Dealing with law enforcement, whether officers or prosecutors, is a very intimidating experience. Unfortunately for the accused, this is a feature, not a flaw, of the American justice system. In an effort to allow law enforcement to investigate and, if necessary, punish individuals for committing crimes, society has effectively armed law enforcement with tactics that may seem harsh. However, the end result – taking a criminal off the streets, preventing him/her from committing a further crime – is why society allows such tactics.
Nevertheless, our justice system also allows for rights for the criminally accused, and retaining the services of an experienced criminal defense attorney is the best and most effective protector of these rights. Part of the collection of rights available to criminal defendants is the ability to block certain testimony at trial as privileged from disclosure.
One prime example is the confessional privilege. However, a State Senator is introducing a bill hoping to abolish this established right, effectively quashing a long-held legal tradition rooted in the common law. A discussion of the confessional privilege, and the current law in the California Legislature, will follow below.
Senate Bill 360
As mentioned above, an effort is afoot to eliminate the confessional privilege, albeit only in cases involving child abuse or neglect. Current State law, per the Child Abuse and Neglect Reporting Act, requires certain individuals, including clergy, to report to authorities whenever they, in their professional capacity, have knowledge of or observe a child whom the cleric knows or reasonably suspects has been the victim of child abuse or neglect.
An exception is made when the cleric acquires this knowledge or reasonable suspicion during a penitential communication. SB 360 would eliminate that exception.
The Confessional Privilege, Historically
The confessional privilege is a traditional and contemporary rule of evidence that forbids judicial inquiry into certain communications (spoken or otherwise) between clergy and members of their congregation. This privilege, like others, is based on the recognition of certain communication as not subject to otherwise obligatory disclosure. For example, this often applies to communications between lawyers and clients.
Similar to the spousal communication privilege, the confessional privilege exists because society has deemed communication between a cleric and a confessor to be sacrosanct, and above reproach. If, for example, a husband could not confide in his wife without fear of reprisal, the marriage would lose any semblance of trust and, in many cases, fail. In a similar way, the relationship an individual has with leaders in his/her church is granted a level of trust and honor that exempts it from use at trial. Failure to protect this communication would almost certainly result in fewer confessions and the loss of important societal support for many.
It should be noted that this privilege is not completely similar to another form of privileged communication – the attorney-client privilege. The purpose of that privilege is so that a client can receive the best possible legal defense (another time-honored tradition of our legal system). To require an attorney to report communications from his/her client would necessarily mean that the client would have to withhold information from the attorney, information that could exonerate him/her from the charges against him/her.
Speak to a Criminal Defense Attorney
If you have recently been arrested, or are facing an upcoming criminal trial, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. It is never wise to attempt to defend yourself against a criminal charge – even attorneys know this. Not only do prosecutors have many tools at their disposal, but they also have years of experience in convicting individuals.
The attorneys at our office can counter this experience. After an analysis of the circumstances of your crime, we will work to get you the best possible outcome. The attorneys here are available 24/7 to take your call. Contact the Los Angeles criminal defense firm today for an initial consultation.