918 F.2d 374 (3d Cir. 1990)
On November 28, 1985, a fire occurred at a house in an all-white neighborhood in the Forest Hills section of Pittsburgh, Pennsylvania, that had recently been purchased by a black family.1 The police and fire departments determined that the fire was the likely result of arson.2 Within several days of the fire, Mr. and Mrs. George Kampich, Mrs. Kampich’s adult son George Shaw, and Patty DiLucente, Shaw’s fiancee, sought counseling from the Reverend Ernest Knoche, a Lutheran clergyman.3 All four persons lived in the home next door to the site of the fire.4 Mr. and Mrs. Kampich are members of Pastor Knoche’s church, although Shaw has occasionally attended services and Shaw and DiLucente are not members.5
In November of 1989, a grand jury convened by the district court for the Western District of Pennsylvania commenced an investigation of the suspected arson, focusing on possible violations of 42 U.S.C. § 3631 prohibiting racially motivated housing discrimination and 18 U.S.C. § 241 prohibiting conspiracies to violate civil rights.6 On November 28, 1989, the government subpoenaed Pastor Knoche to testify before the grand jury about the 1985 counseling session.7 The government asserted that it had reason to believe that the Kampiches, Shaw, and DiLucente had planned or participated in the arson and had discussed their involvement with the pastor.8 Pastor Knoche informed the government that he intended to assert the clergy-communicant privilege and would refuse to answer any questions regarding the counseling session.9
On November 28 and 29, 1989, the district court held a hearing on the government’s motion to compel Pastor Knoche to testify.10 The district judge questioned the pastor about the extent of his family and group counseling, the parties involved in the discussion, and the confidentiality of their communications.11 Pastor Knoche stated that family counseling, in contrast to individual counseling, constituted a typical and important part of his ministry.12 He concluded that those whom he spiritually counsels expect that he will keep any communications made to him in strict confidence.13 The district court sustained Pastor Knoche’s right to assert a clergy-communicant privilege and denied the government’s motion to compel his testimony. The district judge described the decision as tough but concluded that compelling the pastor to testify would break down church-state divisions and invade a sacrosanct area.14
The government appealed the district court’s order pursuant to 18 U.S.C. § 3731.15 The government chose not to brief the question whether the federal law of evidence recognizes the clergy-communicant privilege.16 Instead, it asked the court to assume the existence of the privilege and decide only its scope with respect to the presence of DiLucente, who was not yet related to the others by blood or marriage at the time of the counseling session.17
Whether a clergy-communicant privilege exists under federal common law?18
Under Fed.R.Evid. 501, evidentiary privileges in federal criminal proceedings including grand jury investigations are governed by the principles of the common law as interpreted by the courts in light of reason and experience.19 Proposed Fed.R.Evid. 506 and Wigmore's four prerequisites provide guidance for recognizing privileges that promote confidential relationships essential to society when the injury from disclosure outweighs the benefit to litigation.20
Yes. The court applied Rule 501's flexible standard to the facts of Pastor Knoche's counseling of the Kampiches, Shaw, and DiLucente shortly after the 1985 arson.21 The communications originated in confidence, confidentiality was essential to the clergy-communicant relationship, the relationship is one the community ought to foster, and the injury from disclosure would exceed any litigation benefit.22 State statutes, federal precedents such as Mullen and Trammel, and the uncontroversial nature of proposed Rule 506 confirmed the privilege's deep roots in American common law.23
A clergy-communicant privilege exists under federal common law.24
Whether the clergy-communicant privilege protects communications made to a clergyperson in a spiritual or professional capacity with a reasonable expectation of confidentiality?25
The clergy-communicant privilege protects communications made (1) to a clergyperson (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of confidentiality.26 As with the attorney-client privilege, the presence of third parties essential to and in furtherance of the communication does not vitiate the privilege.27
Yes. Pastor Knoche, an ordained Lutheran minister, received communications from the Kampiches, Shaw, and DiLucente in his professional capacity as spiritual advisor during family counseling that he described as a typical and important part of his ministry founded on redemption and forgiveness.28 The participants reasonably expected confidentiality, as the pastor testified that those he counsels expect strict confidence and the district court found the communications were made in confidence as the pastor understood them.29
The clergy-communicant privilege protects communications made to a clergyperson in a spiritual or professional capacity with a reasonable expectation of confidentiality.30
Whether the presence of a third party not related by blood or marriage at the time of the communication vitiates the clergy-communicant privilege?31
The presence of third parties does not vitiate the clergy-communicant privilege if those parties are essential to and in furtherance of the communication to the clergyperson.32 Modern doctrine focuses on this essentiality test rather than limiting protection to one-to-one penitential confessions or requiring blood or marital ties.33
No. DiLucente's presence as Shaw's fiancee at the group counseling session does not automatically vitiate the privilege.34 The court rejected the government's argument that only family members related by blood or marriage may participate in protected communications.35 Instead, the privilege may apply to group discussions if the third party's presence satisfies the essentiality and in furtherance standard, consistent with proposed Rule 506(a)(2) and analogous attorney-client privilege principles.36
The presence of a third party not related by blood or marriage at the time of the communication does not vitiate the clergy-communicant privilege.37
Whether the district court developed a sufficient record and made sufficient findings to determine whether the privilege was properly invoked?38
A party asserting the clergy-communicant privilege bears the burden of proving its applicability, including that communications were made to a clergyperson in a spiritual or professional capacity with a reasonable expectation of confidentiality.39 The district court must develop a record and make findings on these elements, particularly in the complex context of group counseling, before the privilege can be sustained or denied.40
No. Although the district court correctly recognized the privilege's existence, it failed to inquire whether each participant's presence was essential to and in furtherance of the communications or to make findings on whether the Kampiches, Shaw, and DiLucente communicated with Pastor Knoche in his spiritual capacity and with a reasonable expectation of confidentiality.41 The sparse colloquy on confidentiality and the lack of exploration of DiLucente's role or the Lutheran church's counseling practices left the record insufficient for appellate review.42
The district court did not develop a sufficient record and made sufficient findings to determine whether the privilege was properly invoked.43