Warning! Today's blog is legal in nature, and not very funny at all. It is the sort of blog I usually don't read. However, it is a good forum for me to organize thoughts about something I find very interesting. Sorry. As a bone, I give you the following bon mot, "Never attribute to malice that which can be adequately explained by stupidity."
CULTURE CLASH
Today the Denver Post ran a story about a criminal case in which the defense is seeking a clergy privilege for information received from a medicine man regarding the confession of an accused murderer. The article raises a few very interesting points, but let me remove some of the underbrush first. First, the case is in Federal court because the victim and accused are both registered members of a tribe in Colorado. Hence, no state jurisdiction. Second, yes, the accused sounds like a scumbag. The nature of evidence suppression cases is that we already know some really, really bad evidence about the accused, and they are trying to have it . . . suppressed. You can't read these cases and decide that the accused is too big a scumbag to get off if you want the deterrent to bad police behavior represented by the exclusion of ill-gotten evidence. Finally, a court has summarized the privilege as one that "protects communications to a member of the clergy, in his or her spiritual or professional capacity, by persons who seek spiritual counseling and who reasonably expect that their words will be kept in confidence."
I do not know if non-Catholic Christians have a sacrament like confession (or Penance and Reconciliation in the catechism). However, I think just the practical problem of not having the privilege for Catholics will make it evident why we have the privilege. For Catholics, Christ instituted the sacrament that we call confession (§ 1446), and it is a necessary to admit sins (§ 1455) to a priest (§ 1456). Without reconciliation, the keys of heaven are not available to us (§ 1444). In other words, for strictly adherent Catholics, it is an absolute moral necessity that they confess their sins, out loud, to a priest. Obviously, this can only happen in an atmosphere of trust, where the person confessing knows their confession will not be repeated. Thus, without the clerical exception, states ran the very unpalatable (especially where District Attorneys, Judges, and Sheriffs are elected) prospect of jailing priests for not breaking the confessional seal. Nobody wants to face re-election after that, so we have a privilege. There are probably less cynical reasons for that, but I think mine meets the Ockham's Razor test of ``pluralitas non est ponenda sine neccesitate'', which translates as ``entities should not be multiplied unnecessarily.''
Now the question arises as to whether the medicine man in this tribe acts in a role that makes it imperative, or even likely, that people would unburden their souls on him. If he doesn't, extending the privilege makes no sense, except in political correctness terms (i.e. all religions are equal, so treat all religious figures the same). An expert for the defense said in an affidavit, "it is common knowledge that traditional tribal peoples do not distinguish between legal, medical, psychological and/or emotional issues. A medicine man provides treatment in all these areas through traditional ceremony, counseling, advisement, prayer, blessings and sacrament. People who seek out the services of a medicine man expect confidentiality and confidentiality is a necessary component for complete disclosure." Leaving aside both that "common knowledge" is no basis for expert testimony, and the fact that it should be "do not distinguish among. . ." it appears that the clerical privilege is being chosen by the defense over the attorney/client privilege that attaches in legal situations, and the doctor/patient privilege that attaches to both physical and psychological medical care situations. This raises a big red flag for me, since it is not at all clear that a priest dispensing legal advice would receive the clerical privilege. Ditto a priest dispensing medical advice. Imagine, "Father, I have a shooting pain in my leg." "It might be a pinched nerve. Get a better chair and see if it gets better." Privileged? Only if you have no better argument for the court…
It is also interesting to note that the medicine man signed an affidavit which indicated that "Carlos Herrera confidentially told me about the murder of Brenda Chavez on Feb. 9, 2001, and these statements were related to me as a medicine man. I was unaware that I could assert a confidential privilege." Well, no kidding you were unaware. We figured that out when you told us what he said! The real question is, which capacity as medicine man did he seek you out in? If it was legal, he's going to jail, since you are not a lawyer. If it was medical, he is going to jail, since you are not a medical professional. If it was spiritual, we have to wait and see what the courts say.
CULTURE CLASH
Today the Denver Post ran a story about a criminal case in which the defense is seeking a clergy privilege for information received from a medicine man regarding the confession of an accused murderer. The article raises a few very interesting points, but let me remove some of the underbrush first. First, the case is in Federal court because the victim and accused are both registered members of a tribe in Colorado. Hence, no state jurisdiction. Second, yes, the accused sounds like a scumbag. The nature of evidence suppression cases is that we already know some really, really bad evidence about the accused, and they are trying to have it . . . suppressed. You can't read these cases and decide that the accused is too big a scumbag to get off if you want the deterrent to bad police behavior represented by the exclusion of ill-gotten evidence. Finally, a court has summarized the privilege as one that "protects communications to a member of the clergy, in his or her spiritual or professional capacity, by persons who seek spiritual counseling and who reasonably expect that their words will be kept in confidence."
I do not know if non-Catholic Christians have a sacrament like confession (or Penance and Reconciliation in the catechism). However, I think just the practical problem of not having the privilege for Catholics will make it evident why we have the privilege. For Catholics, Christ instituted the sacrament that we call confession (§ 1446), and it is a necessary to admit sins (§ 1455) to a priest (§ 1456). Without reconciliation, the keys of heaven are not available to us (§ 1444). In other words, for strictly adherent Catholics, it is an absolute moral necessity that they confess their sins, out loud, to a priest. Obviously, this can only happen in an atmosphere of trust, where the person confessing knows their confession will not be repeated. Thus, without the clerical exception, states ran the very unpalatable (especially where District Attorneys, Judges, and Sheriffs are elected) prospect of jailing priests for not breaking the confessional seal. Nobody wants to face re-election after that, so we have a privilege. There are probably less cynical reasons for that, but I think mine meets the Ockham's Razor test of ``pluralitas non est ponenda sine neccesitate'', which translates as ``entities should not be multiplied unnecessarily.''
Now the question arises as to whether the medicine man in this tribe acts in a role that makes it imperative, or even likely, that people would unburden their souls on him. If he doesn't, extending the privilege makes no sense, except in political correctness terms (i.e. all religions are equal, so treat all religious figures the same). An expert for the defense said in an affidavit, "it is common knowledge that traditional tribal peoples do not distinguish between legal, medical, psychological and/or emotional issues. A medicine man provides treatment in all these areas through traditional ceremony, counseling, advisement, prayer, blessings and sacrament. People who seek out the services of a medicine man expect confidentiality and confidentiality is a necessary component for complete disclosure." Leaving aside both that "common knowledge" is no basis for expert testimony, and the fact that it should be "do not distinguish among. . ." it appears that the clerical privilege is being chosen by the defense over the attorney/client privilege that attaches in legal situations, and the doctor/patient privilege that attaches to both physical and psychological medical care situations. This raises a big red flag for me, since it is not at all clear that a priest dispensing legal advice would receive the clerical privilege. Ditto a priest dispensing medical advice. Imagine, "Father, I have a shooting pain in my leg." "It might be a pinched nerve. Get a better chair and see if it gets better." Privileged? Only if you have no better argument for the court…
It is also interesting to note that the medicine man signed an affidavit which indicated that "Carlos Herrera confidentially told me about the murder of Brenda Chavez on Feb. 9, 2001, and these statements were related to me as a medicine man. I was unaware that I could assert a confidential privilege." Well, no kidding you were unaware. We figured that out when you told us what he said! The real question is, which capacity as medicine man did he seek you out in? If it was legal, he's going to jail, since you are not a lawyer. If it was medical, he is going to jail, since you are not a medical professional. If it was spiritual, we have to wait and see what the courts say.
posted by David at 12:49 PM
0 Comments:
Post a Comment
<< Home