filed: October 29, 1990; As Corrected November 13, 1990.
On Appeal From the United States District Court for the Western District of Pennsylvania. (D.C. Misc. No. 16143).
Becker, Hutchinson and Garth, Circuit Judges
This is an appeal by the government, pursuant to 18 U.S.C. § 3731, from an order denying its motion to compel the federal grand jury testimony of a Lutheran clergyman concerning subjects discussed during a family counseling session. The district court held that a clergy-communicant privilege, existing under federal common law, barred the testimony. The grand jury was investigating whether racially motivated housing discrimination and a conspiracy to deny civil rights led to an apparent arson at the home of a black family that lived next door to the family whose members the pastor counseled. In addition to the pastor, the family counseling session involved four persons: a husband and wife, who were members of the pastor's church, the wife's adult son from a previous marriage, and the son's fiancee.
The district court, ruling on the pastor's motion to quash the subpoena compelling him to testify before the grand jury, held that a communication, to be protected, must be made in confidence. It found, however, that the communications of family group members to the pastor were, as the pastor understood them to be, confidential. Otherwise, the court concluded, "his ministry would be ineffective." The government contends that even if a clergy-communicant privilege exists under federal common law, the pastor should not be able to invoke it to avoid testifying about what was said to him in the course of this counseling session.*fn1 The government reasons that the presence at the counseling session of the fiancee (not yet a member of the family) was neither essential to nor in furtherance of any religiously motivated communications to the pastor on the part of the others present and therefore worked either to vitiate or to waive any privilege. In support of this argument, the government invokes the general principle that evidentiary privileges, which retard the search for truth, should be narrowly construed.
There is a relative dearth of federal precedent establishing the existence and contours of a clergy-communicant privilege.*fn2 Although the original draft of the Federal Rules of Evidence included a section providing for a number of specific privileges, including one that would have protected communications to members of the clergy, see Proposed Rules of Evidence for the United States Court and Magistrates, 56 F.R.D. 183 (1973), Congress chose not to codify the draft Rules comprehending specific privileges. See H.R. 93-650, S.R. 93-1277, H.R. Conf. R. 93-1597, 93rd Cong. 2d Sess. 4, reprinted in 1974 U.S. Code Cong. & Admin. News 7051, 7075, 7100. Congress substituted in their stead a single rule generally providing that "privilege[s] . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed. R. Evid. 501.*fn3 In accordance with this standard, we must determine whether a clergy-communicant privilege in fact exists and, if it does, its relevant contours.
For the reasons that follow, we hold that a clergy-communicant privilege does exist. We further hold that this privilege protects communications to a member of the clergy, in his or her spiritual or professional capacity, by persons who seek spiritual counseling and who reasonably expect that their words will be kept in confidence. As is the case with the attorney-client privilege, the presence of third parties, if essential to and in furtherance of the communication, does not vitiate the clergy-communicant privilege. Neither the record nor the district court's findings, however, are sufficient to establish whether any of those present at the counseling session should be considered third parties, to gauge the impact of any third party's presence, and to enable us to ascertain whether the privilege was properly invoked in this case. We will therefore vacate the district court's order and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
On November 28, 1985, a fire occurred at a house, located in an all-white neighborhood in the Forest Hills section of Pittsburgh, Pennsylvania, that had recently been purchased by a black family. The police and fire departments determined that the fire was the likely result of arson. Within several days of the fire, Mr. and Mrs. George Kampich, Mrs. Kampich's adult son, George Shaw (who is not related legally or by blood to Mr. Kampich), and Patty DiLucente, Shaw's fiancee, sought counseling from the Reverend Ernest Knoche ("Pastor Knoche"), a Lutheran clergyman.*fn4 All four persons lived in the home next door to the site of the fire. Mr. and Mrs. Kampich are members of Pastor Knoche's church. Although Shaw has occasionally attended services at the church, Shaw and DiLucente are not members. In June of 1989, Shaw and DiLucente were married. In November of 1989, some four years after the counseling session, a grand jury convened by the district court for the Western District of Pennsylvania commenced an investigation of the suspected arson. The grand jury was investigating, in particular, possible violations of 42 U.S.C. § 3631, prohibiting racially motivated housing discrimination, and of 18 U.S.C. § 241, prohibiting conspiracies to violate civil rights.
On November 28, 1989, the government subpoenaed Pastor Knoche to testify before the grand jury about the 1985 counseling session. The government, in support of this subpoena, asserted that it had reason to believe that the Kampiches, Shaw, and DiLucente had planned or participated in the arson and had discussed their involvement with the pastor. In an interview prior to his appearance before the grand jury, Pastor Knoche informed the government that he intended to assert the clergy-communicant privilege and would refuse to answer any questions regarding the counseling session. That day, the government filed a motion in the district court to compel Pastor Knoche to testify before the grand jury.
On November 28th and 29th, the district court held a hearing on the government's motion. In the course of this hearing, the district judge questioned the pastor about the extent of his family and group counseling, the parties involved in the discussion at issue, and the confidentiality of their communications. Pastor Knoche stated that family counseling, in contrast to individual counseling, constituted a typical and important part of his ministry. The Pastor also concurred with the district court's characterization of his ministry as founded upon the Judeo-Christian notion of redemption and forgiveness through counseling and prayer. The Pastor responded, further, that forthrightness and truthfulness on the part of participants, such as Mr. and Mrs. Kampich, Shaw, and DiLucente, are essential to proper counseling and, ultimately, to redemption. He concluded that those whom he spiritually counsels expect that he will keep any communications made to him in strict confidence. The district court sustained Pastor Knoche's right to assert a clergy-communicant privilege and denied the government's motion to compel his testimony. The district judge, in a colloquy setting forth the basis for his decision, described it as "tough," but concluded that compelling the pastor to testify would break down church-state divisions, infringe upon the right to participate in religious activities, invade a "sacrosanct" area, and, through depriving families of confidential religious counseling, endanger them. This appeal followed.
II. THE EXISTENCE AND CONTOURS OF A CLERGY-COMMUNICANT PRIVILEGE
In federal courts, evidentiary privileges are governed by Rule 501 of the Federal Rules of Evidence. This provision, which was the product of congressional involvement in the rulemaking process, does not contain a specific and exclusive list of privileges recognized in the federal courts. The Rule instead provides the federal courts with flexibility in crafting testimonial privileges.*fn5 Rule 501 in pertinent part provides:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
The Rule dictates the evolution and application of a federal common law of privilege in federal criminal cases.*fn6 Under Federal Rule of Evidence 1101, Rule 501 is applicable to grand jury proceedings. See Fed. R. Evid. 1101(d)(2) (providing that all rules of evidence shall be inapplicable in grand jury proceedings except for that with respect to privileges).
A. The Clergy-Communicant Privilege and the History of Rule 501
The privilege formula adopted by Congress in Rule 501 had its origin in Rule 26 of the Federal Rules of Criminal Procedure.*fn7 Both the history and the language of Rule 501, therefore, provide us with a mandate to develop evidentiary privileges in accordance with common law principles. This mandate, in turn, requires us to examine federal and state case law and impels us to consult treatises and commentaries on the law of evidence that elucidate the development of the common law. We believe that the proposed rules of evidence adopted by the Supreme Court and submitted to Congress provide us with an appropriate starting point for discerning the existence and scope of the clergy-communicant privilege.
Rule 501 replaced a number of proposed rules concerning evidentiary privileges that were adopted by the Supreme Court following extensive study and analysis by the Advisory Committee responsible for codifying federal rules of evidence. As submitted to Congress, Article V of the proposed rules set out thirteen rules encompassing nine specific privileges, including a privilege for communications to clergymen. See Proposed Federal Rules of Evidence, 56 F.R.D. at 183.*fn8 Rule 506, delineating the contours of the clergy-communicant privilege, reads as follows:
Communications to Clergymen
(a) Definitions. As used in this rule:
(1) A "clergyman" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed ...