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State v. J.G.

April 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
J.G., DEFENDANT-APPELLANT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 402 N.J. Super. 290 (2008).

SYLLABUS BY THE COURT

(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.)

In this appeal the Court is called upon to clarify the standard for deciding when the cleric-penitent privilege may be invoked.

Defendant J.G. and Pastor Glenford Brown knew one another for more than thirty years, since J.G. was six years old and the two lived in Jamaica. Each later moved to New Jersey. In about 1985, Brown became pastor of the New Creation of Apostolic Faith, a church located in Somerset, New Jersey. Brown was also employed elsewhere as a warehouse supervisor. J.G. was not a member of Brown's New Jersey congregation, but he did attend church there two or three times, and his wife and their two daughters were members.

In May 2000, J.G.'s daughters told their mother that J.G. had sexually abused them. The mother contacted Pastor Brown and met with him to discuss the details of the allegations. Afterward, Brown felt that he had a duty, as the family's pastor, to protect the children by preventing J.G. from returning home. Pastor Brown contacted J.G. and arranged to meet with him. Pastor Brown met J.G. outside of Brown's home and suggested that they walk to a public play area behind the house to sit and talk. Although Pastor Brown later testified that he would not allow J.G. inside his home, Brown did not say so aloud.

The two spoke in private in the play area; no one else was there. During the conversation, J.G. attempted to blame his wife. In response, Pastor Brown proclaimed, "if it was [i]n the days of the law in the bible... I'd kill you myself because I think that what you've done is deserving of death." The Pastor also told J.G. that he was a sick man who needed help. J.G. did not directly admit the allegations but asked the Pastor to "help" and "counsel" him. Pastor Brown refused. The Pastor offered to find an organization that could counsel J.G., but J.G. declined "because he thought [Brown] would have to explain" to others what J.G. had done, "and then he would end up in jail." Pastor Brown replied, "that is probably where you need to be anyway." At some point during the conversation, J.G. asked Pastor Brown to baptize him, but Brown refused. One or two weeks later, J.G. attended the Pastor's church on a Sunday and again asked to be baptized. Pastor Brown again refused. J.G. also called and spoke twice with the Pastor after their meeting. Pastor Brown encouraged J.G. to surrender to the police. J.G. ultimately agreed.

On June 29, 2000, a Middlesex County grand jury indicted J.G. on four counts of first-degree aggravated sexual assault, three counts of second-degree sexual assault, two counts of third-degree aggravated criminal sexual contact, one count of fourth-degree criminal sexual contact, and two counts of second-degree endangering the welfare of a child. J.G. moved to prevent the Pastor from testifying about their conversations at trial. At a pretrial evidentiary hearing, the trial court heard testimony from Pastor Brown. In deciding whether the communications between J.G. and the Pastor were privileged, the court looked to N.J.S.A. 2A:84A-23, which defines the cleric-penitent privilege, and considered the three-prong test outlined in State v. Cary, 331 N.J. Super. 236, 241 (App. Div. 2000). The trial judge found that Brown reached out to J.G., that J.G. had known him as a Pastor for many years, that J.G. desired to be baptized, and that the two had spoken in private. "Looking at the big picture," the court concluded, the communications fell within the privilege and could not be introduced at trial.

The State filed a motion for leave to appeal, which the Appellate Division granted. In a published opinion, the Appellate Division concluded that the communications between Pastor Brown and J.G. were not privileged and therefore reversed the trial court.

The Supreme Court granted J.G.'s motion for leave to appeal. In addition, the Court granted amicus curiae status to the Association of Criminal Defense Lawyers of New Jersey (ACDL) and the Attorney General.

HELD: The cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric's professional character or role as a spiritual advisor.

1. The cleric-penitent privilege is "rooted in the imperative need for confidence and trust" and its underlying rationale is the public interest in fostering the cleric-penitent relationship. The privilege originated with the Catholic seal of confession and, under the Code of Canon Law of the Roman Catholic Church, it was a crime, punishable by excommunication, for a priest to break the seal of the confessional by revealing information acquired during a confession. New Jersey first recognized the privilege by enacting a statute in 1947. The statute hewed closely to religious doctrine; it protected only confessions, and it expressly linked them to situations prescribed by the rule or practice of a religious body. The Evidence Act of 1960 repealed and expanded the 1947 statute. The new law -- labeled the "priest-penitent privilege" -- extended the privilege to a broader group of religious figures and protected from disclosure not only confessions but also "other confidential communication[s]." In addition, it deleted the phrase "enjoined by the rules" of the religious body, thereby removing language that tied protected communications to the prescribed rules of a religion. In 1981, driven by changes to the psychologist-patient privilege, the Legislature expanded the privilege to cover communications with couples, families, and groups. The 1981 revision also protected both communications and the fact that a confidential relationship existed between a cleric and a penitent. When the current rules of evidence were adopted on July 1, 1993, the cleric-penitent privilege found at N.J.S.A. 2A:84A-23 was included without change as N.J.R.E. 511. Finally, in 1994, the Legislature once again expanded the privilege, bringing about several important changes. First, the Legislature provided that both the cleric and penitent hold the privilege and that neither alone may waive it -- except for communication of a future criminal act. Second, the 1994 amendment introduced the generic term "cleric" and defined it to include priests, rabbis, ministers, and other religious practitioners. Third, the amendment broadened the rule to refer to "[a]ny communication made in confidence to a cleric in the cleric's professional character." The Legislature also described "privileged communications" without using words of limitation; instead, it noted the term "shall include" confessions, counseling, and other communications. Thus, the development of the privilege reflects a broad change over time from the privilege's strict religious roots to the current protections afforded to professional group counseling, which reflect a cleric's broader role. (Pp. 10-19)

2. As a general rule, testimonial privileges are narrowly construed because they prevent the trier of fact from hearing relevant evidence. N.J.S.A. 2A:84A-23 provides the basic framework for determining when the cleric-penitent privilege may be invoked: the communication must be made (1) in confidence, (2) to a cleric, (3) in the cleric's professional character or role as a spiritual advisor. In evaluating whether the privilege should be invoked, some courts have employed an objective standard, focusing on whether communications were made with a reasonable expectation of confidentiality. The Court agrees that the test should be an objective one. An objective approach separates idiosyncratic views from reasonable ones and disregards subjective thoughts that are not conveyed. In addition, a fact-sensitive analysis avoids bright-line rules that would extend the privilege to all communications between a penitent and a cleric, regardless of whether they meet the statutory test. In evaluating whether the cleric-penitent privilege applies, therefore, courts should use Cary's three-part test and employ an objective standard that encompasses all the facts presented. The proper test is as follows: Would an objectively reasonable penitent, under the totality of the circumstances, believe that a communication was secret, that is, made in confidence to a cleric in that cleric's professional character or role as spiritual advisor? (Pp. 19-26)

3. Although the Court cannot be sure that the trial court tested the facts against the benchmark it has announced, the Court applies the objective reasonableness standard in keeping with what the trial court said and concludes that there is ample support in the record for the court's conclusion that the privilege applies. As to the first prong of the privilege, an objective penitent in J.G.'s position could reasonably have thought that the communication would remain confidential. First, the parties knew one another and interacted in a religious context for decades. Under the circumstances, it is reasonable to conclude that after receiving a message from Pastor Brown, someone in J.G.'s position would believe that he had been summoned by a cleric, not a secular figure or warehouse supervisor. Second, Pastor Brown and J.G. met and spoke in private. Third, based on the exchange that took place, it was apparent that J.G. expected the conversation would remain confidential. By not dispelling that expectation, Pastor Brown made it appear reasonable. The State conceded the second prong of the privilege and does not dispute that Pastor Brown is a cleric. As to the third prong -- whether Pastor Brown was acting in a cleric's professional character or role as a spiritual advisor -- a reasonable penitent could have concluded that Brown was serving in that capacity. Toward the outset of the conversation, Brown set the tone by invoking biblical law to condemn J.G.

In addition, during the course of the meeting and afterward, J.G. sought spiritual advice and counseling from Pastor Brown and asked to be baptized multiple times. Thus, under the objective reasonableness standard announced today, in light of all the circumstances, the communications between Pastor Brown and J.G. were privileged. (Pp. 26-32)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO filed a separate, DISSENTING opinion, stating that the majority has adopted a rule that hermetically insulates the cleric-penitent privilege from its origins, eschews the privilege's clear tradition, and ignores the statutory mandate. Moreover, Justice Rivera-Soto states, the majority has adopted a new rule of law and applied it to the facts of this case without assessing whether that rule should be afforded full retroactivity, pipeline retroactively, purely prospective effect or prospective application, and denied the litigants in this case the ability to develop and test their facts against this new standard.

JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and HOENS join in CHIEF JUSTICE RABNER's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

The opinion of the court was delivered by: Chief Justice Rabner

Argued September 30, 2009

This case involves what has been described as the most privileged of all communications: private conversations between a penitent and a cleric. Specifically, we are called on to clarify the standard for deciding when the cleric-penitent privilege may be invoked.

In this matter, defendant J.G. and Pastor Glenford Brown spoke in private about allegations that J.G. had sexually abused his daughters. During their half-hour meeting, the two parties did not explicitly discuss whether the conversation was to be kept confidential, and each left the session with a very different understanding. Pastor Brown later revealed details of the conversation to J.G.'s wife and the police.

J.G. was indicted, and he moved before trial to prevent his statements to Pastor Brown from being introduced in evidence.

J.G. argued that the statements were protected by the cleric-penitent privilege. The trial court concluded that the statements were privileged and barred them. The Appellate Division reversed.

In this appeal, J.G. contends that he was seeking help and spiritual counseling during the conversation with Pastor Brown. The State counters that Pastor Brown acted to protect J.G.'s daughters and not for any religious purpose.

The critical question, then, is how to determine whether the privilege can properly be invoked. We hold that the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric's professional character or role as a spiritual advisor.

Applying that standard in a manner consistent with what the trial court stated, we conclude that the privilege applies. Accordingly, we reverse and remand to the trial court for further proceedings.

I.

The following description of events relies on Pastor Brown's testimony at an evidentiary hearing. J.G. and Pastor Brown knew one another for more than thirty years, since J.G. was six years old and the two lived in Jamaica. Pastor Brown oversaw a number of churches in Jamaica, including one J.G. belonged to and attended regularly for a while. Each later moved to New Jersey.

In about 1985, Brown became pastor of the New Creation of Apostolic Faith, a church located in Somerset, New Jersey. Brown's pastoral duties took up only half his time; he was also employed elsewhere as a warehouse supervisor. J.G. was not a member of Brown's New Jersey congregation, but he did attend church there two or three times, and his wife and their two daughters were members.

In May 2000, J.G.'s daughters told their mother that J.G. had sexually abused them. The mother then called Pastor Brown at home to inform him. That same night, Pastor Brown met J.G.'s wife at the church to discuss the details of the allegations. Afterward, Brown felt that he had a duty, as the family's pastor, to protect the children by preventing J.G. from returning home. Brown telephoned for J.G. at work and left two or three messages with another person. The record is ambiguous as to precisely what Pastor Brown said in the messages*fn1 and how much information was actually relayed to J.G. J.G. returned Brown's call the following day, and the two arranged to meet.

Later in the day, Pastor Brown met J.G. outside of Brown's home and suggested that they walk to a public play area behind the house to sit and talk. Although Pastor Brown later testified that he would not allow J.G. inside his home, Brown did not say so aloud. As the men walked to the play area, J.G. tried to hold the Pastor's hand. Brown refused, telling J.G. that he did not want anyone "thinking that we're gay."

The two spoke in private in the play area; no one else was there. Pastor Brown asked J.G. how he could have molested his daughters. J.G. attempted to blame his wife. In response, Pastor Brown proclaimed, "if it was [i]n the days of the law in the bible... I'd kill you myself because I think what you've done is deserving of death." The Pastor also told J.G. that he was a sick man who needed help.

J.G. unsuccessfully tried to convince Pastor Brown to persuade J.G.'s wife and children to let him back into the family's apartment. Without directly admitting the allegations, J.G. said that if anything happened again, they could call the police or the Pastor.

During the conversation, J.G. asked the Pastor to "help" and "counsel" him. Pastor Brown refused, explaining that he was too close to the situation and too angry. The Pastor also believed that he was not qualified to offer the psychological help he thought J.G. needed. Instead, the Pastor offered to find an organization that could counsel J.G. J.G. declined the offer "because he thought [Brown] would have to explain" to others what J.G. had done, "and then he would end up in jail." Pastor Brown replied, "that is probably where you need to be anyway." At some point during the conversation, J.G. asked Pastor Brown to baptize him, but Brown refused.

One or two weeks later, J.G. attended the Pastor's church on a Sunday and again asked to be baptized. Pastor Brown again refused. J.G. also called and spoke twice with the Pastor after their meeting. During the conversations, Pastor Brown encouraged J.G. to surrender to the police. J.G. ultimately agreed. The Pastor offered to escort J.G. to the police station because J.G. feared reprisals from the Jamaican community if he turned himself in.

On June 29, 2000, a Middlesex County grand jury indicted J.G. on four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) and (c), two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

J.G. moved to prevent the Pastor from testifying about their conversations at trial. At a pretrial evidentiary hearing, the trial court heard testimony from Pastor Brown. In deciding whether the communications between J.G. and the Pastor were privileged, the court looked to N.J.S.A. 2A:84A-23, which defines the cleric-penitent privilege, and considered the three-prong test outlined in State v. Cary, 331 N.J. Super. 236, 241 (App. Div. 2000). The trial judge found that Brown reached out to J.G., that J.G. had known him as a Pastor for many years, that J.G. desired to be baptized, and that the two had spoken in private. The court noted that J.G.'s desire to be baptized was critical to its decision. "Looking at the big picture," the court concluded, the communications fell within the privilege and could not be introduced at trial.

The State filed a motion for leave to appeal, which the Appellate Division granted. In a published opinion, State v. J.G., 402 N.J. Super. 290, 298 (App. Div. 2008), the Appellate Division concluded that the communications between Pastor Brown and J.G. were not privileged and therefore reversed the trial court. The panel reasoned:

Applying the Cary test, we find that although Brown was a cleric and spoke to defendant without anyone else present, (1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant -- not as a spiritual advisor -- but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help. [Id. at 298.]

This Court granted J.G.'s motion for leave to appeal on October 16, 2008. 196 N.J. 589 (2008).

II.

J.G. argues that his conversation with Pastor Brown is protected by the cleric-penitent privilege. J.G. submits that when a defendant communicates with a cleric, the defendant's intent must govern as to whether the conversation will remain confidential. J.G. maintains that under the circumstances presented, he reasonably expected that his communications with someone he knew as a Pastor since age six, from whom J.G. was seeking counseling, spiritual guidance, and baptism, would remain private. To the extent there is any ambiguity, J.G. argues that the public interest demands "the tie should go to the penitent." He also contends that if a member of the clergy does not intend to have a confidential, pastoral conversation, the cleric should convey that information at the start, which Brown did not.

The State maintains that the conversation is not protected by the privilege. It argues that privileges are to be narrowly construed as a general rule, and that various aspects of the interaction between Pastor Brown and J.G. demonstrate that their conversation was not protected: Brown's initiation of the meeting; his secular purpose of protecting the children; his decision to meet in a play area to keep J.G. out of his house; Brown's refusal to hold J.G.'s hand; Brown's tone, focus on allegations of sexual abuse, and disgust over J.G.'s behavior; and Brown's refusal to provide counseling or help of a religious nature. Under those circumstances, the State contends there was no need for Pastor Brown to inform J.G. of the obvious -- that their conversation was not confidential. Furthermore, the State submits that Brown could not be considered a spiritual advisor during the session.

The State also notes that the privilege protects certain communications, not relationships between a cleric and penitent. The State submits that the overall test for confidentiality should focus on whether it is reasonable under all the circumstances for the holder of the privilege to expect that his or her communications will remain private.

We granted amicus curiae status to the Association of Criminal Defense Lawyers of New Jersey (ACDL) and the Attorney General. The ACDL argues that under the facts of this case, J.G. had a reasonable expectation of confidentiality in his communications to Pastor Brown and a reasonable belief that Brown was serving in the role of a spiritual advisor. More broadly, the ACDL submits that "a penitent has a reasonable expectation of confidentiality in all private and personal conversations with a cleric unless the cleric affirmatively warns the penitent that the communication is not confidential."

The Attorney General contends that the standard to be applied in determining whether communications are privileged "should be based on the totality of the circumstances analysis using an objective reasonable person." The Attorney General maintains that J.G. failed to establish that his communications with Pastor Brown were privileged because J.G. could not reasonably have expected that his communications to Brown were confidential or that Brown was acting as a spiritual advisor.

III.

The cleric-penitent privilege is "rooted in the imperative need for confidence and trust." See Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed. 2d 186, 195 (1980). The privilege "recognizes 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." Ibid. Thus, the underlying rationale for the privilege is the public interest in fostering the cleric-penitent relationship.

Justice Garibaldi carefully traced the origins of the privilege and its history in State v. Szemple, 135 N.J. 406, 422-31 (1994). The cleric-penitent privilege originated with the Catholic seal of confession. Id. at 423. Under the Code of Canon Law of the Roman Catholic Church, it was a crime, punishable by excommunication, for a priest to break the seal of the confessional by revealing information acquired during a confession. Ibid. (citation omitted).

As Justice Garibaldi further explained, "[t]he sanctity of the confession was recognized in English law from the Norman Conquest in 1066 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." Ibid. (citation omitted). As a result, the cleric-penitent privilege did not exist as part of the common law when our nation was founded. Ibid.; see also State v. Morehous, 97 N.J.L. 285, 295 (E. & A. 1922). Courts in New Jersey and elsewhere thus looked to developing statutory law as the basis for the privilege.

New Jersey first recognized the privilege by enacting a statute in 1947. See L. 1947, c. 324 (N.J.S.A. 2A:81-9 (1947)). The law provided that

[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 rule or practice ...


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