Court Martial Lawyer Military Rule of Evidence MRE 503

Court Martial Lawyer Military Rule of Evidence MRE 503 – Communications to Clergy

This privilege safeguards communications made as a formal act of religion or conscience. The privilege may be claimed by the penitent or in the absence of contrary evidence, by the clergyman or his/her assistant. See United States v. Napoleon, 46 M.J. 279 (1997). For this privilege to apply, the communication has to: be made either as a formal act of religion or as matter of conscience; be made to a clergyman in his or her capacity as a spiritual advisor or to a clergymans assistant in his or her capacity as an assistant to a spiritual advisor; and be intended to be confidential. This privilege was amended in 2007 to include communications made to a clergymans assistant. A clergymans assistant includes a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.

In United States v. Benner, 57 MJ 210 (2002), the CAAF reversed the case, holding that when a chaplain meets with a penitent, Rule 503 permits the disclosing person to prevent the chaplain from disclosing the contents of the statement when it was made as a formal act of religion or as a matter of conscience. In the case the chaplain spoke with the accused and then told him that army rules would force the chaplain to disclose the confession of the accused. This was a wrong statement of the Army’s regulation governing chaplains. Because of the statements made by the chaplain the accused then voluntarily confessed to CID agents when the chaplain took him to the MP station. The CAAF ruled that the confession was involuntary, and according to a totality of the circumstances test could not be deemed admissible. In United States v. Shelton, 64 M.J. 32 (C.A.A.F. 2006), the CAAF ruled that communications made to a civilian minister acting as a marital counselor are part of the attorney-client privilege.