“To compel a minister or priest to testify to a confession made to him by a penitent is equivalent to an annulment of the confessional institution, for many would no longer make confessions.”
In the Federal Rules of Evidence of the United States there is a privileged communication known as the Priest-Penitent privilege.
It is a form of communication made by a person to a priest, rabbi, cleric, or minister in the course of confession, or in a similar course of discipline by other religious bodies, that are privileged [or protected] from disclosure (Barron’s Law Dictionary).
In the Philippine Rules on Evidence there is a similar provision seen in the 1964 Rules of Court, the 1989 Rules on Evidence, and the 2019 Amendments to the Rules on Evidence.
However, the 2019 Priest-Penitent privilege provision was expanded to cover “any communication… made to or any advice given by him or her.”
The privilege was originally limited to communications of a confessional character, but, with the 2019 amendments, now includes the advice provided by the minister or priest to the faithful, provided it is given in confidence and confers spiritual guidance.
Furthermore, the amendments now extend to people who are not ministers or priests, but are “persons reasonably believed to be so” (Rule 130, Section 24 [d], Rules on Evidence).
The Priest-Penitent privilege prior to the amendment was consistent with the Roman Catholic Canonical Rules that considers “penance” an inviolable sacrament.
Therefore, it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason (Canon 983).
In fact, if an interpreter or other person will “in any way have knowledge of sins from [the] confession… they are also obliged to observe secrecy” (Canon 983).
Moreover, “a confessor is also prohibited… from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded” (Canon 984).
To compel a minister or priest to testify to a confession made to him by a penitent is equivalent to an annulment of the confessional institution, for many would no longer make confessions.
This must not be done in a society where religious tolerance is sanctioned by law (Francisco, Evidence citing People v. Philipps, 1 West. L.J., 1820).
This tolerance is not surprising since eight out of 10 Filipinos are Roman Catholic, and utmost reverence is given to priests or ministers. Hence, it is very rare for them to be subpoenaed for a testimony.
The privilege is limited to the confessions of sins made for the purpose of receiving spiritual advice or assistance.
Where the accused met the priest on a railroad train and, with no intent of receiving his professional advice, assistance or consolation, told his story, incriminating himself, it was held that there was no privilege under the statute (Francisco, Evidence citing State v. Brown, 95 Iowa 381).
Statements made by a church member, in the presence of his minister and fellow members, whom he had assembled, are not privileged, since they are not made to the minister in his professional character (Francisco, Evidence citing Milburn v. Haworth, 47 Colo. 593).
Where a minister is consulted, not as such, but as a notary, or a friend and interpreter, there can be no privilege (Francisco, Evidence citing 58 Am. Jur. 297).
Hence, in a prosecution for the crime of bigamy it was held that the statements of the accused made to a clergyman who was asked to communicate them to the first wife to influence her to abandon the prosecution for bigamy are not privileged (Francisco, Evidence citing Underhill’s Criminal Evidence, 5th Ed., Vol. II).
The communication was not of an ecclesiastical nature and was not intended to be confidential.
In the case of Morales v. Portuando, Jose Antonio Rivera (Rivera) was murdered in the Bronx while walking with Jennifer Rodriguez, her 11-year-old son, and Cesar Montalvo (Montalvo) along a street near Kelly Park.
A group of teenagers, at least one of whom was carrying a baseball bat or stick, chased and caught Rivera, struck him in the head and the rest stabbed and hit him (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
No one was arrested at the scene of the murder. A few days later, a man named Morales who was then only 18 years old, appeared at a police station for questioning.
He did so voluntarily and denied any involvement in the murder. He was then placed in a lineup. Rodriguez, who had watched as her common-law husband was murdered, identified Morales as one of the assailants (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
Morales, Montalvo, and a certain Peter Ramirez were indicted for Rivera’s murder. Morales was offered a plea bargain, but he rejected the offer and insisted on going to trial.Morales and Montalvo went to trial; however, Ramirez committed suicide. The jury later rendered a verdict finding both Morales and Montalvo guilty of murder in the second degree (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
Shortly after Montalvo and Morales were convicted but before they were sentenced, another teenager from the neighborhood, Jesus Fornes, asked to speak to Father Joseph Towle.
Towle, a Roman Catholic priest who worked in the Hunts Point section of the South Bronx, visited Fornes in his home (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
Fornes told Father Towle that he was upset because two members of his group had been convicted of a murder that he and two others had actually committed. Fornes said that one of the other two individuals was Peter Ramirez, the one who committed suicide (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
When Father Towle was asked by Fornes as to what he should do, Towle told him that “if he had the courage and heart to do it, that he should go to the court and that he should acknowledge that he was responsible, and the others were not.” At the end of the conversation, Towle granted Fornes absolution (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
The question to be answered is whether the statements of Jesus Fornes are privileged as confidential communication to a member of the clergy and are thus inadmissible at trial.
Under New York law, a minister, priest, or other member of the clergy may not disclose, at trial, “a confession or confidence made to him in his professional character as spiritual advisor,” unless there is a waiver of the privilege by the confessing person (154 F. Supp. 2d 706 (S.D.N.Y. 2001).
Although the clergy-penitent privilege derives from the Catholic practice of confession, it encompasses statements made to clerics in any denomination, so long as the “communication in question was made in confidence and for the purpose of obtaining spiritual guidance.”
As the statute indicates, the privilege may be waived by the person who made the confession (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
While Fornes’s statements to Father Towle may arguably qualify as privileged communication, the statements were not rendered inadmissible, for the following reasons, as quoted from the court records:
First, Father Towle has concluded that his conversation with Fornes was not a “formal confession,” but that it was a “heart-to-heart” talk. After much deliberation, he has concluded that he was free, after Fornes died, to disclose the conversation. The Archdiocese has agreed that Father Towle acted properly in disclosing the conversation.
Second, even assuming Fornes’s statements were covered by the privilege, he has waived it. Following his conversation with Father Towle, Fornes disclosed at least portions of his conversation to three different people—Maria Montalvo, Servino, and Cohen. Moreover, Fornes spoke to Father Towle precisely about whether he should reveal his involvement in the crime to exculpate Morales and Montalvo (154 F. Supp. 2d 706 [S.D.N.Y. 2001]).
The Philippine amendment was expanded to cover communications outside of a confessional character, but this does not mean that any communication to a minister or priest is privileged.
The party invoking the privilege must first establish that the communication was confidential, the advice given was for spiritual guidance, and that to do so is enjoined by the church to which the minister or priest belongs.