Written by Don Byrd
A prisoner’s communication with a person reasonably believed by that prisoner to be clergy, who regularly engages in prison ministry, does not have to be ordained for those communications to be privileged.That is the conclusion of a federal judge in Kansas, overturning a magistrate judge’s ruling that such communication could be used to prosecute the prison minister because she was not ordained.
From the opinion, which relied on proposed Federal Rule of Evidence 506:
[P]roposed Rule 506 does not require formal ordination, and applies to any “minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.” The facts are uncontroverted that Dillard was acting as a functionary of CMO, which is an explicitly religious organization. Moreover, regardless of her actual status with CMO, it also is uncontroverted that Dillard visited Roeder as a part of the CMO program and while wearing a CMO identification badge. Accordingly, Roeder would have “reasonably believed” that Dillard had this status, and thus the privilege would apply.
To deny privileged status to communication with lay ministers may also have courts improperly inquiring into religious qualifications, an Establishment Clause concern the court also noted but did not need to address.
