(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 12, 1993 -- Decided May 12, 1994
GARIBALDI, J., writing for a majority of the Court.
The issues on appeal are: 1) whether the marital-communications privilege prevents the admission of
of inculpatory evidence obtained by a third person; and 2) who holds the priest-penitent privilege.
In 1975, Craig Szemple shot a sixteen-year-old boy to death. Szemple was charged in Morris County
with first-degree murder, unlawful possession of a handgun, and murder while armed with that handgun.
After the State had rested its case in the murder trial, it sought permission to reopen to present two
admissions of guilt that Szemple had allegedly made. The first admission was contained in a letter written to
Szemple's wife that her father had inadvertently discovered and kept without his daughter's permission. The
second admission was a confession of guilt Szemple had made while in jail to a Minister of Visitation, Paul
Bischoff. After an Evid. Rule 8 hearing, the trial court determined that neither the marital-communication
privilege nor the priest-penitent privilege protected the admissions. The court granted the State's motion to
reopen its case to present the two admissions. The court denied Szemple's motion for a mistrial.
On appeal, the Appellate Division reversed the trial court's denial of Szemple's motion for mistrial
and granted leave to appeal to review the trial court's ruling that the evidentiary privileges did not apply. A
majority of the Appellate Division upheld the trial court's evidentiary rulings. One judge dissented. The
Supreme Court granted leave to appeal based on the dissent below.
HELD: The marital-communications privilege does not prevent the admission of an inculpatory letter sent by
Craig Szemple to his wife that was then taken by a third person without the wife's permission.
Furthermore, in view of the legislative history of the priest-penitent privilege in New Jersey and its
interpretation by the Jacobs Committee and Bigelow Commission, the clergyperson is the sole
holder of the priest-penitent privilege; the decision whether to reveal a confidential communication
rests with the clergyperson.
1. At the time of Szemple's trial, Evid. Rule 28, the marital-communications privilege, provided that no
person can disclose any communication made in confidence between that person and his or her spouse unless
both consent to the disclosure. (Evid. Rule 28 has since been renumbered Evid. Rule 509.) The marital-communication privilege is not attached to the communication itself, but is personal to the spouses.
Involvement of a third party destroys the privilege. There is no reason to distinguish between an oral or
written communication. The privilege does not apply to a written communication between spouses that
comes into the possession of a third party without the consent of the recipient spouse. (pp. 7-14)
2. The dissenting member of the Appellate Division panel found that for the privilege to be destroyed,
the third party would have to discover the communication unwittingly or unintentionally. However, the
"inadvertency" requirement applies to the spouse who receives the communication, not to the third-party
discoverer. Inadvertence ensures that the spouse could not unilaterally defeat the privilege by intentionally
allowing a writing to fall into the hands of a third party. Here, the confidential nature of Szemple's letter
was destroyed when the letter came into his father-in-law's possession. There is no evidence that his father-in-law obtained the letter through any involvement with Szemple's wife. Under the circumstances, the trial
court properly concluded that the letter was not privileged and, therefore, was properly admitted. (pp. 14-17)
3. Evid. Rule 29, the priest-penitent privilege, enables a clergyperson or one authorized to perform
similar functions to avoid being compelled to disclose a confession or other confidential communication
made to him or her as part of his or her professional duties. (Evid. Rule 29 has since been renumbered
Evid. Rule 511.) However, Evid. Rule 37 permits the holder of an evidentiary privilege to waive that
privilege by disclosing the confidential communication or consenting to its disclosure. In this case, Mr.
Bischoff consented to the disclosure of Szemple's confession. The Court looks to the plain meaning of the
statute and/or the legislative intent to determine whether Mr. Bischoff alone may waive the privilege or
whether both the clergyperson and the penitent must waive the privilege before the clergyperson may testify
regarding a confidential communication. (pp. 17-19)
4. Because the plain meaning of the rule is not obvious or self-evident, the statute must be construed in
a manner that effectuates the Legislature's intent. Based on its review of the origin of the priest-penitent
privilege and the history of the privilege in New Jersey, the Court concludes that Evid. Rule 29, the priest-penitent rule, confers a testimonial privilege only on clergypersons. They alone may elect to waive that
privilege in their sole discretion and within the dictates of their religious beliefs. The penitent need not
consent to the disclosure of a confession, confidential communication, or confidential relation in order for
the clergyperson to waive the privilege. The plain waiver language of the statute, the interpretation of the
statute by the Jacobs Committee and Bigelow Commission, both commissioned to study evidentiary rules,
including Evid. Rule 29, and the origin of the privilege are persuasive evidence that the clergyperson is the
only person who can waive the privilege. Moreover, when the Legislature amended the privilege in 1981, it
did not overrule the interpretation in caselaw that the cleric alone holds the privilege. (pp. 20-32)
5. Szemple contends that the determination that only the clergyperson holds the privilege renders the
statutory phrase "shall not be allowed" meaningless. The "shall not be allowed" language is most analogous
to the "may not testify" language used in states where no one may waive the privilege and the rule is more a
rule of competence to testify rather than of privilege. The privilege in New Jersey is expressly subject to
waiver; to ignore an express waiver in favor of the ambiguous phrase "shall not be allowed" would defeat the
Legislature's intent. The originating principle of the privilege was not concern for the penitent. Rather, the
concern was for the clergyperson's privilege from being compelled to disclose confidences in violation of his
or her religious vows. (pp. 32-35)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE CLIFFORD, concurring, is of the view that Justice Jacobs and Judge Bigelow fully
understood the ramifications of the Jacobs Committee Report's comment that the penitent has no privilege.
The dissent's argument is nothing more than a red herring. Imposing on the priest alone the privilege and
the right of waiver does not dilute the "right to confide" or cause suffering or destroy sanctity or encourage
lurid storytelling. Priests keep their confidences of the confessional not because a secular law gives them the
privilege to do so but because the obligations to their church and their religious duty and function require it
of them. Justice Clifford notes that if the Court has misperceived the legislative intent, the Legislature can
act accordingly.
JUSTICE O'HERN, dissenting, in which the CHIEF JUSTICE WILENTZ and JUSTICE STEIN
join, is of the view that the Legislature did not intend nor did the Rules of Evidence contemplate that a
spiritual advisor should be free to disclose a confidential spiritual conversation. Justice O'Hern reaches that
conclusion because 1) an overwhelming majority of other jurisdictions construe the privilege as a bar to the
revelation of a confession by the cleric, 2) that New Jersey law has never recognized a cleric's right to waive
the seal of confession, and 3) State committees on evidence would never have recommended so fundamental
a change in the doctrine without explicitly discussing the issue. Because Justice O'Hern believes that the
evidentiary privilege belongs to both the cleric and the penitent, a conviction based on disclosure of the
confidential spiritual communication cannot be sustained.
JUSTICES CLIFFORD, HANDLER, and POLLOCK join in JUSTICE GARIBALDI's opinion.
JUSTICE CLIFFORD filed a separate concurring opinion. JUSTICE O'HERN filed a separate dissenting
opinion in which CHIEF JUSTICE WILENTZ and JUSTICE STEIN join.
SUPREME COURT OF NEW JERSEY
A-
25 September Term l993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CRAIG SZEMPLE,
Defendant-Appellant.
__________________________
Argued October l2, l993 -- Decided May 12, 1994
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
263 N.J. Super. 98 (l993).
George T. Daggett argued the cause for
appellant (Daggett & Kraemer, attorneys).
Joseph Connor, Jr., Assistant Prosecutor,
argued the cause for respondent (W. Michael
Murphy, Jr., Morris County Prosecutor,
attorneys).
J. Michael Blake, Assistant Deputy Public
Defender, argued the cause for amicus curiae
Public Defender (Zulima V. Farber, Public
Defender, attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Fred DeVesa, Acting
Attorney General, attorney).
Ronald K. Chen and Sally Frank submitted
briefs on behalf of amicus curiae The
American Civil Liberties Union of New Jersey.
Alan L. Zegas submitted a letter brief on
behalf of amicus curiae Association of
Criminal Defense Lawyers of New Jersey.
The opinion of the Court was delivered by
GARIBALDI, J.
This case involves the reach of two separate evidentiary
privileges: the marital-communications privilege and the priest-penitent privilege. First, we address whether the marital
communications privilege, Evidence Rule 28,See footnote 1 N.J.S.A. 2A:84A-22,
prevents the admission of an inculpatory letter that defendant
sent to his wife and that the wife's father then took without
permission. Second, we consider who holds the priest-penitent
privilege, Evidence Rule 29, N.J.S.A. 2A:84A-23. If the
clergyperson or the penitent, alone, holds the privilege, then
that person can waive it unilaterally. If, however, both the
clergyperson and the penitent hold the privilege, both must
consent to its waiver.
Defendant, Craig Szemple, was charged in Morris County with first-degree murder, unlawful possession of a thirty-two caliber handgun, and murder while armed with that handgun. He was also indicted for murder in Warren and Hudson Counties. The Morris
County indictment alleged that defendant shot a sixteen-year-old
boy, Nicholas Miroff, to death in l975. After the State had
rested its case in the jury trial on that charge, it sought to
reopen its case to present two admissions of guilt that defendant
had allegedly made. The first admission was contained in a
letter written to his wife that her father had discovered. The
second admission was a confession defendant had made while in
jail to a Minister of Visitation.
After an Evidence Rule 8 hearing, the trial court determined
that neither the marital-communications privilege nor the priest-penitent privilege protected the admissions. The trial court
granted the State's motion to reopen its case to present the two
admissions. Rejecting defendant's argument that the new evidence
caused unfair surprise, the trial court denied defendant's motion
for a mistrial.
On interlocutory appeal, the Appellate Division reversed the
trial court's denial of defendant's motion for mistrial and
granted leave to appeal to review the trial court's ruling that
the evidentiary privileges did not apply. The Appellate
Division, with one judge dissenting, upheld the trial court's
evidentiary rulings.
263 N.J. Super. 98 (l993). We granted
leave to appeal pursuant to Rule 2:2-1(a)(2) and now affirm.
The facts related to defendant's claim of the marital-communication privilege are as follows. Early in l99l, after defendant was arrested, Theresa Boyle, defendant's wife, asked her father, Michael Boyle, to help her move. In the process of sorting through numerous boxes that Theresa had packed, Michael Boyle discovered some folded sheets of white paper that he identified as a letter from defendant to Theresa. He "said to [himself,] I don't know nothing about this guy and this looks like its going to be something for me to look at," so he kept the letter. At that time Mr. Boyle was worried about his daughter and did not know anything about defendant, other than that he was in jail on a murder charge. Mr. Boyle concealed the letter from his daughter by sticking it under his shirt. He carried it out to his pickup truck and placed it there in a plastic bag.
Mr. Boyle took the letter back with him to his home in North Carolina and "forgot about it." Several weeks later, he discovered the letter and finally read it. After deciphering defendant's handwriting, Mr. Boyle came to the conclusion that the letter was "dynamite," specifically page eight, which contained the following description of a murder that defendant had committed:
My first hit was an act of treachery, the ultimate deceit. 4 Bullets in the back l in the neck and a broken promise made at the parting of the oncoming river. I never did tell his mother what happened to him. The
second I pulled that trigger, I became larger
than death to all of my associates.
Mr. Boyle returned to New Jersey several months later, and gave a
copy of the letter to his former wife, Theresa Boyle's mother.
Mr. Boyle's ex-wife communicated with an attorney to inquire
whether the letter would be helpful to the prosecutor, but was
informed that the prosecutor did not need the letter because the
State already had enough evidence against defendant. Based on
that advice, neither Mr. Boyle nor his ex-wife disclosed the
existence of the letter to the authorities.
Almost a year later, Mr. Boyle asked his daughter about the
status of defendant's cases. When his daughter told him the
charges were being dropped, Mr. Boyle drove to New Jersey from
North Carolina and gave the letter to the Morris County
prosecutor's office. Mr. Boyle had never told his daughter that
he had the letter. When Theresa Boyle discovered he had the
letter and had given it to the prosecutor, she became very angry.
He testified that his "daughter won't have nothing to do with
[Michael Boyle] now."
The prosecutor presented evidence that tied the statement in
the letter to the murder. The trial court ruled that the letter
was admissible. Although the letter would have been privileged
under Evidence Rule 28 if Theresa had retained possession, the
court held that the privilege no longer applied once Mr. Boyle,
without Theresa's aid, consent, or connivance, obtained
possession of the letter.
The facts regarding the priest-penitent privilege are as follows. While in prison, defendant confessed his guilt to Paul Bischoff, a Minister of Visitation. Mr. Bischoff, a retired Newark firefighter, served with Trinity Baptist Church in Montville. He became a deacon in the church in l974. According to Mr. Bischoff, the church elders, feeling that he had the gift to minister to those of God's people who are in need of the gospel, ordained him as a Minister of Visitation. The elders signed a "certificate of ordination" recognizing Mr. Bischoff's position. As a Minister of Visitation, Mr. Bischoff visited members of the congregation and persons in hospitals, psychiatric wards, penitentiaries, and nursing homes, to comfort them and discuss their religious needs and concerns.
In his capacity as a visiting minister Bischoff met with defendant in jail about nineteen times between April l99l and January l992. In October l99l, defendant admitted to Bischoff that he had killed "not one but three." Bischoff, who had known defendant's family for at least twelve years, reported defendant's admission to defendant's sister and brother-in-law. One of defendant's family members related the admission to the prosecutor's office.
We begin our analysis by reviewing well-established principles regarding evidentiary privileges. As a general proposition, privileges are to be narrowly construed. United States v. Nixon, 4l 8 U.S. 683, 7l0, 94 S. Ct. 3090, 3l08, 4l L. Ed.2d l039, l065 (l974); State v. Schreiber, l 22 N.J. 579, 582-83 (l99l). That rule of construction stems from the fact that privileges "contravene the fundamental principle that `"the public . . . has a right to every man's evidence."'" Trammel v. United States, 445 U.S. 40, 50, l 00 S. Ct. 906, 912, 63 L. Ed 2d l86, l95 (l980) (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 730, 94 L. Ed. 884, 891 (1950)). They "are obstacles in the path of the normal trial objective of a search for ultimate truth." State v. Briley, 53 N.J. 498, 506 (1969); see also State v. Dyal, 97 N.J. 229, 237 (l984) (holding that because testimonial privilege "precludes admission of relevant evidence, it is restrictively construed"); State v. Bodtmann, 248 N.J. Super. l00, l0l (Law Div. l990) (noting that privilege that "obstructs the search for truth . . . must be construed restrictively").
Because privileges may often "undermine the search for truth in the administration of justice," Dyal, supra, 97 N.J. at 237, they are accepted only to the extent that they outweigh the public interest in the search for truth. Trammel, supra, 445 U.S. at 50, 100 S. Ct. at 912, 63 L. Ed 2d at l95. "They are
accepted only because in the particular area concerned, they are
regarded as serving a more important public interest than the
need for full disclosure." Briley, supra, 53 N.J. at 506. Thus,
privileges should always "be construed and applied in sensible
accommodation to the aim of a just result." Ibid.
The marital-communications privilege, Evidence Rule 28, N.J.S.A. 2A:84A-22, prevents disclosure by a spouse of confidential communications made during marriage except under specified circumstances. At the time of defendant's trial, Evidence Rule 28 provided in pertinent part:
No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure.
The Legislature amended the marital-communications privilege by Act of November l7, l992, L. l992, c. l42. Evid. R. 28, N.J.S.A. 2A:84A-22. The amendment substantially relaxes the privilege to permit disclosure of marital communication "in a criminal action or proceeding in which either spouse consents to the disclosure." (emphasis added). The amendment applies "to all criminal actions regardless of the date on which the offense was committed or the action initiated." Committee Statement to Senate, No. l055, L. l992, c. l42. Because defendant's wife did not consent to the letter's disclosure, the recent amendment is not directly
applicable. Nonetheless that amendment clearly demonstrates the
Legislature's intent to limit significantly the preclusive effect
of the marital-communications privilege.
The marital-communications privilege has long been
recognized as a protector of marital confidences. It stems from
the strong public policy of encouraging free and uninhibited
communication between spouses, and, consequently, of protecting
the sanctity and tranquility of marriage. See Wolfle v. United
States, 29l U.S. 7, l4,
54 S. Ct. 279, 280,
78 L. Ed. 6l7, 620
(l934); Blau v. United States,
340 U.S. 332, 333, 7l S. Ct. 30l,
302,
95 L. Ed. 306, 308 (l95l); Rozycki v. Peley, l
99 N.J. Super. 57l, 579 (Law Div. l984); 8 Wigmore on Evidence § 2332, at 642
(McNaughton rev. l96l); cf. State v. Young,
97 N.J.L. 50l, 505
(l922) (discussing requirement that communication loses
privileged nature if overheard by third party).
Like other evidentiary privileges, however, "since the
[marital communications] privilege has as its only effect the
suppression of relevant evidence, its scope should be confined as
narrowly as is consistent with the reasonable protection of
marital communications." l McCormick on Evidence § 82, at 303
(J.S. Strong, 4th ed. l992). As a result, the marital
communications privilege does not apply to a written
communication between spouses that comes into the possession of a
third party without the consent of the recipient spouse. See
Wigmore on Evidence, supra, § 2339, at 668 (stating that general
rule is that if written communications "were obtained
surreptiously or otherwise without the addressee's consent, the
privilege should cease").
One well-known commentator on the law of evidence expresses
the rule as follows:
The weight of decision seems to support the
view that the privilege does not protect
against the testimony of third persons who
have overheard (either accidentally or by
eavesdropping) an oral communication between
husband and wife, or who have secured
possession or learned the contents of a
letter from one spouse to another by
interception, or through loss or misdelivery
by the custodian. There is one important
qualification which many if not most of the
cases announce, namely that the privilege
will not be lost if the eavesdropping, or the
delivery or disclosure of the letter be due
to the betrayal or connivance of the spouse
to whom the message is directed.
[l McCormick on Evidence, supra, § 82, at
302-03 (footnotes omitted).]
See also 8l Am. Jur.2d Witnesses § 330 (l992) (stating that
letters between husband and wife disclosing anything of
confidential nature are privileged "at least as long as they
remain in the hands of either party to the marriage"); 97 C.J.S.
Witnesses § 270(b)(2) (l957) (stating that under most
authorities, "confidential written communication between husband
and wife * * * loses its privileged character on coming into the
hands of third person"). The privilege is personal to the
spouses, and does not apply to third parties. Young, supra, 97
N.J.L. at 505.
The majority of jurisdictions hold that the marital
communications privilege does not apply to a written
communication obtained by a third person without the other
spouse's aid and consent. This view comports with the goal of
narrowly construing privileges that preclude relevant evidence
and with New Jersey precedent.
No New Jersey court has held specifically that the marital
communications privilege is inapplicable to a written
communication obtained by a third person. Nonetheless, New
Jersey law has long held that the marital-communications
privilege does not prohibit disclosure by third parties who
overhear spousal conversations. In State v. Laudisi,
86 N.J.L. 230 (l9l4), the Court of Errors and Appeals refused to apply the
privilege to an accusation by one spouse against another in the
presence of a neighbor. There, defendant objected to the
admission of testimony by the neighbor concerning his wife's
accusation and his reply on the grounds that it fell within the
marital-communications privilege. The Court disagreed, holding
that the presence of the third person vitiated the confidential
nature of the communication. Id. at 23l.
Similarly, in Young, supra,
97 N.J.L. 50l, the Court of
Errors and Appeals refused to apply the privilege to a
communication that the defendant had transmitted to a third
person with the instruction that it be communicated to the
defendant's wife. The court reasoned that the communication to
the third party destroyed the confidentiality of the
communication:
The privilege is personal to husband and
wife. A third person who happened to
overhear a personal conversation between
husband and wife may be examined as to such
conversation. A letter, also written
confidentially by a husband to a wife, is
admissible against the husband when brought
to court by a third party.
[Id. at 505 (internal quotations and
citations omitted) (emphasis added).]
In State v. Brown, ll
3 N.J. Super. 348 (l97l), the Appellate
Division refused to extend the privilege to cover a conversation
between a father and his son which the mother overheard. In
addition to failing to qualify for the privilege because it was
not an inter-spousal communication, the conversation was deemed
to be not confidential due to the presence of the third party.
Id. at 353.
Finally, in State v. Sidoti, l
34 N.J. Super. 426 (l975), the
Appellate Division held the marital-communications privilege
inapplicable to a communication between a husband and a wife
because a third person had overheard it.
Those cases establish that the involvement of a third party
vitiates the requirement of confidentiality. The privilege does
not attach to the communication itself, but is personal to the
spouses. See Young, supra, 97 N.J.L. at 505. We see no
important distinction in that regard between an oral and a
written communication. The confidential nature of a letter is
destroyed just as readily when a third party obtains it as when
someone overhears an oral communication.
Cases from other jurisdictions support that position. In
Zimmerman v. State,
750 S.W 2d l94 (Tex. Crim. App. l988), a
capital-murder case, the defendant, while in custody, sent to his
wife, Sherry Zimmerman, a letter that contained a confession to a
murder.
750 S.W 2d at l95. Mrs. Zimmerman apparently kept that
and other letters sent by the defendant in her dresser drawer.
The defendant's mother-in-law, Viola Cobb, while admittedly
without permission looking for evidence of defendant's guilt,
took four letters out of her daughter's dresser drawer, read
them, and then mailed them to her other daughter, Sandra Abner,
who resided in Houston, Texas. Id. at l97. Ms. Cobb never
discussed the contents of the purloined letters with Mrs.
Zimmerman and fully intended that the letters would come into the
possession of the proper authorities when she mailed them to Ms.
Abner. Ibid.
In holding that the letter containing the confession was not
a privileged marital communication, Zimmerman recognized the
analogy between oral marital communications overheard by a third
party and written communications obtained by third persons. Id.
at l99-200. The Zimmerman court adopted the rule that a Kansas
Supreme Court opinion had annunciated that "'where a written
confidential communication between a husband and wife falls into
the hands of a third party inadvertently and without the consent
or connivance of the addressee-spouse, the third party should be
permitted to testify as to the communication.'" Id. at 200
(quoting State v. Myers, 640 P.2d l245, l248 (l982). The court
in Myers also observed that "[s]uch a rule, as applied to written
communications, is entirely consistent with the rule, almost
universally accepted, that oral statements of one spouse to
another are admissible when overheard by a third person even
without the knowledge or consent of the spouses." 640 P.2d at
l249.
The Myers Court held that confidential letters that the
defendant had written to his wife, found under the mattress of a
bed three months after the defendant's wife had vacated the
premises, were not privileged under that rule. Id. at l248. The
court concluded that "the public interest would be best served by
the requirement that all facts relevant to a litigated issue
should be available to the court to the end that truth may be
ascertained." Ibid.; see also Commonwealth v. Skibicki,
586 A.2d 446, 449-50 (Pa. Super. Ct.) (holding that letter from defendant
to wife found by used car salesman in glove compartment of car
recently traded by defendant's mother-in-law was not privileged),
appeal denied,
598 A.2d 993 (Pa. l991).
Defendant asserts that the privilege is lost only when the
written communication was discovered "inadvertently" (meaning
heedlessly or unintentionally). Judge Stein accepted that view
in his dissent in the Appellate Division. In Judge Stein's
opinion, the "inadvertency" requirement applies to the third
party discoverer of the confidential communication. See 263 N.J.
Super. at l22. Under his approach, the privilege would apply if
the third party intended to discover the confidential
communication, regardless of whether one of the spouses intended
that it be discovered. For the privilege to be destroyed the
third party would have to discover the communication unwittingly
or unintentionally.
That analysis applies the "inadvertency" requirement to the
wrong person. "Inadvertent" refers to the spouse who receives
the written communication, not to the third-party discoverer.
The "inadvertency" requirement was meant to ensure that a spouse
could not unilaterally defeat the privilege by intentionally or
through some connivance or collusion with a third party allow a
writing to fall into the hands of a third party. It does not
apply to the conduct of the third-party discoverer.
We also note that the recent amendment to Evidence Rule 28,
that permits a spouse unilaterally to defeat the privilege,
diminishes the need for the "inadvertent discovery" rule. Now, a
spouse who wants confidential marriage communications to be
revealed need not orchestrate a situation in which those
communications are revealed to a third party. The spouse can
simply disclose the information directly to the court.
We agree with the lower courts that the confidential nature
of defendant's letter was destroyed when the letter came into Mr.
Boyle's possession. The record contains no evidence that even
suggests that Mr. Boyle obtained the letter through any
involvement of defendant's wife. To the contrary, defendant's
wife did not discover that her father had the letter until more
than a year after he had removed it from her house.
Both defendant and Theresa Boyle failed to take adequate
precautions to prevent the letter from being found. Theresa
Boyle inadvertently left the letter in a box that she asked her
father to move. In the course of moving the boxes Mr. Boyle
discovered the letter. No evidence exists that defendant ever
asked his wife to destroy the letter or to keep it in a safe
place. When defendant wrote the letter, he knew or should have
known that a written communication may have a long life. Indeed,
the danger of a written communication falling into the hands of a
third party would appear to be more foreseeable than the danger
of an oral conversation being overheard. To obtain the benefit
of the privilege, spouses must take the precautions necessary to
ensure that inter-spousal communications be kept confidential.
When they fail to do so, the privilege is lost.
Moreover, the theory of the dissent below rests on the
unfounded assertion that Mr. Boyle "surreptitiously appropriated"
the letter. 263 N.J. Super. at l22 (Stein, J.A.D., dissenting).
That finding is not supported by the evidence. Mr. Boyle
discovered the letter in the course of assisting his daughter's
move. He did not seek out the letter or intend to discover
confidential communications. He happened on the letter. His
discovery was unplanned. Although the act of concealing and
removing the letter, once found, was clearly intentional, its
discovery was not.
We hold, therefore, that under the circumstances in this
case, the trial court properly concluded that the letter was not
privileged and hence was properly admitted.
Commonly referred to as the priest-penitent privilege, Evidence Rule 29, N.J.S.A. 2A:84A-23, provides:
Subject to Rule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role.
Evidence Rule 37, now Evidence Rule 530, N.J.S.A. 2A:84A-29, permits the holder of an evidentiary privilege to waive that privilege by disclosing the confidential communication or consenting to its disclosure. There is no doubt that Mr. Bischoff consented to the disclosure of the defendant's
confession.See footnote 2 The critical issue is whether the clergyperson
alone may waive the privilege pursuant to Evidence Rule 37, or
whether both the clergyperson and the penitent must waive the
privilege before the clergyperson may testify regarding the
confidential communication. In other words, we must determine
who holds the privilege for the purpose of waiving the privilege.
Construction of any statute necessarily begins with a
consideration of its plain language. Town of Morristown v.
Woman's Club, l
24 N.J. 605, 6l0 (l99l); Kimmelman v. Henkels &
McCoy, Inc., l08 N.J. l23, l28 (l987). Evidence Rule 29 does not
specify whether the clergyperson, the penitent, or both hold the
privilege. The priest-penitent privilege, however, is directed
toward the clergyperson who shall not be allowed or compelled to
disclose a confidential communication made to him or her in his
or her professional character. Defendant argues that the
inclusion of the phrase "shall not be allowed . . . to disclose"
indicates that the penitent, as well as the clergyperson, must
consent to the disclosure to have a valid waiver of the
privilege. According to defendant's argument, the phrase refers
to the penitent "allowing" the clergyperson to reveal the
confidential communication.
The Appellate Division determined that the word "allow" may
instead "refer to the court and/or State 'allowing' a
clergyperson to breach his or her vow of confidentiality by
considering such a person a competent witness to disclose a
confidential communication." 263 N.J. Super. at l07. Those
differing interpretations demonstrate that the phrase's meaning
is not obvious or self-evident on its face.
When a statute is ambiguous, the Court must construe the
statute in a way that will best effectuate the Legislature's
intent. Cedar Cove, Inc. v. Stanzione, l
22 N.J. 202, 2l3 (l99l);
Accountemps Div. v. Birch Free Group, ll
5 N.J. 6l4, 622 (l989).
Although we are mindful that a construction that renders any part
of a statute superfluous or meaningless is to be avoided, State
v. Reynolds, l
24 N.J. 559, 564 (l99l); Medical Soc'y v.
Department of Law & Public Safety, l20 N.J. l8, 26-27 (l990), we
are equally mindful that the general intention of the statute
controls interpretation of its parts. Waterfront Comm'n v.
Mercedes-Benz of N. Am., Inc.,
99 N.J. 402, 4l4 (l985).
Where an ambiguity exists in the language of the statute, a
court may rely upon extrinsic aids to resolve the ambiguity.
State v. Sutton, l
32 N.J. 47l, 479 (l993); see also New Jersey
Civil Serv. Ass'n v. State,
88 N.J. 605, 6l5 (l982) (stating that
such materials may serve as aids but may not be used to give a
meaning not fairly within a statute). "Courts may . . . freely
refer to legislative history and contemporaneous construction for
whatever aid they may furnish in ascertaining the true intent of
the legislation." New Jersey Pharmaceutical Ass'n v. Furman, 33
N.J. l2l, l30 (l960). In addition, "the reports of special
committees or commissions appointed to study and suggest
legislation are considered valuable aids" in seeking the intent
of the Legislature. Shapiro v. Essex County Bd. of Freeholders,
l
77 N.J. Super. 87, 93 (Law Div. l980), aff'd,
91 N.J. 430
(1982); see 2A Sutherland, Statutory Construction, § 48.ll.
Based on our review of the origin of the priest-penitent privilege and the history of the privilege in New Jersey, we conclude that Evidence Rule 29 confers a testimonial privilege only on clergypersons. They alone may elect to waive that privilege in their sole discretion and within the dictates of their religious beliefs. The penitent need not consent to the disclosure of a confession, confidential communication, or confidential relation in order for the clergyperson to waive the privilege. Such a conclusion best effectuates the goals of the Legislature.
The priest-penitent privilege originated with the seal of confession. Under the Code of Canon Law of the Roman Catholic
Church for a "confessor in any way to betray a penitent* * *" was
a crime. Raymond C. O'Brien and Michael T. Flannery, The Pending
Gauntlet to Free Exercise: Mandating That Clergy Report Child
Abuse,
25 Loy. L.A. L. Rev. l, 3l (l99l) (hereinafter O'Brien and
Flannery). A confessor who directly violates the seal of
confession incurs an automatic excommunication reserved to the
Apostolic See. Id. at 3l. Traditionally, breaking the seal of
confession "has been one of the most severely penalized offenses
within the Code." Ibid. The sanctity of the confession was
recognized in English law from the Norman Conquest in l066 until
the English Reformation in the Sixteenth Century. After the
Reformation, hostility towards the Catholic Church in England
resulted in a refusal to recognize the privilege. See O'Brien
and Flannery, supra,
25 Loy. L.A. L. Rev. at 31-32; William A.
Cole, Religious Confidentiality and the Reporting of Child Abuse:
A Statutory and Constitutional Analysis, 21 Colum. J. L. & Soc.
Probs. 1, 19-20 (1987) (hereinafter Cole); Mary Harter Mitchell,
Must Clergy Tell? Child Abuse Reporting Requirements Versus
Clergy Privilege and Free Exercise of Religion, 7l Minn. L. Rev.
723, 736 (l987) (hereinafter Mitchell); Jacob M. Yellin, The
History and Current Status of the Clergy-Penitent Privilege, 23
Santa Clara L. Rev. 95, 95-108 (1983) (hereinafter Yellin); see
also In re Grand Jury Investigation, 9l
8 F.2d 374, 38l n.l0 (3rd
Cir. l99l) (sketching origins of privilege).
When this country was founded, therefore, the privilege did
not exist at common law. Accordingly, American courts required
that the privilege be conferred by statute. Where no privilege
existed, clergypersons were often compelled to testify despite
personal, moral, and religious objections. Yellin, supra, 23
Santa Clara L. Rev. at l07. Although the Roman Catholic Church
has the longest tradition of the sanctity of the confessional,
for many other Christian denominations their "sincere dedication
to secrecy is equally apparent." Cole, supra, 2l Colum. J. L. &
Soc. Probs. at l7. In the Episcopal Church, for example, the new
Book of Common Prayer's rite, "The Reconciliation of a Penitent,"
warns that the secrecy of a confession is morally absolute for
the confessor, and must under no circumstances be broken.
Violators are subject to church discipline. Ibid. The governing
body of the American Lutheran Church also has adopted a
resolution that the pastor hold inviolate and disclose to no one
the confessions and communications made to him as a pastor
without the specific consent of the person making the
communication. Similarly, the Presbyterian Church in the U.S.,
the United Presbyterian Church, and the American Baptist
Convention have adopted policy statements strongly affirming the
inviolability of religious confidentiality. Id. at l7-l8.
The prospect of clergy going to jail to comply with their
religious beliefs rather than disclosing a penitent's confession
resulted in various religious groups bringing pressure on state
legislatures to enact a clergyperson privilege. Thus, the origin
of the priest-penitent privilege as well as the moving force
behind the enactment of the statutory privilege was to protect
the clergyperson from being forced against his or her will to
reveal confidences. Yellin, supra, 23 Santa Clara L. Rev. at
l07. Now almost all states have clergyperson-penitent
privileges. Id. at l07-l0.
New Jersey did not recognize the privilege until it was
created by statute in l947. See State v. Morehous,
97 N.J.L. 285, 295 (E. & A. l922). By Act of June 20, l947, L. l947, c.
324, the Legislature enacted N.J.S.A. 2A:8l-9, which provided:
A clergyman, or other minister of any
religion, shall not be allowed or compelled
to disclose in any court, or to any public
officer, a confession made to him in his
professional character, or as a spiritual
advisor, or as a spiritual advisor in the
course of discipline enjoined by the rules or
practice of the religious body to which he
belongs or of the religion which he
professes.
Like its present-day equivalent, that precursor to Evidence Rule 29 did not identify the holder of the privilege. The Legislature enacted it under a subsection dealing with the competency of witnesses, and the subsection did not contain a provision subjecting it to waiver. On its face that original version of the priest-penitent privilege arguably could be no privilege at all, but rather a rule of competency. The plain meaning of the statute seems to suggest that a clergyperson is not competent to disclose in any court or to any public official confessions made
to him or her. It reads as an absolute ban on disclosure. See
Richard J. Biunno, Rules of Evidence, comment l and 2 on Evid. R.
29 (l993) (hereinafter Biunno) ("the thrust of the rule and the
original statute [was] that under no circumstances should a
religious figure be considered as a source of evidence of this
type"); Biunno, supra, comment l on Evid. R. 5ll (stating same).
The recommendations of the two committees commissioned to
study Evidence Rule 29, however, demonstrate that from its l947
enactment, the statute was intended as a privilege and not merely
as a rule of competency. In the early l950s, this Court
commissioned a committee to study the law of evidence and to make
recommendations. That committee, the Committee on the Revision
of the Law of Evidence (hereinafter the Jacobs Committee), issued
its report in l955. The report took the form of a comparison
between the then-existing New Jersey Evidentiary statutes and the
Uniform Rules of Evidence that had been developed by the National
Conference of Commissioners on Uniform State Laws. Because the
Uniform Rules met with wide acceptance, the Jacobs Committee
determined to use them as a base for its study. Report of the
Committee on the Revision of the Law of Evidence to the New
Jersey Supreme Court viii-ix (l955) (hereinafter the "Jacobs
Committee Report").
The Uniform Rule with respect to who has the power to waive
the priest-penitent privilege, reads as follows:
Rule 29. Priest-Penitent Privilege;
Definiton; Penitential Communications.
(2) A person, whether or not a party, has a
privilege to refuse to disclose, and to
prevent a witness from disclosing a
communication if he claims the privilege and
the judge finds that (a) the communication
was a penitential communication and (b) the
witness is the penitent or the priest, and
(c) the claimant is the penitent, or the
priest making the claim on behalf of an
absent penitent.
The Drafters' comment to the rule stated that the "rule permits
either priest, broadly defined, or penitent to claim the
privilege." Jacobs Committee Report, supra, at 76.
The Jacobs Committee advised against the adoption of the
Uniform Rule, recommending that N.J.S.A. 2A:8l-9 be adopted
verbatim as the rule. Ibid. In its annotation the Committee
made the following pertinent comments:
4. Comparison between the New Jersey Statute
and Uniform Rule.
Under the rule the privilege belongs to the
penitent, and he can waive it by partial
disclosure to any one, or waive it in other
ways, thereby compelling the priest to
testify. The statute seems preferable.
5. Under the rule the penitent has a
privilege to refuse to disclose his
confession whereas under the statute he has
no privilege at all. Although the rule is
better here, such disclosures almost always
would be hearsay and therefore the matter is
not important.
Those comments depict the Jacobs Committee's fear that under the rule the clergyperson could be compelled to testify and to divulge confidences. As the Appellate Division majority below noted, that concern may have stemmed from the desire to protect
the clergyperson's free exercise of religion or from the desire
to curb the potential manipulations of a penitent who, through
waiver, could compel a clergyperson to reveal communications that
were given purposely to mislead. 263 N.J. Super. at ll0-ll n.5.
Although the Jacobs Committee indicated that the Uniform
Rule was preferable to the extent it permitted the penitent to
refuse to disclose a confession, it rejected that rule in favor
of the then-existing statute, which did not confer any privilege
on the penitent. Jacobs Committee Report, supra, at 77.
Instead it preferred the statutory language under which the
penitent had "no privilege at all" and under which the
clergyperson could not be "allowed or compelled" to disclose.
Ibid.
The language chosen by the Jacobs Committee indicates on its
face that the penitent does not hold the privilege. Because the
Jacobs Committee was concerned about the clergyperson being
compelled to testify, its preference for the statute indicates
that it viewed the statute as granting an evidentiary privilege
to the clergyperson alone. Indeed, reading the statute to make
the clergyperson the sole holder of the privilege seems the best
way to ensure that the fears of the Jacobs Committee will not be
realized; because the penitent does not hold the privilege, he or
she cannot effectively waive it through disclosure or otherwise
and therefore cannot compel disclosure by the clergyperson. That
is the view that the majority in the Appellate Division adopted
and that the State urges on this Court.
Based on the Jacobs Committee Report, the Legislature
retained N.J.S.A. 2A:8l-9. Following the issuance of the Jacobs
Committee Report, the Legislature appointed the Commission to
Study the Improvement of the Law of Evidence (hereafter the
Bigelow Commission). J. Res. l5., l79th Leg., l955 N.J. Laws
l026. The Bigelow Commission issued its report in November of
l956. See Report of the Commission to Study the Improvement of
the Law of Evidence (l956) (hereinafter the "Bigelow Commission
Report"). With regard to the priest-penitent privilege, the
Bigelow Commission essentially recommended that the Legislature
adopt the Jacobs Committee recommendation. Bigelow Commission
Report, supra, at 38.
The Bigelow Commission suggested two substantive changes to
N.J.S.A. 2A:8l-9, the then-existing statute that the Jacobs
Committee had endorsed. First, it expanded the scope of the non-disclosure rule to include "other confidential communications" in
addition to confessions. Second, it made the non-disclosure rule
subject to waiver. Regarding the former, the Bigelow Commission
explained: "This Commission had added confidential
communications[] [that] might not qualify as confessions but
which should be privileged." Ibid. It made no reference in its
comment to the inclusion of the phrase making the non-disclosure
rule subject to waiver.
That the Bigelow Commission believed that N.J.S.A. 2A:8l-9
was or should be a waivable privilege and not a rule of
competency is evidenced by both the inclusion of the waiver
provision and the comment that confidential communications should
be privileged. If the non-disclosure rule could be waived, it
certainly could not be an absolute ban on disclosure by the
clergyperson. It could not be a rule of competency.
The Commentator to the New Jersey Rules of Evidence claims
that "[t]he inclusion of [the waiver] provision by the Bigelow
Commission was probably in error because it contradicts the
thrust of the rule and the original statute, namely that under no
circumstances should a religious figure be considered as a source
of evidence of this type." Biunno, supra, comment l on Evid. R.
5ll. Although the Bigelow Commission's inclusion of the waiver
provision may have been based on a misunderstanding of the
original nature of the non-disclosure rule, this Court cannot
ignore its subsequent adoption by the Legislature by Act of July
l, l960, L. l960, c. 52. We simply cannot ignore the express
reference to the Evidence Rule 37 waiver.
The inclusion of the waiver provision by the Bigelow
Commission and its subsequent adoption by the Legislature does
not, however, answer the question of who can waive the privilege.
That the language is directed toward the clergyperson and does
not expressly repose the privilege in the penitent we find
telling, particularly in light of the fact that the Legislature
clearly identified the holder of other evidentiary privileges.
See e.g., Evid. R. 26 (stating that attorney-client privilege
belongs to client); N.J.S.A. 45:l4B-28 (stating that
psychologist's privilege belongs to client); N.J.S.A. 2A:84A-22.l
to -22.9 (stating that patient-physician privilege belongs to
patient); Evid. R. 32 (stating that trade-secret privilege
belongs to owner of secret, which may be claimed by agent or
employee); Evid. R. 23(2) (stating that spouse of accused can
testify without consent of defendant spouse); Evid. R. 28
(providing that spouse of accused can reveal marriage
communications without consent of defendant spouse).
Moreover, valid reasons exist why the confider in the
attorney-client privilege and the physician-patient privilege
holds the privilege, but the penitent in the clergyperson-penitent privilege does not.
[M]any ministers believe it to be a religious
obligation to maintain the secrecy of penitential
communications despite the willingness of the penitent
to allow disclosure. In addition, it has been
suggested that allowing a clergyman to testify when a
privilege is waived may lead to a penitent abusing the
privilege.
Abuse of the privilege could occur, for example, if a scheming penitent were to confess to several different versions and then waive privilege for the one best suited for his or her purpose. Ibid. The Jacobs Committee voiced major concerns over the potential for a penitent to manipulate the privilege.
We find the plain waiver language of the statute, the
interpretation of the statute by the Jacobs and Bigelow
Committees, and the origin of the privilege to be persuasive
evidence that the clergyperson is the only person who can waive
the privilege. Evidence Rule 29 was written in reference to the
clergyperson. It was the clergyperson with whom the Jacobs
Committee was concerned when it recommended that the then-existing statute be retained. Neither the original priest-penitent privilege nor the statute as originally drafted was
overly concerned with the penitent. See Jacobs Committee Report,
supra, at 77.
The only New Jersey case before this one involving the
priest-penitent privilege also supports this view. In re Murtha,
ll
5 N.J. Super. 380 (App. Div. 1971), involved the question of
whether a Roman Catholic nun could assert the priest-penitent
privilege in response to questions regarding her conversations
with one of her former pupils. After holding that a nun did not
qualify as "a clergyman, minister or other person or practitioner
authorized to perform similar functions," id. at 386-87, the
Appellate Division suggested that even if the privilege applied
generally to nuns, it did not apply in that case because the nun
had waived the privilege when she signed a sworn statement
regarding her conversations with her former pupil. Id. at 387-88.
Thus, the implication of the dicta in Murtha is clear.
Specifically, the clergyperson is the holder of the priest-penitent privilege and can unilaterally waive the privilege by
consenting to disclosure or by partial disclosure. Because the
former pupil in Murtha had not consented to the disclosure, the
Appellate Division's suggestion that the nun may have waived the
privilege would be senseless, unless the clergyperson or an
equivalent had the power unilaterally to waive the privilege.
The Legislature amended the privilege in l98l. L. l98l, c.
303, § 2. The amendment expanded the privilege by adding at the
end the following language: "nor shall he be compelled to
disclose the confidential relations and communications between
and among him and individuals, couples, families or groups with
respect to the exercise of his professional counseling role."
The amendment did not address the question of who holds the
privilege; it merely expanded the type of communications covered
by the privilege. In light of the Murtha dicta to the effect
that the clergyperson alone holds the privilege, one can
reasonably infer that the Legislature believes that solely the
clergyperson holds the privilege. Had the Legislature believed
otherwise, it would have overruled that interpretation when it
amended the statute. See Lemke v. Bailey, 4l N.J. 295, 30l
(l963) ("The construction of a statute by the courts, supported .
. . by continued use of the same language or failure to amend the
statute, is evidence that such construction is in accordance with
legislative intent. . . . The persuasive effect of such
legislative inaction is increased where the statute has been
amended after a judicial construction without any change in the
language so interpreted."); see also Quaremba v. Allan, 67 N.J.
l, l4 (l975) (holding same); In re Petition of Keogh-Dwyer, 45
N.J. ll7, l20 (l965) (same); Egan v. Erie R. Co.,
29 N.J. 243,
250 (l959) (same); Hooton v. Neeld, l
2 N.J. 396, 403 (l953)
(same); Cook v. Bennett Gravel Co.,
90 N.J.L. 9, l2 (Sup. Ct.
l9l7) (same).
Defendant contends, however, that the Appellate Division's holding that only the clergyperson holds the privilege renders the phrase "shall not be allowed" meaningless, and that well-established principles of statutory construction mandate that a construction rendering a part of a statute meaningless is to be avoided. Although we agree in general that a construction that renders a part of a statute meaningless or superfluous is undesirable, see Reynolds, supra, l24 N.J. at 564; Medical Soc'y, supra, l20 N.J. at 26, we are not bound to construe statutes so that every word is imbued with significance when nothing indicates that the Legislature so intended. County of Monmouth v. Wissell, 68 N.J. 35, 43 (l975); ll0-ll2 Van Wagenen Ave. Co. v. Julian, l0l N.J. Super. 230, 235 (App. Div.), certif. denied, 52 N.J. 490 (1962).
Although the "shall not be allowed" language can possibly
refer to the penitent, that language is more probably a vestige
of what, perhaps, originally was a rule of competency. The
"shall not be allowed" language seems most analoguous to the "may
not testify" language employed in states where apparently no one
may waive the privilege and the rule is more a rule of competence
than of privilege. See, e.g., Ind. Code Ann. § 34-l-l4-5 (Burns
Supp. l986); Mich. Comp. Laws Ann. § 600.2l56 (West Supp. l986);
see also Mitchell, supra,
71 Minn. L. Rev. at 755-56 n.l8l
(discussing those statutes).
Given the fact that the privilege in New Jersey is expressly
subject to waiver, to ignore the express waiver in favor of the
ambiguous phrase "shall not be allowed" would defeat the
Legislature's intent. "Where a choice must be made between two
imperfect interpretations, the view should be selected which more
likely accords with the probable legislative intent." Wissell,
supra, 68 N.J. at 43; see also Roman v. Sharper,
53 N.J. 338, 342
(l969) (holding same).
The language to the effect that the clergyperson "shall not
be compelled" to disclose suggests that the clergyperson has the
discretion to waive or insist on the privilege. See Mitchell,
supra,
71 Minn. L. Rev. at 755-56 n.l8l. Moreover, where the
intent of a legislature was to make both the clergyperson and the
penitent the holders of the privilege, the statute is generally
written to state that the clergyperson shall not be compelled to
disclose without the confider's consent. Ibid. Evidence Rule 29
is not written in that manner.
The principle underlying both the seal of confession and the
statutory privilege was not concern for the penitent but rather
concern that the clergyperson would be compelled in violation of
his or her religious vows to disclose such confidences. Because
the principal rationale was to recognize and protect the
religious vows of the clergy, to include the penitent as the
holder of the privilege was not necessary. Although we recognize
"the human need to disclose to a spiritual counselor, in total
and absolute confidence, what are believed to be flawed acts or
thoughts and to receive priestly consolation and guidance in
return," Trammel, supra, 445 U.S. at 5l, 100 S. Ct. at 913,
63 L.
Ed 2d at l95, we are not persuaded that the comfort of the
penitent was the compelling motive for Evidence Rule 29.
The numerous state clergy-privilege statutes are not
iden