(1) "Cleric"means a minister, priest, rabbi, or other similar functionary of a religiousorganization or an individual reasonably believed to be so by the personconsulting that individual.
(2) "ConfidentialCommunication" means a communication:
(A) madeprivately; and
(B) notintended for further disclosure except to other persons in furtherance of thepurpose of the communication.
(b) Statementof the Privilege. Aperson has a privilege to refuse to disclose, and to prevent another fromdisclosing, any confidential communication:
(1) madeto a cleric in the cleric's religious capacity; and
(2) necessaryand proper to enable the cleric to discharge the function of the cleric'soffice according to the usual course of practice or discipline.
(c) WhoMay Claim the Privilege.The privilege may be claimed by:
(1) theperson who made the confidential communication;
(2) theperson's guardian or conservator;
(3) theperson's personal representative if the person is deceased; and
(4) theperson who was the cleric at the time of the communication on behalf of thecommunicant.
2011Advisory Committee Note. – Thelanguage of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intended to be stylisticonly. There is no intent to change any result in any ruling on evidenceadmissibility.
The considerationsthat support evidentiary privileges for confidential communications generallyfavor a privilege for confidential communications made to a member of theclergy, at least to the extent that the communication is entrusted to thecleric in the cleric's religious capacity. See 8 Wigmore,Evidence § 2396 at 878. See also Utah Code Ann. § 78-24-8(3).
The Committeechose the form of the proposed Rule 506 of the Federal Rules of Evidence (neveradopted) for clarity and for consistency with the Committee's proposed Rule502. See, e.g., 51 F.R.D. 315, 371-73. The Committeebegan with the basic concept of the current rule stated in Utah Code Ann. §78-24-8(3), making changes as discussed below.
(a)Definitions. Subparagraph (1) defines the term "cleric" to include a"minister, priest, rabbi, or other similar functionary of a religiousorganization." The non-denominational and gender neutral term"cleric" replaces the terms "priest" and"clergyman" traditionally used in statements of the privilege, but embracesthe same concept. Subparagraph (1) expands the scope of the concept, however,by including as a cleric "an individual reasonably believed so to be bythe person consulting that individual."
Subparagraph(2) defines a confidential communication consistently with proposed Rule 502.
(b) Generalrule of privilege. The scope of the proposed privilege falls between aprivilege narrowly restricted to doctrinally required confessions and aprivilege broadly applicable to all confidential communications with a cleric.The privilege includes confessions, but also applies to all confidentialcommunications to the cleric that are (1) "in the cleric's religiouscapacity" and (2) "necessary and proper for the cleric's officeaccording to the usual course of practice or discipline." The privilegedoes not extend to confidential communications with a cleric when the cleric isacting in any capacity other than the religious capacity.
The term"in the cleric's religious capacity" was chosen over "in thecleric's professional character" to avoid an implication that onlycommunications with professional members of the clergy are protected. Theprivilege applies to confidential communications with lay clerics as well.
The language"necessary and proper for the cleric to discharge the functions of thecleric's office according to the usual course of practice or discipline"replaces "in the course of discipline enjoined by the church to which hebelongs" in order to extend the privilege beyond doctrinally required confessions.For similar language, see Iowa Code Ann. 1950 Section 622.10. See also, Statev. Burkett, 357 N.W.2d 632 (Iowa 1984) for an application of the Iowa statute.
(c) Who mayclaim the privilege. The person who makes the confidential communication holdsthe privilege, but the rule provides that others may claim the privilege forthat person in certain circumstances. A cleric is presumed to have authority toclaim the privilege for the communicant, though the presumption may be overcomeby a preponderance of evidence to the contrary. See Rule of Evidence 301 (a).
Under theprivilege as phrased, the person making the confidential communication isentitled not only to refuse to disclose the communication, but also to preventthe disclosure by the cleric or others who, by presence in furtherance of thereligious purpose or by overhearing without the knowledge of the person makingthe communication, may know the content of the communication. Problems ofwaiver are dealt with by Rule 507.
The Committeefelt that exceptions to the privilege should be specifically enumerated, andfurther endorsed the concept that in the area of exceptions, the rule shouldsimply state that no privilege existed, rather than expressing the exception interms of a "waiver" of the privilege. The Committee wanted to avoidany possible clashes with the common law concepts of "waiver."