Clergy-Penitent Privilege
- Overview of Assignment
In WA 3, you will write a complete office memo that analyzes whether the two conversations between Pastor Martin and Fred Emerson (in the diner and outside the church) are covered by the Clergy-Penitent Privilege. You will analyze this problem under New York state law only. Do not analyze this problem under any other statutory or common law framework.
It will be up to you to make a prediction and substantiate that prediction with your research and your analysis of the law and facts. Your goal is to be objective and clear in your analysis and your conclusions about each of the conversations—you will analyze each conversation separately; you do not need to reach the same conclusion for each conversation.
The WA 3 Facts document provides the complete universe of facts for this problem. The “WA 3 Instructions Part I (Research)” document provides the context and guidance on conducting the research.
Follow the course policies for formatting and submission of writing assignments, including numbering pages and using Times New Roman 12-point font.
The page limit for this assignment is 7 double-spaced pages.
- Open Universe Research
WA 3 is an open universe assignment. You are not limited to a particular set or number of cases when you write your memo; your case selection and the way you use cases will be guided by your goal of presenting your analysis as thoroughly and accurately as possible within the constraints of the assignment.
Your research report results, as reviewed and discussed in class this week, will provide the foundation for the research you will use in your memo. As you know, I strongly recommend that you create a case chart to organize your research and to help you analyze the cases for use in writing your memo.
Now that you have learned the detailed facts of Lucas Martin’s problem, you may decide to conduct follow-up research to strengthen your analysis, reach a conclusion and provide support for that conclusion. You may find, after doing additional research, that the research you have already done is sufficient to allow you to fully analyze the question of whether Pastor Martin’s conversations with Fred Emerson are protected ty the clergy-penitent privilege. The research process itself, however, is likely to give you a more complete understanding of the problem and confidence in your conclusion.
Even if you decide not to conduct additional research, remember that an important part of the research process is not just finding sources of the law, but taking the time to analyze and understand what you read and figure out how what you read helps you evaluate the issue you are addressing.
Note: Although, as we have discussed, secondary sources are very valuable tools, you will not cite any secondary sources in the memo itself. When you write the memo, you will rely on and cite to primary authorities only—the NY statute and relevant cases interpreting the statute.
- Citations
The appropriate use and placement of citations to demonstrate reliance on legal authority is required for WA 3 as in all assignments. For WA 3, like WA 2, you must cite to authority using the proper Bluebook citation form for practitioners.
Please use citation from the citation sheet. You can use one more another case that is not in the citation sheet. The case has to be in NY.
From: [Your Name]
Subject: WA 3
Date: [Date of Submission]
Questions Presented
Question 1: Does the conversation between Pastor Martin and Fred Emerson at the diner fall under clergy-penitent privilege as provided by N.Y. C.P.L.R. Law § 4505?
Question 2: Does the conversation between Pastor Martin and Fred Emerson outside the church fall under clergy-penitent privilege as provided by N.Y. C.P.L.R. Law § 4505?
Brief Answers
The conversation between Pastor Martin and Fred Emerson at the diner falls under clergy-penitent privilege as provided by N.Y. C.P.L.R. Law § 4505 as it was made “in confidence” to Pastor Martin in his capacity as a spiritual provider.
The conversation between Pastor Martin and Fred Emerson outside the church falls under clergy-penitent privilege as provided by N.Y. C.P.L.R. Law § 4505 as it was made “in confidence” to Pastor Martin in his capacity as a spiritual provider.
Facts
Lucas Martin is a clergy at Mt. Zion Methodist Church of Harrison, New York. He frequently offers advice to parishioners experiencing various challenges in their lives, with the premise that faith can support parishioners. Pastor Lucas has a relationship with Fred Emerson, who is the youngest child of the Emerson family. The Emersons family trust Pastor Lucas and has called upon him to guide Fred to ensure that he is on the right path. Pastor Lucas is a coach for the basketball team that Fred plays on and Pastor Lucas has requested Fred to call him “Coach” during his role as a coach for the basketball team as opposed to his primary designation, “Pastor.”
Fred’s parents, Evan, and Rachel, went to visit Fred’s older sibling James on the weekend of March 10-12, 2023, and left Fred at home so he could catch up on his homework. Fred Emerson has a game on Friday night, after which he decided to join his teammates for a celebratory party. Pastor Lucas reminded Fred to party less during the celebration. Pastor Lucas received a call from Fred around 6:35 am on Saturday, March 11, 2023. Fred called from the police station requesting pastor Lucas to pick him up from the station after being released as his parents were in California. He took Lucas to a Diner after noticing that he was troubled, where they had the first conversation.
In the first conversation, Fred Emerson led Pastor Lucas into the farthest booth in the Diner even though Pastor Lucas wanted to occupy the booth near the door. Fred indicated to pastor Lucas that he required his help, and referred to him as “Pastor.” He cut the conversation short when a waitress arrived with the order, and only continued after the waitress left. The conversation did not continue after Fred noticed that the Diner had become crowded. Pastor Lucas did not share the conversation that he had with Fred at the diner with Fred’s parents.
The second conversation took place on Sunday, March 12, 2023. Fred Emerson approached Lucas in front of the church where he was holding a conversation with his parishioners. He referred to him as Pastor Martin and informed him that he was keen to speak with him in a whisper. After attracting Pastor Martin’s attention, Fred Emerson indicated that he wanted to talk with Pastor Martin away from the other parishioners. Fred started the interaction by indicating that he wanted to continue the conversation that they had started at the diner. Following the conversation where Fred shares his account of what happened, he requested Pastor Lucas not to share the information with anyone. Throughout the conversation, only pastor Martin and Fred Emerson were present as the other parishioners kept their distance.
Pastor Lucas has received subpoenas from a Grand Jury investigating a fatal hit-and-run crime that allegedly involves Fred Emerson. Fred's lawyers have informed pastor Lucas that Fred was not waiving his clergy-penitent privilege.
Discussion
Conversation at the Diner
Issue: Does the conversation between Pastor Martin and Fred Emerson at the diner fall under clergy-penitent privilege as provided by N.Y. C.P.L.R. Law § 4505?
Rule: New York's Evidence Rule 4505 provides that the privilege applies only to confidential communications made either "as an act of faith or in a professional capacity." The rule further specifies that communication is considered confidential when it is made "in confidence" and "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional religious services to the communicant" (NY C.P.L.R. § 4505).
Analysis: An analysis of the conversation at the diner between Fred and Pastor Martin indicates that the four elements of client-penitent privilege are met. Notably, it is agreed that Pastor Lucas is clergy and Fred was not willing to waive the client-penitent privilege. New York's Evidence Rule 4505 provides that the privilege applies to communications made either "as an act of faith or in a professional capacity." The rule was asserted in People v. Harris, 934 N.Y.S.2d 639, (N.Y. Sup. Ct. 2011) where the court rules that one of the key elements of clergy-penitent privilege is that the communication must be made to seek spiritual advice or religious counsel. An analysis of the conversation suggests that Fred was seeking spiritual guidance and confessing to a sin, which would suggest that the conversation was...