§ 41.01   Introduction  [595]

 

There are numerous other privileges.  Two of the most important are the clergy-penitent and journalist privileges.

 

§ 41.02   Clergy-Penitent Privilege  [595-98]

 

Every jurisdiction recognizes a clergyman-penitent privilege.  The proposed federal rule made the communicant the holder of the privilege.  Some state statutes permit the clergy member to refuse to testify even when the penitent has expressly consented, if “the disclosure of the information is in violation of his sacred trust.”  First Amendment Free Exercise issues obviously are implicated in this context. 

 

The communication must be made for the purpose of obtaining spiritual guidance; consultations for other reasons do not fall within the privilege.  The modern privilege is not limited to “confessions” in the doctrinal religious sense.  Like other communication privileges, the privilege requires confidentiality, and the presence of a third party cuts against an intent of confidentiality.

 

§ 41.02   Journalist’s Privilege  [598-99]

 

Numerous states recognize a journalist’s privilege, which is intended to encourage the flow of information to newspapers and the electronic media.  The privilege is limited to the identity of the source.  In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that the First Amendment guarantee of freedom of the press did not require the recognition of a journalist’s privilege.  However, a number of federal courts, focusing on Justice Powell’s concurring opinion in Branzburg, have recognized a qualified journalist’s privilege.  This qualified privilege requires a balancing of interests, which in criminal cases may implicate the defendant’s right to a fair trial.  Other courts have rejected even this qualified privilege.

 

§ 41.03   Miscellaneous Privileges [600]

 

New privileges are always being proposed.  Federal courts have rejected an academic peer-review privilege and an accountant’s privilege.  Some have recognized a privilege for critical self-analysis, at least under limited circumstances.