Rule 506 Communications to clergy. (a) Definitions. As used in this rule:

(1) A "member of the clergy" is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the communicant.

(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the latter's professional character as spiritual advisor.

(c) Who may claim the privilege. The privilege may be claimed by the communicant or by the communicant's guardian, conservator, or personal representative. The member of the clergy may claim the privilege on behalf of the communicant. Authority so to do is presumed in the absence of evidence to the contrary. [L 1980, c 164, pt of 1; am L 1992, c 191, 2(3)]

 

RULE 506 COMMENTARY

 

This rule is identical with the U.S. Supreme Court proposal for Rule 506, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975), except that "accredited Christian Science Practitioner" has been added to the definition of "clergyman" in subsection (a)(1), consistent with Uniform Rule of Evidence 505(a)(1). The rule supersedes a prior Hawaii statute, Hawaii Rev. Stat. 621-20 (1976) (repealed 1980) (originally enacted as L 1876, c 32, 55; am L 1933, c 45, 1; am L 1972, c 104, 1(n)):

No clergymen of any church or religious denomination shall, without the consent of the person making the confidential communication, divulge in any action or proceeding, whether civil or criminal, any confidential communication made to him in his professional character according to the uses of the church or religious denomination to which he belongs.

The present rule accords generally with the prior statute but broadens the scope of the privilege slightly in two particulars. Under the prior statute the privilege was limited to confidential communications made "according to the uses of the church or religious denomination to which [the clergyman] belongs." There seems no good reason to limit the privilege in this way so long as confidentiality was intended by the communicant. The present rule clarifies that uncertain point, granting the privilege to all confidential communications made to the clergyman in his professional capacity as a spiritual adviser. In addition, the privilege is extended to cover confidential communications to one who is not a clergyman if the person making the communication reasonably believes that he is.

 

 

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