Rule 505 Religious Privilege

Maine Restyling Note [November 2014]

Maine Rule 505 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule. Among the changes recommended for the Maine privileges was to Rule 505. The definition of “member of the clergy” has been revised to be inclusive of all religions, but the language remains restrictive in ensuring that the privilege may not be applied to communications with members of the clergy who are not specifically certified or ordained by a religious community. Thus, communications involving lay practitioners who participate in teaching or advisory roles, for example, would not fall under the privilege.

Advisers’ Note to former M.R. Evid. 505

(February 2, 1976)

There is a statutory privilege for penitential communications to clergymen. 16 M.R.S.A. § 57,58 added by P.L. 1965, c. 117. This rule accepts the privilege but modifies it slightly to conform to the style of the other privilege rules. The definition of clergyman is changed to include a person reasonably believed to be one by the person consulting him. The privilege protects a communication to a clergyman in his professional character as spiritual adviser but does not require, as the statute does, that it be “made in the course of the discipline or practice of the church or religious denomination or organization of which the penitent is a member.” There seems to be no good reason not to include within the privilege a confidential communication made to a spiritual adviser as such even though the penitent was not a member of his church or denomination. The rule is designed to protect the confidentiality of communications on a wide variety of ethical and moral issues.

58 This statute has been repealed.