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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Rules of Evidence Series RULE 505

Forgive me father for I have sinned. This is how a confession in the Catholic tradition begins. And did you know that anything you say in a confession to a religious leader is privileged communication? Well Rule 505 spells out exactly what that means.

Does it have to be a Catholic priest? No. It can be "minister, priest, rabbi, accredited Christian Science Practitioner" or any person that you believe is such a minister, priest etc.

This part of the rule makes it so that Police or an opposing civil party's investigator can't pose as a Priest and then get the defendant to admit to illegal or negligent conduct.

The rule allows you not only to stay silent if you choose not to disclose what you said to the clergy member but it allows the person who made the communication to the clergy member to prevent ANYONE from disclosing the contents of the communication.

What if the person who made the admission dies? Well then the Clergy member is presumed to have the ability to refuse to disclose the information on behalf of the deceased person who made the statement.

Can the Clergy member disclose who came to give confession as long as he doesn't say what was confessed? NO! Simpson v. Tennant 871 S.W.2d 301 (Tex. App. -- Houston [14th Dist.] 1994. In Simpson the Court of Appeals in Houston held that the identity of the person seeking religious counsel was also protected by the privilege outlined in Rule 505.

The privilege even covers group counseling and marriage counseling if done with the expectation of confidentiality through a clergy member. In re Grand Jury Investigation 918 F.2d 374, 384 (3d Cir. 1990). When I started practicing 10 years ago it was called "clergyman."

Rule 505. Privilege For Communications to a Clergy Member

(a) Definitions. In this rule:

  1. A “clergy member” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or someone whom a communicant reasonably believes is a clergy member.

  2. A “communicant” is a person who consults a clergy member in the clergy member’s professional capacity as a spiritual adviser.

  3. A communication is “confidential” if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.

(b) General Rule. A communicant has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication by the communicant to a clergy member in the clergy member’s professional capacity as spiritual adviser.

(c) Who May Claim. The privilege may be claimed by:

  1. the communicant;

  2. the communicant’s guardian or conservator; or

  3. a deceased communicant’s personal representative.

The clergy member to whom the communication was made may claim the privilege on the communicant’s behalf—and is presumed to have authority to do so.

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