RULE 505. RELIGIOUS PRIVILEGE
As used in In this rule:
A "clergyman" is "Cleric" means 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 the cleric.
(2) A communication is "confidential" if it is 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 An individual has a
privilege to refuse to disclose
and to prevent another from disclosing a confidential communication by the
individual to a clergyman cleric in his
the cleric's professional character as spiritual adviser.
(c) Who may claim the privilege. The privilege under this rule may be claimed by
person, by his an individual or the individual's guardian or conservator, or
by his the
individual's personal representative if he the individual is
deceased. The person individual
who was the clergyman cleric at the time of the communication is
presumed to have
authority to claim the privilege but only on behalf of the communicant.
Rule 505 was amended, effective__________________.
follows the language of is based on Rule 505 of the
Uniform Rules of Evidence
(1974). It provides the privilege that has been traditionally termed the "priest-penitent"
privilege, although it does so in a form that gives the privilege a somewhat wider scope.
Originally, this privilege was granted only to penitents and priests, and then only if the communication was made in confession, an institution of the Catholic Church which is cloaked with absolute secrecy. Gradually, the application of the privilege was broadened; before the promulgation of this rule, North Dakota statutory law protected communications made to a "clergyman or priest," but only if the communications were made in "confession."
Subdivision Paragraph (a)(1) makes it clear that the privilege
applies not only to certain
named members of the clergy, but also to "other similar functionar(ies) of a religious
organization." It will be the function of the courts to determine whether, in a given case, the
status of the spiritual adviser is such that invocation of the privilege is warranted.
subdivision paragraph (a)(2), a communication may be
confidential even though other persons are present, but only if the person's presence is
necessary to further the purpose of the communication.
The general rule of privilege contained in subdivision (b) protects from disclosure
communications made to a
clergyman cleric acting in a " in
his professional character as
spiritual adviser." Thus, although the privilege is no longer confined to the confessional, it
must be made to a clergyman cleric acting in his
a professional capacity.
In keeping with the belief that there may be occasions in which it is appropriate for a
guardian or personal representative to claim a privilege, subdivision (c) provides for these
parties to make the claim on behalf of the holder. The
may, of course, claim
the privilege on behalf of the communicant.
Rule 505 was amended, effective_______________, to follow the 1999 amendments to Uniform Rule of Evidence 505. The gender specific term "clergyman" is replaced in the rule with the neutral term "cleric" and the term "person" is replaced with "individual," which is intended to mean a human being. The amendments to the rule's terminology are not intended to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April 25-26, 2013,
page 33; January 29,
1976, page 7. Rule 505, Uniform Rules of Evidence (1974).
Superseded: N.D.C.C. § 31-01-06(2).