The rules, other than those with respect to privileges, do not apply in the following situations… issuance of warrants for arrest, criminal summonses, and search warrants.” 27-1101(4)(b).   The implication is that privilege is still maintained in a manner that prohibits privileged information from becoming the impetus for an arrest, summons, or warrant.

Mandatory Reporting

In an effort to increase reporting of abuse cases, Neb. Rev. Stat. § 28-711(1) declared that “When any physician, any medical institution, any nurse, any school employee, any social worker, the Inspector General appointed under section 43-4317, or any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect… he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number established by subsection (2) of this section.”

Yet, no case law exists on whether priests are specifically considered mandatory reporter.  In an attempt to clarify the conflict between mandatory reporting and privileged information, Neb. Rev. Stat. § 28-707(2) states that in child abuse cases, “The statutory privilege between patient and physician, between client and professional counselor, and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for a violation of this section.” This clarification, however, does not address the priest-penitent relationship, and therefore is not explicitly applicable.

Because priests and clergy are not listed as mandatory reporters, and the priest-penitent relationship is not formally excepted in § 28-707(2), it could be reasonably argued that an arrest originating from a report from the church to the police may have violated the rights of the accused to protection under the premise of privileged information.

This creates a window for defense counsel to protect their clients.  For example, a criminal defense lawyer may be able to have evidence suppressed if it was obtained using a search warrant that originated from privileged information that was conveyed from an individual to their religious leader.  Creating a successful defense that protects the rights of the accused is particularly critical in child abuse and sexual abuse cases, and Berry Law has been using the law to defend clients in serious felony matters since 1965.

Hiring a Defense Attorney

If information you shared in confidence is shared with the police, leading to your arrest, Berry Law’s team of attorneys may be able to help. Call today.

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