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53 Am. Crim. L. Rev. 515 (2016)
The Constitutionality of Broadening Clergy Penitent Privilege Statutes

handle is hein.journals/amcrimlr53 and id is 520 raw text is: 






      THE CONSTITUTIONALITY OF BROADENING CLERGY
                    PENITENT PRIVILEGE STATUTES



Caroline Incledon*

                                   INTRODUCTION

   Testimonial privileges occupy a unique place in criminal law. Most evidentiary
rules are permissive, allowing the prosecution and defense leeway to put forth their
best case, subject to some restrictions against unreliable, prejudicial, or mislead-
ing evidence such as hearsay.1 As the United States Supreme Court has explained:

      We have elected to employ an adversary system of criminal justice in which
      the parties contest all issues before a court of law. The need to develop all
      relevant facts in the adversary system is both fundamental and comprehensive.
      The ends of criminal justice would be defeated if judgments were to be
      founded on a partial or speculative presentation of the facts. The very integrity
      of the judicial system and public confidence in the system depend on full
      disclosure of all the facts, within the framework of the rules of evidence.2

Testimonial privileges, on the other hand, limit potentially compelling evidence in
order to protect communications that society values and does not want to infringe.
The Supreme Court has recognized that these exceptions to the demand for every
man's evidence are not lightly created nor expansively construed, for they are in
derogation of the search for truth.4 In Wigmore's influential treatise on evidence,
he listed four fundamental factors for determining when a privilege should be
applied.5 He noted that 1) the communications must come from a confidence that
they will not be shared; 2) this confidentiality must be essential to the parties'
relationship; 3) the relationship must be one the community supports; and 4) the
injury that occurs to the relationship must outweigh the evidence's benefit.6 For
example, spousal privilege, therapist-patient privilege, and attorney-client confi-


  * Georgetown University Law Center, juris doctor expected 2016; Tufts University, B.A. 2013. Thank you to
Professors Mark Chopko and Holly Hollman for helping me choose a paper topic and providing extremely helpful
feedback, and thank you to the staff of the American Criminal Law Review for their hard work on this piece.
Copyright © 2016, Caroline Incledon.
  1. Anne Pachciarek, Federal Rules of Evidence Testimonial Privileges, 71 J. CRIM. L. & CRIMINOLOGY 593,
594 (1980); see also R. Michael Cassidy, Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person
Exception to the Clergy-Penitent Privilege?, 44 WM. & MARY L. REv. 1627, 1632 33 (2003).
  2. United States v. Nixon, 418 U.S. 683, 709 (1974). In the same case, the Court noted, generally, an attorney
or a priest may not be required to disclose what has been revealed in professional confidence. Id.
  3. Pachciarek, supra note 1, at 594 95.
  4. Nixon, 418 U.S. at 710.
  5. 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2285 (John T. McNaughton rev. ed., Aspen
Publishers 1961).
  6. Id.

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