Consistent with common law, Delaware Rule of Evidence 505 recognizes that 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 acting in a professional character as a spiritual advisor.65
A “member of the clergy” 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.66 A deacon in a non-denominational ministry who is an assistant to an Elder who is an assistant to the Pastor is not considered a minister or similar functionary.66.1 Whether a religious official is an “individual reasonably believed to be” a member of the clergy depends on the facts, including whether the claimant of the privilege ever attended the house of worship of recipient of the communication claimed to be considered a member of the clergy; whether the recipient of the communication ever said he was a minister of other member of the clergy; the extent to which the claimant was aware of the hierarchy of the religious denomination in question; and whether the communication in question was in furtherance of obtaining spiritual advice.66.2
A communication is “confidential” for the purpose of the religious privilege if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.67
A privilege may be claimed by the person, by the person’s guardian or conservator or by a personal representative if the person is deceased. A member of the clergy may claim the privilege on behalf of the person, and the authority to do so is presumed in the absence of evidence to the contrary.68
65. D.R.E. 505(b).
66. D.R.E. 505(a)(1).
66.1. State v. Price, 881 A.2d 1082, 1084 (Del. Super. 2005).
66.2. State v. Price, 881 A.2d 1082, 1084-85 (Del. Super. 2005).
67. D.R.E. 505(a)(2).
68. D.R.E. 505(c).
© 2010 David L. Finger