The May/June article “Breaking Clergy Confidence” discussed a recent criminal case, People of Michigan v. Samuel Bragg. In that case, a Michigan trial judge ruled that Michigan’s clergy privilege law prohibited a Baptist pastor, John Vaprezsan, from testifying in court about Samuel Bragg’s alleged confession to sexually assaulting a minor. At the time the article was published, the case was pending appeal. However, the Michigan Court of Appeals subsequently issued its opinion and upheld the trial judge’s decision to bar the pastor’s testimony. View the court’s written opinion here.
This update summarizes some of the key points from the Court of Appeals’ opinion to help you understand the logic that courts use when deciding issues related to the clergy privilege
What Was the Purpose of Bragg’s Conversation with His Pastor?
Like most states, the Court of Appeals ruled that a conversation with a minister is privileged from disclosure under Michigan law only if it serves a religious function such as providing guidance, counseling, forgiveness, or discipline. Put another way, a conversation is not privileged if it is made with wholly secular purposes, such as seeking practical and legal, not spiritual, advice. The court also ruled that to be privileged, a communication must be made to a minister in his professional capacity. This means that a conversation with a minister is not privileged if made to the minister in his role as merely a relative, friend, or employer.
The Court of Appeals found that Bragg’s conversation with Pastor Vaprezsan served a religious function because it enabled Vaprezsan to provide guidance, counseling, forgiveness, and discipline to Bragg in Veprezsan’s role as a minister. In reaching this conclusion, the court considered several facts. First, Vaprezsan testified at a preliminary hearing that he “consoled” Bragg and counseled him as “a loving, brokenhearted minister.” Vaprezsan also explicitly stated that he “interrogate[d]” Bragg “in [his] role as a pastor.” Once Vaprezsan convinced Bragg to speak about the sexual assault, he prayed with Bragg. The Court even noted that Vaprezsan’s authority as pastor enabled him to summon Bragg and his mother to the church in order talk about the victim’s allegations against Bragg. The trio met inside the pastor’s office and they did not discuss any secular topics, but spoke only of the victim’s accusation that Bragg had committed a sin and criminal act.
Was Bragg’s Conversation with His Pastor Confidential?
In order to be privileged, a communication with a pastor must have been confidential. When asked at a preliminary hearing whether his conversation with Bragg would be considered confidential, Pastor Vaprezsan responded, “I’m sure it would.” When asked if he had shared the conversation with anyone other than the victim’s family and the police, Vaprezsan responded, “No. I didn’t, uh—no. That’s—that’s a private matter that I did not share, that I can recall, with anyone else. I don’t even share things like that with my wife.”
Regardless of the above facts indicating that the conversation was confidential, the prosecution argued that Bragg waived any right to keep the conversation confidential by allowing his mother to participate. However, the Court of Appeals disagreed. The court explained that the mere presence of a third person, by itself, does not destroy the confidential nature of a conversation with a pastor, especially when the third person is a close relative of the accused. The determining factor, according to the court, was Bragg’s intention to keep the conversation private. To determine Bragg’s intention, the court looked at several facts. For example, Pastor Vaprezsan, not Bragg, requested that Bragg’s mother attend the meeting. Bragg was a minor at the time of the meeting and his mother’s attendance could have been necessary to sustain him during the difficult conversation. In addition, the meeting was held behind closed doors late at night. Also, Bragg did not share the content of the conversation with anyone else. In fact, the court found no evidence that Bragg, or even Vaprezsan, believed the mother’s presence destroyed the confidentiality of their conversation. Altogether, the court found that these facts supported an understanding of confidentiality.
The court noted that Vaprezsan told the police and the victim’s family about the conversation. But the court also noted that only Bragg could waive the privilege under Michigan law, and Vaprezsan’s actions did not implicate a waiver by Bragg.
The Court of Appeals found that Bragg’s conversation with Pastor Veprezsan was confidential and privileged. Therefore, the court ruled that Vaprezsan could not testify at Bragg’s upcoming trial. However, prosecutors in the case are reportedly planning to appeal to the Michigan Supreme Court. Stay tuned for more updates.
The Clergy Privilege Laws of All 50 States
It is important that leaders of GARBC churches throughout the U.S. understand when their conversations are privileged. However, all 50 states have their own unique laws governing the clergy privilege. Even though the Bragg case is based on Michigan law, the Court of Appeals in that case was kind enough to list citations to the clergy privilege laws of all 50 states. For your convenience, that list is reproduced here.
(Alabama) Ala R Evid Rule 505; (Alaska) Alaska R Evid 506; (Arizona) ARS § 13-4062; (Arkansas) ARE 505; (California) Cal Evid Code §§ 917, 1033, 1034; (Colorado) Colo Rev Stat § 13-90-107; (Connecticut) Conn Gen State Ann § 52-146b; (Delaware) DRE 505; (Florida) Fla Stat ch. 90.505; (Georgia) Ga Code Ann § 24-9-22; (Hawaii) HRE 506; (Idaho) Idaho Code § 9-203; IRE 505; (Illinois) 735 Ill Comp Stat 5/8-803; (Indiana) Burns Ind Code Ann § 34-46-3-1; (Iowa) Iowa Code § 62.10(1); (Kansas) Kan Stat Ann § 60-429; (Kentucky) KRE Rule 505; (Louisiana) La Code Evid art 511; (Maine) Me R Evid 505; (Maryland) Md Code Ann, Cts & Jud Proc § 9-111; (Massachusetts) Mass Gen Laws ch 233, § 20A; (Michigan) Mich Comp Laws Ann § 600.2156 and § 767.5a(2); (Minnesota) Minn Stat § 595.02; (Mississippi) Miss R Evid Rule 505; (Missouri) Mo Rev Stat § 491.060; (Montana) Mont Code Ann § 26-1-804; (Nebraska) Neb Rev Stat § 27-506; (Nevada) Nev Rev Stat Ann 49.255; (New Hampshire) NH Rule of Evid 505; (New Jersey) NJ Stat § 2A:84A-23; (New Mexico) NM RE 11-506; (New York) NY CPLR 4505; (North Carolina) NC Gen Stat § 8-53.2; (North Dakota) NDR Ev Rule 505; (Ohio) Ohio Rev Code Ann § 2317.02; (Oklahoma) 12 Okla St § 2505; (Oregon) Or Rev Stat § 40.260; (Pennsylvania) 42 Pa Cons Stat § 5943; (Rhode Island) RI Gen Laws § 9-17-23; (South Carolina) SC Code Ann § 19-11-90; (South Dakota) SD Codified Laws §§ 19-13-16, 19-13-17; (Tennessee) Tenn Code Ann § 24-1-206; (Texas) Tex Evid R 505; (Utah) Utah Code Ann § 78B-1-137, Utah R Evid Rule 503; (Vermont) VRE 505; (Virginia) Va Code Ann § 8.01-400; (Washington) Wash Rev Code § 5.60.060; (West Virginia) W Va Code § 48-1-301; (Wisconsin) Wis Stat § 905.06; (Wyoming) Wyo Stat Ann § 1-12-101
David M. Gower is an attorney with the law firm DeBlasio Law Group, LLC in Oak Brook, Ill. He is licensed to practice law in the state of Illinois, the U.S. District Court for the Northern District of Illinois, and the U.S. Court of Appeals for the Seventh Circuit. He is the son of David Gower, former editor of the Baptist Bulletin. This article is for informational purposes only and is not legal advice.
- Go back to original article, “Breaking Clergy Confidence”