Confessions at Law

I quoted Jeremy Bentham on this point Friday. Of course, he wasn't the last to discuss the issue of what is or ought to be the status of priest-penitent confessions to crimes in common law countries.

In the US, Rule 505 of the Uniform Rules of Evidence sets out the privilege in this way:

(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) 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 the clergyman in his professional character as a spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

Prior to the adoption of any specific codes by any of the states of the United States in this matter, the case for the privilege had to be made on constitutional grounds. In 1813, in PEOPLE v. PHILLIPS, a New York State Court said:

It is essential to the free exercise of a religion, that its ordinances should be administered-that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance.

Since there was no "doctrine of incorporation" at the time -- and no 14th amendment on which to hang it -- the "free exercise of religion" language there refers to the state constitution.

In 1956, in a paper in the Tulane Law Review, David Louisell said that such rules should not be thought of as in the first instance exclusionary rules.

"They are, or rather by the chance of litigation may become, exclusionary rules; but
this is incidental and secondary. Primarily they are a right to be let alone, a right to unfettered freedom, in certain narrowly prescribed relationships, from the state’s coercive or supervisory powers and from the nuisance of its eavesdropping."

All in all, I find I've stumbled upon a fascinating subject. Its fascination depends, though, upon the myth of sovereignty. In an anarcho-capitalist system, where law enforcement and judicial systems were themselves plural and market-based, that system of confidences and exemptions would prevail which best satisfied over-all demand, given all the different factors that bear upon the demand for justice -- or (to make it sound less abstract) the demand for the services of adjudicators.