Is this confession legally useless? (spoilers for an old Bones ep)

Factual Questions
1

I just watched an episode of Bones. As the plot enfolds it becomes apparent that the priest they suspect of murder is actually shielding a laywoman who works for the parish. The priest fully intends on taking the rap, until Booth points out he’ll have to place his hand on the Bible and swear to God he’s telling the truth. He agrees to expose the real murder on the condition that he’s the one to get her to confess. So she meets with him at FBI headquarters. He get’s her to admit to killing two priests (because they were pedophiles), but the 3rd one she tried (& failed) to kill was actually innocent. She’s horrified and asks the priest if he absolves her. He tell’s her “We are not alone with God; this is not that kind of confession”. Cut to Brennan & Booth on the other side of the mirror watching (& presumably recording).

My first though was that any defence attorney would have a field day with this. It’s quite clear that she thought she was meeting with the priest as an agent of God and confessing her sins. In which case nothing she said could be used against her in court. Unbeknownst to her the priest was acting as an agent of the police and getting her to confess so she could be prosecuted. Wouldn’t her confession be completly useless in real life? How would this be any different that having a cop impersonate a priest or bug a confessional?

2

The communication was privileged.

The proposed (but not enacted*) rule is thus:

[QUOTE=FRE 506]
(a) Definitions. As used in this rule:

(1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him. 

(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 the clergyman in his professional character as a spiritual adviser. 

(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

[/QUOTE]

In Bones, the priest is clearly a clergyman, and the communication was made privately (hence her surprise at having the confession heard by others) to the priest as a priest (not as, say, a drinking buddy). Also, the priest is clearly a dickhead.

However, Bones is, shall we say, loose with the law. Frankly, they don’t even have jurisdiction in about 90% of the episodes. Most murders are state law matters, and IIRC that episode didn’t really have anything making it federal. The FBI often helps state police out, but Bones goes a bit far with that and has the FBI do all the investigation and the DOJ do the prosecution.

The upshot is that in the case in Bones, state law probably applies, which might be slightly different than the proposed Federal rule. But all states have the privilege, and most are very similar to federal law. Odds are the woman’s confession would be tossed in a heartbeat in any state in the nation.

The only arguing point could be that the suspect might not have had an expectation of confidentiality while in an FBI interrogation room. But the priest inviting her to discuss it with him, etc, would show that she might have had a reasonable expectation of confidentiality.

  • The reason that the Federal rule hasn’t been adopted in the Federal Rules of Evidence is because there is this rule:

[QUOTE=FRE 501]
Rule 501 - General Rule: 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, the 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. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness, person, government, state, or political subdivision thereof shall be determined in accordance with state law.
[/QUOTE]

That just makes the Federal common law privileges available under the FRE. Priest-Penitent is one of those common law privs, so it’s already in there. The proposed rule is proposed as either a clarification of rule 501 (which is guilding the lilly), or it’s a model for states to adopt should they want to. Which most did.

3

I haven’t seen it, but I agree. It would depend on the precise contours of the privilege, but typically if the penitent reasonably believes they are confessing in private the priv applies. And the better rule here is that the penitent, not the priest, holds the priv. That is, it is up to the penitent as to when the priest is permitted to share info. Some jurisdictions might not have that exactly right, but I think the federal rule is that way ( and Boreanaz is FBI, right?). Ergo, I think this is not admissable.

–Cliffy

P.S. Please excuse spelling errors – this is my first post from my new iTouch. Woo-hoo!!!

4

26 states don’t say who holds the privilege. Those states would likely follow the federal rule and give it to the penitent. The rest of the states either assign it to the penitent, or to both the penitent and the priest. I doubt that any court would rule that the priest has the sole right to decide to waive privilege.

5

But you’re forgetting it doesn’t really matter if the confession holds up in court or not.

The point of doing things like this, in real life, is to obtain accurate information.

I didn’t watch that episode of “Bones,” but going on the summary, the cops weren’t sure without the confession. Now they are 100% certain they have the right guy.

So they simply throw out the confession and try every other means available to him to get him convicted.

Remember tricking someone isn’t the end to it.

For instance, in this case if they guy confesses to the priests, the cops bring him in and ask him to formally confess, and he repeats the confession to the cops. Now the cops have a confession on file, legally obtained that they can use.

Of course if the cops bring him in and he refuses to confess again, they can’t use the confession obtained by the priest.

So they resort to “other means” such as “Well we don’t have your confession, but we can hold you for 48 hours without charging you. We’ll put you in that cell with Joe MassKiller. I hope he doesn’t break every bone in your body before those 48 hours are up.” “But don’t worry we almost always stop them, of course if you confess now, you won’t be in the cell with him, but in another jail.”

So even if the cops used such means in real life, it’s hardly the end to the case against the guy. The confession isn’t as important as knowing they have the right guy. Then they can hound him from every angle

6

I would argue that the “other means” you mention are all coercive in nature. And I would make the state show that the evidence they gathered after hearing the inadmissible confession would have inevitably been obtained by other means, or else it’s fruit of the poisonous tree and inadmissible as well.

In the case where the police come in right after the suspect confesses to his priest and ask for another confession, I would argue that the circumstances alone, of using a police agent (the priest) to elicit the confession in the first place would invalidate any further confessions as well.

7

Here’s another plot error: you’re not under oath when you enter a plea of guilty or not guilty, since it is a legal plea, not testimony. If an accused wishes to plead guilty, he doesn’t have to testify to do so. So the basic premise of the plot is wrong.

8

I agree with most of what’s been said here, but the thorn in my side is

How would anyone in their right mind think that an FBI interrogation room is a confessional? How would anyone think that what they’re saying isn’t being recorded? How would they think that there’s no one watching? Even if they didn’t expect implicitly that the priest would be acting as an agent of the cops (it’s not as obvious as, say, the recording equipment), wouldn’t that thought occur to a rational person given the situation? (“Hmm. The priest who knows I killed people is asking me, in the FBI’s interrogation room, if I killed people, which he clearly knows I did. I think this is a set up.”)

If I were a judge, I’d be thinking, “You’re a rational person. You should have known. Given the situation, location, etc., if you wanted what you said to him to remain a confidential spiritual confession, you should have told him you were making a spiritual confession.”

If the priest heard her say, “This is a spiritual confession. This must remain between you and me. I refuse to say anything self-incriminating with out knowing that what I say is confidential.” I’m sure he would have had to keep it confidential, or else tell her he couldn’t do that, given the situation.

I totally understand all the other arguments, but I just can’t get past this one point.

9

Because a confession doesn’t have to be in a confessional. It can be held anywhere. The key issue is whether the individual is confessing sins to the priest, understanding that the priest is acting as a spiritual guide. It’s not based on reasonable expectations of privacy.

10

The confession gets tossed so hard it bounces. Twice.

And the priest is in seriously deep doo-doo with his bishop.

11

I think what Serenata67 is saying is that the conversation is being recorded, so there’s no privacy whatsoever. (So, you can’t say, “well, it was priveledge,” when you stated it out in the open)

Of course, that’s assuming that the conversation IS being recorded. AND assuming it would be admissable.

However, ANY priest who would willingly lie and say “I’m here as your confessor”, while wearing a wire, would be defrocked – and most likely excommunicated.

12

[QUOTE=Serenata67]

How would anyone in their right mind think that an FBI interrogation room is a confessional? How would anyone think that what they’re saying isn’t being recorded? How would they think that there’s no one watching? Even if they didn’t expect implicitly that the priest would be acting as an agent of the cops (it’s not as obvious as, say, the recording equipment), wouldn’t that thought occur to a rational person given the situation? (“Hmm. The priest who knows I killed people is asking me, in the FBI’s interrogation room, if I killed people, which he clearly knows I did. I think this is a set up.”)

If I were a judge, I’d be thinking, “You’re a rational person. You should have known. Given the situation, location, etc., if you wanted what you said to him to remain a confidential spiritual confession, you should have told him you were making a spiritual confession.”

If the priest heard her say, “This is a spiritual confession. This must remain between you and me. I refuse to say anything self-incriminating with out knowing that what I say is confidential.” I’m sure he would have had to keep it confidential, or else tell her he couldn’t do that, given the situation.

[/QUOTE]

She was not aware that they were recording, nor was it obvious that anyone else was listening in. The most analogous case that I know of is one where two suspects were sitting in the back of a police car, and the cop stepped out of the car for a bit, whereupon the suspects discussed the crime they had committed. There was a recorder in the car. The court found they had no reasonable expectation of privacy.

The FBI building is sort of like that, but not nearly as clear. However, think about this: if someone talks to their lawyer while they are alone in an interrogation room and the cops listen, that is a clear violation. In the same way, if you are speaking to a clergyman alone in a room, with the intent to speak to them with their god hat on, it’s not unreasonable to believe it’s confidential.

In the Bones episode, her surprise when he switches hats is a pretty clear indication of her intent. The privilege exists to make sure people can speak freely to their clergyman; requiring a disclaimer would go against that.

I’d expect the state to make the argument that she didn’t intend confidentiality, and both the state and I would expect the judge to rule that it was confidential.

Also, you are sort of confusing confidential with privileged. Let’s say you are talking to me. Confidential means I can’t tell others what you said. If I told them, I might be committing malpractice. Priests don’t neccesarily have a duty of confidentiality except that given to them by the church.

Privileged means even if I do tell people, or someone records it, it can’t be used in court. The priest can tell the FBI what she said, but she can claim the privilege regardless, just like if you confessed a murder to your lawyer and someone recorded it, it’s still not admissible.