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Colorado Clergy – Penitent Laws – Can I Tell My Priest, Pastor, Clergy The Truth? – 13-90-107. The laws governing the admission of evidence in Colorado criminal trials are complex. Among those laws are rules that apply to communications within so called “special relationships.” These “privileges” prohibit the admission at trial of communications between lawyers and clients, doctors and patients, married people, and … clergy – communicants.
This article looks at when the accused in a Colorado criminal case can rely on the confidentiality of these communications and when he or she cannot…
Before statements made to a chaplain, minister, priest or rabbi.. are confidential – the following factors apply:
The communication must be:
(1) made to a clergy member, minister, priest, or rabbi;
(3) made to the clergy member, minister, priest, or rabbi in his or her professional capacity; and
(4) made in the course of discipline expected by the religious body to which the clergy member, minister, priest, or rabbi belongs.
A statement is not “confidential” when it is made in the presence of a third party – such as a police officer.
In one recent (2014) Colorado case the Defendant contended that the statements he made to the hospital chaplain were privileged under the clergy-communicant privilege.
The Colorado court of appeals held that – after applying the clergy-communicant privilege found in Colorado statute. § 13-90-107- there were no privileged communications.
When the law is applied – when the statutory conditions are met, a privilege operates to protect confidential communications between a clergy member and a person who seeks his or her guidance.
A clergy member, minister, priest, or rabbi shall not be examined without both his or her consent and also the consent of the person making the confidential communication as to any confidential communication made to him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs.
This law provides for the four requirements that must be satisfied for the privilege to bar revelation of the communication at trial without consent of both the clergy member and the communicant.
As noted above – the communication must be: (1) made to a clergy member, minister, priest, or rabbi; (2) confidential; (3) made to the clergy member, minister, priest, or rabbi in his or her professional capacity; and (4) made in the course of discipline expected by the religious body to which the clergy member, minister, priest, or rabbi belongs.
The law does not define what is – or is not a “confidential communication.” But cases that have interpreted the law have found that the presence of another party during the communication – destroys the confidential nature of the communication.
Here are some examples:
The presence of a security officer during confession to a crime by a prisoner to a prison chaplain destroyed confidentiality.
Statements made by the defendant to a detective who was also a deacon of a church were not confidential as the statements were made in the presence of both the defendant’s aunt and his brother. (The only exception is a third party that is “essential to the communication” such as an interpreter.)
A conversation between a defendant and a clergy member, held in the presence of a church elder who was not a clergy member, is not confidential.
BUT conversations between a defendant and ministers, held in hospital hallway, reception room, and waiting room, apart from others, ARE private and constituted privileged clergy-communicant statements.
In the context of lawyer-client “confidential communications” which have the same issues as in this context – if a communication is made under circumstances giving rise to a reasonable expectation that the communication will be treated as confidential – it will remain so. There must be some “intention of secrecy.” The communication must be private or secret.
A communication is not confidential if there is no evidence that the communication was made to a clergyman or woman while he or she is acting in the course of the discipline expected by his or her religious body.
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