The Penitent's Privilege, A Ring of Truth, and Common Sense

I blogged the other day about the cleric-penitent privilege based on the recent decision State of New Jersey v. J.G.

This opinion reminded me of a family court trial in Philadelphia I observed a couple of years ago. The evidence in that trial, in brief, implicated a group of male students who caused a very big commotion in their school. They were charged, among other things, with starting a riot.

The government's witnesses testified, and at the end of the trial the judge acquitted the boys for the riot offense. The Assistant District Attorney argued, citing the statutory elements of "riot" and insisting the testimony satisfied these requirements.

The judge responded succinctly, telling the A.D.A. he had obviously never witnessed a real riot. The debate on legislative intent ended there.

Justice Rivera-Soto's argues in his dissenting opinion here that the law should parallel a penitent's religion in affording a privilege in court. We are talking, after all, about the cleric-penitent privilege. Were it not for any participation in organized religion, the party would not be able to raise it.

Even in light of the majority opinion--based on statutory history, the legislative record, and canons of construction--the majority apparently ignored the title of the privilege. From this perspective, the majority analysis, impressive though it is, simply does not ring true. State of New Jersey v. J.G.