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Rule 503.Communications to Clergy.

 

(a)   Definitions.

(a)(1)   "Cleric"means a minister, priest, rabbi, or other similar functionary of a religiousorganization or an individual reasonably believed to beso by the person consulting that individual.

 

(a)(2)   "ConfidentialCommunication" means a communication:

(a)(2)(A)   made privately; and

 

(a)(2)(B)   not intended for further disclosure except to other personsin furtherance of the purpose of the communication.

 

(b)   Statementof the Privilege. Aperson has a privilege to refuse to disclose, and to prevent another fromdisclosing, any confidential communication:

(b)(1)   made to a cleric in the cleric's religious capacity; and

 

(b)(2)   necessary and proper to enable the cleric to discharge thefunction of the cleric's office according to the usual course of practice ordiscipline.

 

(c)   WhoMay Claim the Privilege. The privilege may beclaimed by:

(c)(1)   the person who made the confidential communication;

 

(c)(2)   the person's guardian or conservator;

 

(c)(3)   the person's personal representative if the person isdeceased; and

 

(c)(4)   the person who was the cleric at the time of thecommunication on behalf of the communicant.

 

 

 2011 Advisory Committee Note. ?The language of this rule has been amendedas part of the restyling of the Evidence Rules to make them more easilyunderstood and to make style and terminology consistent throughout the rules.These changes are intended to be stylistic only. There is no intent to changeany result in any ruling on evidence admissibility.

 

Original Advisory CommitteeNote.? The considerations that support evidentiary privileges forconfidential communications generally favor a privilege for confidentialcommunications made to a member of the clergy, at least to the extent that thecommunication is entrusted to the cleric in the cleric's religious capacity.See 8 Wigmore, Evidence ? 2396 at 878. See alsoUtah Code ? 78-24-8(3).

 

TheCommittee chose the form of the proposed Rule 506 of the Federal Rules ofEvidence (never adopted) for clarity and for consistency with the Committee'sproposed Rule 502. See, e.g., 51 F.R.D. 315, 371-73. The Committeebegan with the basic concept of the current rule stated in Utah Code ?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, butembraces the same concept. Subparagraph (1) expands the scope of the concept,however, by including as a cleric "an individual reasonably believed so tobe by the person consulting that individual."

 

Subparagraph(2) defines a confidential communication consistently with proposed Rule 502.

 

(b)General rule 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.

 

Thelanguage "necessary and proper for the cleric to discharge the functionsof the cleric's office according to the usual course of practice ordiscipline" replaces "in the course of discipline enjoined by thechurch to which he belongs" in order to extend the privilege beyonddoctrinally required confessions. For similar language, see Iowa Code Ann. 1950Section 622.10. See also, State v. Burkett, 357 N.W.2d 632 (Iowa 1984)for an application of the Iowa statute.

 

(c) Whomay claim the privilege. The person who makes theconfidential communication holds the privilege, but the rule provides thatothers may claim the privilege for that person in certain circumstances. Acleric is presumed to have authority to claim the privilege for thecommunicant, though the presumption may be overcome by a preponderance ofevidence 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.

 

TheCommittee felt that exceptions to the privilege should be specificallyenumerated, and further endorsed the concept that in the area of exceptions,the rule should simply state that no privilege existed, rather than expressingthe exception in terms of a "waiver" of the privilege. The Committeewanted to avoid any possible clashes with the common law concepts of"waiver."