(a) Definitions. In this rule:
(1) "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 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. An individual has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the individual to a cleric in the cleric's professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege under this rule may be claimed by an individual or the individual's guardian or conservator, or by the individual's personal representative if the individual is deceased. The individual who was the 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 March 1, 2014.
Rule 505 is based on Rule 505 of the Uniform Rules of Evidence. 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."
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.
Under paragraph (a)(2), a communication may be considered 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 cleric acting in a "professional character as spiritual adviser." Thus, although the privilege is no longer confined to the confessional, it must be made to a cleric acting in 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 cleric may, of course, claim the privilege on behalf of the communicant.
Rule 505 was amended, effective March 1, 2014, 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.
SUPERSEDED: N.D.C.C. § 31-01-06(2).