FROM THE CLASSROOM
By: Ray Hill, Professor Emeritus, Santa Rosa Junior College
Doctor/Patient and Clergy/Confessor Privileges and Criminal Investigations
This is third in a series of articles covering the California Evidence Code and criminal investigations. This time we will cover the Doctor/Patient and Clergy/Confessor privileges. One will be an easy source for suspect statements and the other is pretty much “locked down”, even more so than Attorney/Client.
DOCTOR-PATIENT
This one is simple. Always try to talk to the doctor about any conversations that involve criminal activity. Any communication between doctor-patient that involves a patient’s knowledge or participation in criminal activity is not privileged in court (998 E.C.).
A doctor might be hesitant to interview or give a statement because of his/her “Hippocratic Oath”. They don’t teach the Evidence Code in medical school! HIPPA regulations may cover medical conditions, but not suspect statements! You can try to diplomatically educate the doctor about the “crime exception”. If the doctor is still hesitant to speak, when he/she receives a subpoena, one must testify or face contempt of court sanctions. A search warrant or subpoena could also be issued for examination notes.
Another exception to this privilege is when services are sought to enable or aid anyone to commit or plan to commit a crime or tort or to escape detection or apprehension for a crime or tort (997 E.C.).
Doctors are required to make certain "proactive" reports to law enforcement. This includes suspected child abuse, sexual abuse, or neglect of a minor (11160 P.C.) and any injuries possibly caused by criminal means (gunshot, stabbing, sexual assault, physical assault (11161 P.C.). Failure to make these reports is a misdemeanor.
CLERGY-CONFESSOR
"The history of this nation has shown a uniform respect for the character of sacramental confession as inviolable by governmental agents interested in securing evidence of crime from the lips of criminals”. “All fifty states have enacted statutes granting some form of testimonial privilege to clergy communications" (Mockaitis v. Harcleroad (1997) 104 F. 3d 1522).
It’s going to be hard to interview a minister about what was disclosed. There is a confidential communications privilege (belonging to both parties) for a penitential communication given for the purpose of spiritual counsel, advice, and absolution (1032 E.C.). California enacted legislation in 1851 to protect religious confessions from compelled testimony. Church tenets also preclude a clergy person from disclosing communications because he/she is held to a separate standard of "religious canons".
A penitential communication occurs when it is given to a person authorized or accustomed to hear such words under the discipline and canons of his/her church, denomination or organization and has the duty to keep these communications secret. It is not necessary for a clergy person to be an ordained minister. A clergy person can include a lay religious practitioner (Latter Day Saints or Jehovah's Witness) as long as this person receives religious communications in the course of duties. The privilege also applies to clergy persons from foreign countries serving migrant populations. By statute, penitential communications are excluded from those occupations requiring mandatory reporting of children physical abuse, sexual abuse or neglect (11166(d) (1) P.C. ).
Still not all communications are penitential in nature. Examples:
A Marin County church guild treasurer embezzled $27,000. She had already given a penitential confession to one priest. She then told a church rector that she was in process of obtaining a loan to repay the funds and asked him to assist her in recouping fraudulent checks before they were dishonored. She also authorized the rector to speak to other church officials about "her problem". The statements to the rector were not privileged. One priest had already granted absolution. The conversation with the rector was made for the purpose of enlisting his help in abating consequences for the crime. Defendant also authorized her conversation to be discussed with others (Peo. v. Edwards (1988) 203 Cal. App. 3d 1360); In a 1990 Los Angeles County pimping and pandering prosecution (Peo. v. Mary Ellen and Will Tracy), defendants were affiliated with The Church of the Highest Goddess (alleged to have historical roots back to ancient Babylon). Church practice required persons to make a monetary payment to the church in order to have sex (sacrifice) with the high priestess (defendant). U.S. District Court ruled the purported religious activities were a ruse for criminal profiteering and not penitential communications!
A personal story of interest. In the early 1980’s, I had a non-affiliated student in the Basic Police Academy named Bob Wedel. Bob had been an ordained Catholic priest for 8-years and was making a career change! He told the class about the seriousness of church canons to maintain the privacy of communications received from a parishioner. Disclosing such a conversation would cause a lightning bolt to come out of the sky and his next assignment would be conducting services in the dead of Winter in a rural village in Alaska! When Bob would have a family come in and disclose to him about incest or molestation in the home, he would receive such communication according to church canons. He then would suggest that if the family wanted further assistance, they could consult the church counselor. If a family member did this, the counselor is one of the occupations requiring a mandatory report (11166 (d)(2) P.C.). An end-run! Bob ended up being hired by the Foster City Public Safety Department (San Mateo County) and rose through the ranks, eventually made a lateral transfer to the former Sonoma Police Department (now a Sonoma County Sheriffs Office contract city) at the rank of Captain, and retired as the Police Chief at St. Helena P.D. (Napa County). No doubt, a stellar career!
Next up - Sexual Assault Victim / Counselor, Domestic Violence Victim/ Counselor and Psychotherapist/Patient Privileges.
Stay Safe!
RH
