De'Udy v. De'Udy
495 N.Y.S.2d 616, 130 Misc.2d 168, 1985 N.Y. Misc. LEXIS 3157 (1985)
Rule of Law:
In New York, the clergy-penitent privilege (CPLR 4505) belongs solely to the communicant, not the clergyman, and therefore, a clergyman cannot assert an independent privilege against disclosure when both parties who confided in him have expressly waived that privilege in open court.
Facts:
- In September 1982, the husband and wife married in Oyster Bay, New York, with Reverend Dr. Richard W. Reifsnyder officiating.
- In 1983, marital discord arose between the husband and wife.
- Both the husband and wife separately sought marital guidance and spiritual counsel from Reverend Dr. Richard W. Reifsnyder, their church pastor.
- During these counseling sessions, both parties confided deeply and privately in the clergyman, sharing information critical for the counseling's success.
- The marital dispute was not resolved by the counseling.
- The husband subsequently commenced an action for divorce against the wife on grounds of cruel and inhuman treatment.
- The wife sought testimony from Dr. Reifsnyder concerning statements or admissions against the husband's interest that may have been made during his sessions with the reverend.
Procedural Posture:
- Plaintiff husband commenced an action for divorce against defendant wife on the grounds of cruel and inhuman treatment.
- Defendant wife served a subpoena upon Reverend Dr. Richard W. Reifsnyder, the parties' spiritual advisor, seeking his testimony.
- Reverend Dr. Richard W. Reifsnyder moved, by an order to show cause, to quash the subpoena, asserting an independent privilege against disclosure.
- The trial court initially ruled that for the witness to be allowed to testify, both the husband and wife would be required to waive their respective privilege, as he had counseled both parties.
- Following this ruling, both parties, in open court and with advice of counsel, separately declared their waiver of the privilege existing between themselves and Reverend Reifsnyder.
- The minister’s personal attorney was then permitted to argue against the court directing the witness to testify, asserting the clergyman's independent privilege.
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Issue:
Does a clergyman who has counseled both a husband and wife acquire an independent privilege against disclosing information acquired during those sessions, despite an express waiver of the privilege by both parties in open court?
Opinions:
Majority - Eli Wager, J.
No, a clergyman does not acquire an independent privilege against disclosure of confidential communications when both parties have waived the privilege. The court reasoned that, at common law, no clergy-penitent privilege existed; it is a statutory creation. New York's CPLR 4505 explicitly states that the privilege belongs to the 'person confessing or confiding' and that a clergyman 'shall not be allowed' to disclose unless that person waives the privilege. This language makes it clear that the communicant is the holder of the privilege, not the clergyman. The court referenced the proposed New York Code of Evidence, which, though not yet enacted, also designated the 'penitent' as the holder, affirming this interpretation. The court distinguished New York law from statutes in other states (like California and Illinois) which explicitly grant an independent privilege to the clergy. Since both the husband and wife in this case expressly waived their privilege, the information was no longer statutorily protected, compelling the clergyman to testify despite his personal conviction that his role would be abused.
Analysis:
This case clarifies the scope and holder of the clergy-penitent privilege under New York CPLR 4505, establishing that the privilege is for the benefit of the communicant, not the clergy. It underscores the principle that statutory privileges are narrowly construed and emphasizes that the absence of explicit statutory language granting an independent clergy privilege means none exists. This ruling limits a clergyman's ability to refuse testimony when communicants waive their privilege, potentially impacting marital counseling where a perceived independent privilege by the clergy might encourage more candid disclosure, but also ensuring that relevant information is available in litigation when the privilege holders consent.
