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Privileged Communications

Slides prepared by: Brian J. Novak, Attorney-Advisor, Garrison-OSJA, for presentation to Chaplain Unit Ministry Team Training, 19 August 2006.

Presentation today by: CH (MAJ) Joe Hughes, Family Life Chaplain

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References

Military Rule of Evidence 503 AR 165-1 AR 608-18

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Purpose

Explain a person’s privilege to refuse to

disclose and to prevent another from

disclosing a confidential communication by

the person to a clergyman or to a

clergyman’s assistant.

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Agenda

Privileged Communications Rules for disclosing Privileged

Communications Sensitive Communications Discussion Problems Interpretation of Right Supervisory Issues

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Privileged Privileged CommunicationsCommunications

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Privileged Communication -- Definition

Privileged Communications. A privileged communication is defined as any communication to a chaplain or chaplain assistant given as a formal act of religion or as a matter of conscience, that is, any communication that is made in confidence to a chaplain acting as a spiritual advisor or to a chaplain

(Cont on next slide)

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Privileged Communication -- Definition

cont.

assistant aiding as a spiritual advisor, and that is not intended to be disclosed to third persons other than those to whom disclosure furthers the purpose of the communication, or to those reasonably necessary for the transmission of the communication.

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Rules for Disclosing Privileged Communication

The privilege against disclosure belongs to the “penitent.”

A chaplain or chaplain assistant may NOT disclose the content of privileged communication without the express consent,of the person to whom the privilege belongs.

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Military Rule of Evidence(M.R.E.) 503

(a) General rule of privilege. A person has a

privilege to refuse to disclose and to prevent

another from disclosing a confidential

communication by the person to a clergyman or

to a clergyman’s assistant, if such

communication is made either as a formal act of

religion or as a matter of conscience.

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“Confidential” Communication – M.R.E. 503(b)

(2) A communication is “confidential” if made to a clergyman

in the clergyman’s capacity as a spiritual advisor or to a

clergyman’s assistant in the assistant’s official capacity

and is not intended to be disclosed to third persons other

than those to whom disclosure is in the furtherance of the

purpose of the communication or to those reasonably

necessary for the transmission of the communication.

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“Clergyman” - M.R.E. 503(b)

(1) A “clergyman” is a minister, priest, rabbi, chaplain, or

other similar functionary of a religious organization, or an

individual reasonably believed to be so by the person

consulting the clergyman.”

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Rules for Disclosing Privileged Communications

If a military judge or other presiding official determines that no privilege exists, a chaplain or chaplain assistant may be subject to punitive or adverse administrative action for failing to comply with the ruling.

Also, a chaplain should not presume that the military concepts of privileged communication will prevent disclosure in state courts.

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Rules for Disclosing Privileged Communications -- cont’d

Chaplains, in deciding whether or not to disclose information, must also consider the tenets of their faith, the provisions of their ordination vows, and their individual consciences.

Not disclosing information when a legal obligation to disclose information exists, may result in punitive or adverse administrative action.

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Rules for Disclosing Privileged Communications -- cont’d

Due to the complexity and importance of preventing unauthorized disclosure of information, chaplains and chaplain assistants are advised to consult with supervisors, seek legal counsel from the Staff Judge Advocate, or ask for policy guidance from the Chief of Chaplains (OCCH).

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Sensitive Information

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Sensitive Information -- Definition

Any non-privileged communication to a chaplain, chaplain assistant, or other chaplain personnel that involves personally sensitive information that would not be a proper subject for general dissemination.

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Sensitive Information -- Definition

Sensitive information should normally not be disclosed unless the declarent expressly permits disclosure.

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Sensitive Information -- Definition

Knowledge of a soldier’s enrollment in Drug & Alcohol Programs, Psychiatric Treatment, Prior Arrest or Prior Hospitalization is generally considered as Sensitive Information.

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Rules for Disclosing Sensitive Information

Sensitive information should NOT be disclosed unless the individual about whom the information pertains expressly consents.

There is generally no legal impediment to disclosure of this information.

In appropriate cases, such information should be disclosed.

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Rules for Disclosing Sensitive Information

Remember to consider the tenets of your faith, the provisions of your ordination vows, and your individual conscience.

Chaplains who refuse to disclose Sensitive Information when required to do so may be subject to punitive and adverse administrative action.

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Rules for Disclosing Sensitive Information

Proper handling of Sensitive Information reinforces trust in the Chaplaincy by soldiers and their family members.

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Discussion Problems

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U.S. v. Moreno

Three Part Test

1. Communication must be formal act of religion or as a matter of conscience.

2. Must be made to a clergyman in his capacity as a spiritual advisor.

3. Communication must be intended to be confidential.

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Discussion Problem #1

Soldier makes appointment with battalion chaplain

Soldier feels he’d hurt himself unless he got some help

Chaplain warns soldier that expressions of intent to harm

self/others would not be treated confidentially

Chaplain testifies in court to support motion to suppress

Chaplain provides statements made before warning

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U.S. v. ISHAM

Chaplains testimony was protected. The Soldier went to the Chaplain in his spiritual

capacity at a business hour appointment. The Soldier made statements while under great

mental distress & only to get help. Chaplain and Soldiers intent was to preserve

confidentiality but only disclose information that was necessary to help the Soldier.

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Discussion Problem #2

Soldier, Catholic, married, having family problems

Engaged in sexual acts with daughter

Calls pastor, also father-in-law, discloses sexual acts

“Dad, can you help me? My marriage is falling apart …”

“Son, is it true you took liberties with your daughter?”

“Yes, Dad, and I feel like a dog … will you pray for me?”

“Yes, I will.”

Soldier not a member of pastor’s church

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U.S. v. Coleman

Statements were allowed. Statements were to father-in-law not Pastor. Not made as a formal act of religion or

matter of conscience. Not intended to be confidential.

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Interpretation of RightInterpretation of Right

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Interpretation of Right

MORAL

IndividualPersonal Theology/Morality/Conscience interprets what is right

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Interpretation of Right

MORAL

LEGALCollective

Society interprets what is right (Rules of evidence).

IndividualPersonal Theology/Morality/Conscience interprets what is right

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Interpretation of Right

MORAL

LEGAL

IndividualPersonal Theology/Morality/Conscience interprets what is right

Military Chaplain Corps interprets what is right(Chaplain doctrine / policy)

Collective

Society interprets what is right (Rules of evidence).

PROFESSIONALETHICS

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Interpretation of Right

MORAL

LEGAL

PROFESSIONALETHICS

Risk results from disagreement in interpretation

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Supervisory Issues

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Supervisory Issues

• Supervisors must recognize privileged communication and sensitive information issues and provide guidance to subordinates dealing with these issues in ministry.

• Supervisors must also understand their responsibilities regarding subordinates when their subordinates commit misconduct or perform unsatisfactorily.

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Questions?Questions?