Privileged Communications

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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. References. Military Rule of Evidence 503 AR 165-1 - PowerPoint PPT Presentation

Transcript of Privileged Communications

  • *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

  • *References Military Rule of Evidence 503 AR 165-1AR 608-18

  • *PurposeExplain a persons privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergymans assistant.

  • *AgendaPrivileged CommunicationsRules for disclosing Privileged CommunicationsSensitive CommunicationsDiscussion ProblemsInterpretation of RightSupervisory Issues

  • *Privileged Communications

  • *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)

  • *Privileged Communication -- Definitioncont.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.

  • *Rules for Disclosing Privileged CommunicationThe 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.

  • *Military Rule of Evidence(M.R.E.) 503General 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 clergymans assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

  • *Confidential Communication M.R.E. 503(b)A communication is confidential if made to a clergyman in the clergymans capacity as a spiritual advisor or to a clergymans assistant in the assistants 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.

  • *Clergyman - M.R.E. 503(b)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.

  • *Rules for Disclosing Privileged CommunicationsIf 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.

  • *Rules for Disclosing Privileged Communications -- contd

    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.

  • *Rules for Disclosing Privileged Communications -- contd

    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).

  • *Sensitive Information

  • *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.

  • *Sensitive Information -- Definition

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

  • *Sensitive Information -- Definition

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

  • *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.

  • *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.

  • *Rules for Disclosing Sensitive Information

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

  • *Discussion Problems

  • *U.S. v. MorenoThree Part TestCommunication must be formal act of religion or as a matter of conscience.Must be made to a clergyman in his capacity as a spiritual advisor.Communication must be intended to be confidential.

  • *Discussion Problem #1Soldier makes appointment with battalion chaplainSoldier feels hed hurt himself unless he got some helpChaplain warns soldier that expressions of intent to harm self/others would not be treated confidentiallyChaplain testifies in court to support motion to suppressChaplain provides statements made before warning

  • *U.S. v. ISHAMChaplains 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.

  • *Discussion Problem #2Soldier, Catholic, married, having family problemsEngaged in sexual acts with daughterCalls pastor, also father-in-law, discloses sexual actsDad, 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 pastors church

  • *U.S. v. ColemanStatements 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.

  • *Interpretation of Right

  • *Interpretation of Right

    MORALIndividualPersonal Theology/Morality/Conscience interprets what is right

  • *Interpretation of Right

    MORALLEGALIndividualPersonal Theology/Morality/Conscience interprets what is right

  • *Interpretation of Right

    MORALLEGALIndividualPersonal Theology/Morality/Conscience interprets what is right

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

  • *Interpretation of Right

    MORALLEGAL PROFESSIONAL ETHICSRisk results from disagreement in interpretation

  • *Supervisory Issues

  • *Supervisory IssuesSupervisors 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.

  • *Questions?

    *******1 communications made as a normal act of religion or as a matter of conscience2 To a Chaplain or Chaplains Aide3 Includes passing on a message to intended recipients *A chaplain or chaplain assistant may NOT disclose the content of privileged communication without the express consent, preferably in writing, of the person to whom the privilege belongs. (Military rule of evidence 503 and AR 165-1 discuss the nature and scope of the privilege more fully).**Not calling it confidential anymore. It is Privileged communications and sensitive information**For example, AR 608-18, Appendix D, para D-1, provides that the law applicable in a state court will determine the existence and scope of the privilege as it relates to testimony regarding child abuse.

    *When a legal obligation to disclose information exists, relying on the tenets of ones faith, ordination vows, or conscience to prevent disclosure may result in punitive or adverse administrative action.*Situations may arise where disclosure of communications by chaplains and chaplain assistants is not provided by the rules of evidence or by the statute, or is not clear from current court decisions. In cases of this kind, chaplains are advised to seek legal counsel from the Staff Judge Advocate or policy guidance from the Office of the Chief of Chaplains (OCCH).

    **Lesser Class of Information*Treat in the same fashion as Privileged Communications **In appropriate cases, such information should be disclosed (e.g., the planned commission of crimes).

    In addition to guidance from the supervisory chain of command, a chaplain should seek legal advice.*There is no legal impediment to disclosure. Chaplains who refuse to disclose Sensitive Information when required to do so may be subject to punitive and adverse administrative action.*****3. Since the appellant had revealed h