Printable Format60-429. Penitential communication privilege. (a) Definitions. As used in this section, (1) the term "duly ordained minister of religion" means a person who has been ordained, in accordance with the ceremonial ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his or her regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization; (2) the term "regular minister of religion" means one who as his or her customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he or she is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister; (3) the term "regular or duly ordained minister of religion" does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his or her church, sect, or organization; (4) "penitent" means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God's mercy or forgiveness for past culpable conduct; (5) "penitential communication" means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent's moral obligations, or to obtaining God's mercy or forgiveness for past culpable conduct.
(b) Privilege. A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.
History: L. 1963, ch. 303, 60-429; January 1, 1964.
Source or prior law:
G.S. 1868, ch. 80, § 323; L. 1909, ch. 182, § 321; R.S. 1923, 60-2805 (5th clause).
Law Review and Bar Journal References:
Survey of law of evidence, Spencer A. Gard, 12 K.L.R. 239, 240 (1963).
Quoted, discussed in detail and compared to prior law in "Penitent Privilege Under the New Code," Emmet A. Blaes, 33 J.B.A.K. 279 (1964).
"The Psychotherapists' Privilege," Craig Kennedy, 12 W.L.J. 297, 299 (1973).
"Medical Malpractice Litigation: The Discoverability and Use of Hospitals' Quality Assurance," Reid F. Holbrook and Lee J. Dunn, Jr., 16 W.L.J. 54, 63 (1976).
"Evidence: The Psychotherapist—Patient Privilege Under Federal Rule of Evidence 501," Lauren Messersmith, 23 W.L.J. 706, 707 (1984).
"The Psychologist-Patient Privilege: Time for a Change in Kansas, or is it all in our Heads?" Boyd Isherwood, 37 W.L.J. 659 (1998).
"Invocation of the Fifth Amendment in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences," Jeff D. Morris, 73 J.K.B.A. No. 3, 14 (2004).
"Invocation of the Fifth Amendment Privilege in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences," Jeff D. Morris, 73 J.K.B.A. No. 3, 14 (2004).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2805 (5th clause) and the 1961 Supp. thereto.
1. Testimony erroneously admitted only technical error. Craig v. Craig, 197 Kan. 345, 349, 416 P.2d 297.
2. Cited; where defendant testified at own trial, court erred in prohibiting cross-examination regarding refusal to testify at earlier trial of fellow defendant. State v. Nott, 234 Kan. 34, 40, 669 P.2d 660 (1983).
3. Cited; objection to admissibility of statements by defendant or counsel at diversion conference not available to codefendant. State v. Wilkins, 9 Kan. App. 2d 331, 333, 676 P.2d 159 (1984).
4. Cited; communications between spouses in presence of or overheard by others not privileged; privilege limited to communications seeking to transmit information. State v. Newman, 235 Kan. 29, 40, 680 P.2d 257 (1984).
5. Privilege not asserted during trial; no record of context of communication; relief under K.S.A. 21-4627 denied. State v. Spry, 266 Kan. 523, 529, 973 P.2d 783 (1999).
6. Section does not require formal ordination as a prerequisite to qualify as a "clergyman" for purposes of clergy-penitent privilege. U.S. v. Dillard, 989 F.3d 1155, 1162 (D. Kan. 2014).