Legal Practice 1 Fall 2016

Student #: 811
Section L6D
Memo 2

From: Student # 811, Associate

To: Cynara H. McQuillan, Partner
Client/Matter: 00996/002 (Horan Clergy-Penitent Privilege)
Date: November 19, 2016
Re: Question of protected conversations under the Clergy Penitent Privilege

I. Question Presented

a. Under the New York statute C.P.L.R. 4505, can our client properly
invoke the Clergy-Penitent Privilege when compelled to testify about
two conversations he had with his congregant: (1) a conversation in a
crowded restaurant where the congregant admitted to taking money
that didnt belong to him; and (2) a conversation in the church office
where the congregant revealed his full confession to the
aforementioned act?

II. Brief Answer:

a. For the communication to receive protection under the clergy-penitent
privilege, it [the communication] must be made with intention the
congregant to be confidential and the clergy must be acting in his or
her capacity as a spiritual advisor. (A court is likely) to find that first
conversation is not likely to be protected by this privilege because
although made in confidence, it does not meet the spiritual advisor
standard. The second conversation in the church office is likely to be
protected because it meets both the confidentiality and spiritual
advisor standards.
b. The congregants communication with the clergy must have been
intended (must have intention) to be confidential (or is it just must be
confidential) and the clergy
c.
Intro/ Background Facts:
d. Relevant Facts
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Discussion section (CREAC)

III. Conclusion:
a. Our client will likely be able to establish that the Clergy Penitent
Privilege protects the Pastor from discussing Conversation 2 (in
church) in the trial, but not Conversation 1 (in the restaurant).
b. Even if Horan is compelled to testify and is asked about either
conversation, just as the Reyes or Gigante court did, this court may
also have other evidence to pursue the indictment or whatever charges
on Carter.
Statute Rule:
Unless the person confessing or confiding waives the privilege, a clergyman,
or other minister of any religion or duty accredited Christian Science
practitioner, shall not be allowed to disclose a confession or confidence made to
him in his professional character as spiritual advisor. N.Y.C.P.L.R. 4505
(McKinney 2016).

Confidentiality: *key elements*: alone in private setting, not overheard,

a. (Given)
The communication in question must be made in confidence. Courts look to
whether the congregant intended for the statement to be confidential. People v.
Carmona,_ _ _ _. Courts have also looked at whether the congregant had a
reasonable expectation that the communication would be kept secret. People v.
Reyes, _ _ _. Critical to the inquiry is whether the cleric and the congregant were
alone. People v. Carmona, _ _ _. People v. Harris, _ _ _.
b.
Under New York law, for a conversation to be privileged under NYCPRL (S)
4505, a communication is confidential conversation is bolstered by the
congregants intention to be confidential, made in a private setting where the
parties are alone(, and)/ , the communication is not overheard and where the
congregant has a reasonable expectation that the communication would be kept
secret.

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Section L6D
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c.
A clergy-congregant communication satisfies the confidentiality standard when
the congregant intends for the communication to be made in confidence with
reasonable expectation that it will be held a secret while he or she is alone with
the clergy.

Note: Include or explain the court ruling decisions in the rule explanation
Case #1:
Although the New York State Court of Appeals ultimate ruled against the
defendant in this murder trial, the court did however
In Carmona, the New York State Court of Appeals ultimately concluded that the
trial courts did not err in ruling the defendants conversations with the two
ministers as privileged communication because it was protected under NY CPLR
4505, and thus inadmissible as evidence in his trial. The particular conversation in
question / on trial contained the defendants confession of the murder. Thus the
lower courts found that Carmonas conversation the reverend was intended to be
confidential because the defendant purposefully waited until they were alone
before admitting to the murder, rather than immediately divulging upon meeting
the minister.
Similarly, the Court of Appeals in Reyes held that the defendants communication
with Father Schmidt was a communication made in confidence because Reyes
explicitly requested to speak with the priest in his office, and furthermore, made
his inculpatory statements in the private rectory where he was alone with the priest.

In Harris, the Court of Appeals held that Harris conversation with the deacon,
who was also an off-duty police detective was not protected by the privilege
because a conversation in a car with other people in it, is not made in confidence.
The court interestingly points out that Harris could have made the car setting
private by closing the doors and ensuring they were alone, but because this was not
done, it was not confidential.

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Student #: 811
Section L6D
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Application of Confidentiality Rule:

In our clients case, the conversation in the restaurant does meet the confidentiality
standard because by waiting for his wife to leave the dinner table, Carter displayed
his intent for the communication to be confidential, just like the defendant in
Carmona. Although it can be argued that the crowded restaurant setting is unlike
the private setting of the rectory or the garden, the fact that Carter and Horan were
alone at the dinner table is sufficient to satisfy the confidentiality standard. This
exception is similar to Harris in the sense that the Harris court acknowledged that
that they may have ruled differently had there been no one else in the car at the
time of discourse. Following this line of reasoning, the restaurant conversation
clearly satisfies the privacy element because no one else was at the dinner table.

Spiritual Advisor/ Spiritual Guidance:

The communication must be made to the cleric in his professional character as
spiritual advisor. N.Y.C.P.L.R. 4505 (McKinney 2016). A spiritually focused
conversation is one where the congregant initiates the conversation with the cleric
for the purpose of spiritual guidance and includes a spiritual act, such as a prayer.
People v. Carmona, _ _, People v. Reyes, _ _; Cox v. Miller, 296 F.3d 89, 110 (2d
Cir. 2002).

Rule #1: (Spiritual Advisor/ Guidance Focus)

In Keenan v. Gigante, the Court of Appeals held that the Clergy Penitent Privilege
was not properly invoked when Reverend Gigante refused to answer questions at
his Grand Jury testimony because Gigante was not acting in his capacity as a
spiritual advisor when discussing the possibility of entering a work-release
program. Additionally, there was no spiritual act.
Case #1:

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In People v. Carmona, the Court of Appeals held that Carmonas conversation with
the two priests was protected under the privilege because he sought spiritual
guidance upon meeting with the two priests, whereby the priests replied in their
professional character as spiritual advisor.

Case #2:
In People v. Reyes, the Trial Court of Queens County found that Reyes
conversation with Father Schmidt was made within a spiritual capacity because the
incriminating details in the rectory. Furthermore, Reyes sought spiritual guidance
when he explicitly requested to pray with Father Schmidt.
Case #3:
In People v. Harris, the Trial Court of Kings County held that the privilege was not
properly invoked because they determined that the conversation in the car was not
confidential and because the Deacons role in the Church was administrative
business focused, instead of one as a spiritual advisor, he was not deemed to be
acting in the sense of a clergyman.
This was a seminal case that defines a clergyman as one who provides spiritual
guidance.

Case #4:
In Cox v. Miller, the Appellate Court of the Second Department held that the
defendants confession to his fellow AA member, who happened to be a minister,
did not satisfy the spiritual advisor standard because there was no testimony from
the defendant that he sought spiritual guidance. The court emphasized that had he
asked for spiritual guidance, the conversation would have been protected because
the minister was acting in his spiritual advisor role.

Application of Spiritual Guidance rule:

In our case, the restaurant conversation one that was not sought for spiritual
guidance and thus it is not protected by the privilege because the conversation
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Section L6D
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occurred at a dinner that was created on the basis of a casual, as friends, event.
Under this pretense, Horan was not acting in his professional character as a
spiritual advisor. Rather, he was acting as Carters friend.

CREAC section (draft of restaurant conversation)

In order to properly invoke the Clergy Penitent Privilege, the conversation must
meet four criteria: (1) it must be confidential, (2) It must be made to a minister or
clergy member acting in a professional character as a spiritual advisor; (3) It must
be made for the purpose of seeking spiritual advice or religious counsel; and (4) It
must not be waived by the person making the confidential statement. People v.
Harris, 34 Misc.3d 281, 287 (Sup. Ct. Kings County 2011).
For the purposes of this memo, we will not discuss the element of waiver and
assume that the person is a clergyman in fact. The element of confidentiality and
seeking spiritual guidance are the two driving factors in analyzing whether or not
Pastor Horans conversations with Mitchell Carter are protected by the privelge.
The communication in question must be made in confidence. Courts look to
whether the congregant intended for the statement to be confidential. People v.
Carmona,_ _ _ _. Courts have also looked at whether the congregant had a
reasonable expectation that the communication would be kept secret. People v.
Reyes, _ _ _. Critical to the inquiry is whether the cleric and the congregant were
alone. People v. Carmona, _ _ _. People v. Harris, _ _ _.

Secondly, the communication must be made to the cleric in his professional

character as spiritual advisor. N.Y.C.P.L.R. 4505 (McKinney 2016). To make
this determination courts look to whether the congregant was seeking spiritual
guidance or advice. People v. Carmona, _ _, People v. Reyes, _ _; Cox v. Miller,
296 F.3d 89, 110 (2d Cir. 2002).

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Legal Practice 1 Fall 2016
Student #: 811
Section L6D
Memo 2