Rule 503. Communications to Clergy.

 

(a)      Definitions.

 

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

 

(2)    "Confidential Communication" means a communication:

 

(A)   made privately; and

 

(B)   not intended for further disclosure except to other persons in furtherance of the purpose of the communication.

 

(b)   Statement of the Privilege. A person has a privilege to refuse to disclose, and to prevent another from disclosing, any confidential communication:

 

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

 

(2)   necessary and proper to enable the cleric to discharge the function of the cleric's office according to the usual course of practice or discipline.

 

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

 

(1)   the person who made the confidential communication;

 

(2)   the person's guardian or conservator;

 

(3)   the person's personal representative if the person is deceased; and

 

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

 

 

 

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

 

ADVISORY COMMITTEE NOTE

 

The considerations that support evidentiary privileges for confidential communications generally favor a privilege for confidential communications made to a member of the clergy, at least to the extent that the communication is entrusted to the cleric in the cleric's religious capacity. See 8 Wigmore, Evidence § 2396 at 878. See also Utah Code Ann. § 78-24-8(3).

 

The Committee chose the form of the proposed Rule 506 of the Federal Rules of Evidence (never adopted) for clarity and for consistency with the Committee's proposed Rule 502. See, e.g., 51 F.R.D. 315, 371-73. The Committee began 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 religious organization." The non-denominational and gender neutral term "cleric" replaces the terms "priest" and "clergyman" traditionally used in statements of the privilege, but embraces the same concept. Subparagraph (1) expands the scope of the concept, however, by including as a cleric "an individual reasonably believed so to be 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 a privilege narrowly restricted to doctrinally required confessions and a privilege broadly applicable to all confidential communications with a cleric. The privilege includes confessions, but also applies to all confidential communications to the cleric that are (1) "in the cleric's religious capacity" and (2) "necessary and proper for the cleric's office according to the usual course of practice or discipline." The privilege does not extend to confidential communications with a cleric when the cleric is acting in any capacity other than the religious capacity.

 

The term "in the cleric's religious capacity" was chosen over "in the cleric's professional character" to avoid an implication that only communications with professional members of the clergy are protected. The privilege applies to confidential communications with lay clerics as well.

 

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

 

(c) Who may claim the privilege. The person who makes the confidential communication holds the privilege, but the rule provides that others may claim the privilege for that person in certain circumstances. A cleric is presumed to have authority to claim the privilege for the communicant, though the presumption may be overcome by a preponderance of evidence to the contrary. See Rule of Evidence 301 (a).

 

Under the privilege as phrased, the person making the confidential communication is entitled not only to refuse to disclose the communication, but also to prevent the disclosure by the cleric or others who, by presence in furtherance of the religious purpose or by overhearing without the knowledge of the person making the communication, may know the content of the communication. Problems of waiver are dealt with by Rule 507.

 

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