DOCSLIB.ORG

You've Got a Confession (Of Judgment). Now What?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
You've Got a Confession (Of Judgment). Now What? STEPHEN G. RINEHART ([email protected]) is a part- ner at Troutman Sanders in New York City. He earned his J.D. from New York University and his B.A. from Harvard University. ADAM S. LIBOVE ([email protected]) is an associate at Troutman Sanders in New York City. He earned his J.D. from Fordham University and his B.A. from Columbia University. You’ve Got a Confession (of Judgment). Now What? By Stephen G. Rinehart and Adam S. Libove What Is a Judgment by Confession? ment”2), in New York, the defendant must execute an A confession of judgment is an affidavit in which a party affidavit that states the sum for which judgment may admits liability to another party, accepts a quantification be entered, authorizes entry of judgment, and states the of damages and agrees that the affidavit may be filed as county where the defendant resides or, if the defendant is a judgment upon the occurrence of a stated condition, a non-resident, the county in which entry is authorized.3 usually an affidavit from the creditor attesting to the The affidavit must also state concisely the facts out of default. A judgment by confession can be a useful tool for which the debt arose and indicate that the sum confessed a creditor because it avoids costly and time-consuming is justly due or to become due.4 This requirement has litigation. The number of confessions filed in New York been interpreted to mean that “there must be sufficient County has risen dramatically in the wake of the 2008 genuine detail to enable other creditors to investigate economic crisis.1 This, combined with drastic staffing the claim and ascertain its validity.”5 If the judgment to reductions in the Supreme Court and the Clerk’s office be confessed is for the purpose of securing the plaintiff and the increased use of sophisticated and complicated against a contingent liability, the defendant’s affidavit confessions, has led to more confessions being rejected. must concisely state the facts constituting the liability and This article reviews the legal requirements for filing a demonstrate that the sum confessed does not exceed the judgment by confession, offers some practical guidance amount of liability.6 to facilitate filing, and reviews certain aspects of the An affidavit of confession of judgment may be filed usury law and common law on interest rates with which with the clerk of the county where the defendant stated in counsel should be familiar. Finally, this article reviews the affidavit that he or she resided when it was executed, available litigation options when initial attempts to file a or if the defendant was then a non-resident, with the clerk confession prove unsuccessful. of the county designated in the affidavit, within three years after the affidavit is executed.7 In addition to calcu- Requirements of CPLR 3218 lating the principal and interest owed on the judgment, CPLR 3218 addresses judgments by confession and sets the Clerk will tax costs, generally adding a $210 filing forth the requirements for filing. Unlike some other states fee.8 Under CPLR 3218 the judgment may be docketed where a judgment by confession may be filed upon an and enforced in the same manner and with the same attorney’s affirmation (often called a “cognovit judg- effect as a judgment in an action in the Supreme Court.9 36 | March/April 2012 | NYSBA Journal The Appellate Division, First Department has held that a authority to reject papers offered for filing unless the judgment by confession has “all of the qualities, incidents refusal is directed by law, rule, or court order.17 Based on and attributes of a judgment on a verdict, including a the foregoing, the court directed the Clerk to accept for presumption as to its validity.”10 filing copies of the affidavits pursuant to CPLR 3218(b).18 A judgment creditor seeking to file a judgment by Notwithstanding the Gehring decision, based on the confession should also file an affidavit of the plaintiff New York County Clerk’s current practices counsel is that relates any important events that occurred after the advised to present original affidavits to avoid delay in defendant executed the affidavit of confession, including filing judgments by confession. any payments of principal or interest that the defendant made before default. The plaintiff’s affidavit can also Usurers Beware include a detailed calculation of the applicable pre- Usury Defined Under the General Obligations Law, judgment interest, including a per diem rate so that the the Banking Law and the Penal Law Clerk can account for the precise day of filing. The inter- The Clerk may refuse to file and enter a judgment by est calculations can also be submitted in the form of an confession if the Clerk believes the interest rate charged attorney’s affirmation. When presenting the confession therein is usurious.19 Thus, it is critical to understand the for filing, counsel should also have on hand a copy of web of New York statutes concerning usury. With cer- the promissory note or other instrument setting forth tain significant exceptions discussed below, the General the interest rate because the Clerk will generally ask to Obligations Law caps the maximum interest rate upon review same before filing the affidavit and entering judg- a loan or forbearance of any money, goods, or things in ment. action at 6% with the important qualifier “unless a differ- ent rate is prescribed in section fourteen-a of the banking Please! File Original Affidavits of Confession of law.”20 The Banking Law, in turn, sets the maximum rate Judgment of interest at 16% per year.21 Practitioners should be aware that the New York County There are, however, important exceptions to the 16% Clerk’s office generally requires original signatures on maximum. For example, loans of $250,000 or more, except the documents it accepts for filing. Confessions of judg- a loan or a forbearance secured primarily by an inter- ment and the accompanying defendant’s affidavit are no est in real property improved by a one- or two-family exception to this practice. Notably, CPLR 3218 does not residence, are exempt from the 16% maximum22 but must expressly require that the defendant’s affidavit of confes- still comply with the criminal usury statutes. The crimi- sion be an original. Indeed, two provisions of the CPLR nal laws set the maximum interest rate at 25% per year.23 and a New York County Supreme Court decision suggest Further, a loan of $2.5 million or more is exempt from that the Clerk’s practice may be extralegal. both the civil cap of 16% and the criminal cap of 25%.24 CPLR 2101(e) states in pertinent part: “Except where otherwise specifically prescribed, copies, rather than When Calculating the Interest Rate for Usury originals, of all papers, including orders, affidavits and Purposes, Remember to Use the Net Loan Amount exhibits may be served or filed.”11 Similarly, CPLR 2102(c) To determine the interest rate on a loan for usury pur- provides: “A clerk shall not refuse to accept for filing poses, prepaid interest or discounts may generally be any paper presented for that purpose except where spe- amortized over the entire loan term.25 That is, when cal- cifically directed to do so by statute or rules promulgated culating the interest rate, the original principal amount is by the chief administrator of the courts, or order of the not considered the amount of the loan. Instead, only the court.”12 net principal amount actually received by the borrower – In Gehring v. Goodman,13 the New York County after deducting points and other fees considered interest Supreme Court adjudicated an Article 78 petition seeking and paid from the loan proceeds – is considered as the an order directing the New York County Clerk to accept amount of the loan.26 Failing to heed this rule increases for filing copies of affidavits that the petitioner wanted the loan’s interest rate for usury purposes and may cause to file, pursuant to CPLR 3218(b).14 The court noted that the loan to be usurious even if the face amount of the loan “CPLR 3218(b) does not specify that only the original is nominally below the usury rate.27 of the affidavit must be accepted for filing and does not proscribe the filing of a copy of the affidavit” and that Usury Is a Defense Personal to the Borrower “CPLR 2101(e) allows the filing of copies of affidavits.”15 As noted, the New York County Clerk may refuse to The court went on to say that “[t]here is neither a statute enter a confession of judgment if the underlying interest nor rule of the Chief Administrator of the Courts that rate is deemed usurious. This practice notwithstand- directs respondent to refuse to accept for filing a copy of ing, the defense of usury is personal to the borrower,28 an affidavit under CPLR 3218(b).”16 Citing to McKinney’s that is, it may be asserted only by the borrower, not by Supplemental Practice Commentaries, the court added someone else on the borrower’s behalf. This raises the that the purpose of CPLR 2102(c) is to strip clerks of any question of whether the Clerk has standing to reject an NYSBA Journal | March/April 2012 | 37 instrument for filing based on usury or, rather, whether CPLR; (2) file an action for summary judgment in lieu of such a defense must be raised by the judgment debtor complaint under CPLR 3213 against the putative judg- in a plenary action.29 In a recent decision, the New York ment debtor; or (3) seek an order to show cause pursuant County Supreme Court held that a determination by the to CPLR 3218 against the putative judgment debtor.
Load more

Recommended publications
  • International Tribunals and Rules of Evidence: the Case for Respecting and Preserving the "Priest-Penitent" Privilege Under International Law
    American University International Law Review Volume 15 | Issue 3 Article 3 2000 International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the "Priest- Penitent" Privilege Under International Law Robert John Araujo S.J. Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Araujo, S.J., Robert John. "International Tribunals and Rules of Evidence: The asC e for Respecting and Preserving the "Priest-Penitent" Privilege Under International Law." American University International Law Review 15, no. 3 (2000): 639-666. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. INTERNATIONAL TRIBUNALS AND RULES OF EVIDENCE: THE CASE FOR RESPECTING AND PRESERVING THE "PRIEST-PENITENT" PRIVILEGE UNDER INTERNATIONAL LAW ROBERT JOHN ARAUJO, S.J." INTRODUCTION .............................................. 640 I. THE PRIEST-PENITENT PRIVILEGE'S ORIGINS ........ 643 II. THE PRIVILEGE AT CIVIL AND COMMON LAW ....... 648 A. EUROPE, CANADA, AUSTRALIA, AND NEW ZEALAND ....... 648 B. THE UNITED STATES ...................................... 657 Ed. THE PRIVILEGE UNDER INTERNATIONAL LAW ....... 661 CONCLU SION ................................................. 665 The Lord spoke to Moses, saying: Speak to the Israelites-When a man or woman wrongs another, breaking faith with the Lord, that person in- curs guilt and shall confess the sin that has been committed. The person shall make full restitution for the wrong, adding one fifth to it, and giving it to the one who was wronged!' If we confess our sins, he who is faithful and just will forgive us our sins and cleanse us from all unrighteousness.
    [Show full text]
  • Confessions of Third Persons in Criminal Cases L
    Cornell Law Review Volume 1 Article 3 Issue 2 January 1916 Confessions of Third Persons in Criminal Cases L. A. Wilder Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation L. A. Wilder, Confessions of Third Persons in Criminal Cases, 1 Cornell L. Rev. 82 (1916) Available at: http://scholarship.law.cornell.edu/clr/vol1/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. CONFESSIONS OF THIRD PERSONS IN CRIMINAL CASES By L. A. WILDER1 Why should a confession of a specific crime, which would be admis- sible against the confessor if he were on trial, be inadmissible in favor of a third person charged with the offense, when the confessor is not available as a witness? No doubt the average layman would declare this state of the law glaringly inconsistent in itself, and wholly incompatible with the professed attitude of criminal courts toward accused persons. And while the general sense of justice in the abstract is not always a true test of justice in the concrete, the fact that it is shocked by the denial to A of the benefit of B's confession, however voluntary and reliable it may be, is sufficient to justify a comment upon the rule which so excludes the confession. Of course, it is understood that the confession (as distinguished from an admission) is admitted in evidence against the confessor by virtue of that exception to the hearsay rule, which lets in declara- tions against the interest of the declarant.
    [Show full text]
  • Questions and Answers
    Journal of Criminal Law and Criminology Volume 34 | Issue 1 Article 8 1943 Questions and Answers Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Questions and Answers, 34 J. Crim. L. & Criminology 43 (1943-1944) This Correspondence is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. Questions and Answers David Geeting Monroe (Ed.) Long before the science of criminal investigation came into repute, enforcement officials had come to rely upon the confession as an important means of establishing guilt. The courts, for example, viewed confessions as one of the best and most substantial species of evidence. They assumed, and correctly, that no person in the full possession of his faculties would voluntarily' sacrifice life, liberty, or property by confessing to a crime he did not commit. And from the point of view of the police, the confession offered an invaluable means of disclosing guilt in light of the exceptional difficulties involved in fixing criminality. For crimes in large part are cloaked in secrecy and men conscious of criminal purpose seek to shelter their knavery from the observing eyes of others. Thus, through the ages, the confession has held a significant position in the field of crime repression. Nevertheless, use of confessional evidence has suffered an harrassed and checkered career and on innumerable occasions has obstructed the normal functioning of enforcement.
    [Show full text]
  • Cross Examining Police in False Confession Cases By: Attorney Deja Vishny*
    The WISCONSIN Winter/Spring 2008 DEFENDER Volume 16, Issue 1 Cross Examining Police in False Confession Cases By: Attorney Deja Vishny* Many criminal defense lawyers are filled with dread at the idea of trying a confession case. We think the jury will never accept that people give false confessions. We worry that jurors and courts will always believe that because our clients gave a recorded confession, they must have committed the crime. Our experience in motion litigation has taught us that judges rarely, if ever, take the risk of suppressing the confession particularly when a crime is horrifying and highly publicized. Since the advent of mandatory recorded interrogation in juvenile and felony cases we have been lucky enough to be able to listen to the recording and pinpoint exactly how law enforcement agents are able to get our clients to confess. No longer is the process of getting a confession shrouded in mystery as the police enter into a closed off locked room with a suspect who is determined to maintain their innocence and emerge hours (sometimes days) later with a signed statement that proclaims “I did it”. However, defense lawyers listening to the tapes must be able to appreciate the significance of what is being said to cajole a confession. The lawyer handling a recorded interrogation case should always listen carefully to the recording of the entire interrogation as early as possible in the case. There have been many occasions of discrepancies between how a police officer will characterize the confession in testimony or a written report from how the statement was actually developed and what the tape shows the client’s actual words were.
    [Show full text]
  • Criminal Law-Evidence--Confession to Polygraph Operator Prior to Actual Test Held Admissible
    University of Richmond Law Review Volume 9 | Issue 2 Article 13 1975 Criminal Law-Evidence--Confession to Polygraph Operator Prior to Actual Test Held Admissible Follow this and additional works at: http://scholarship.richmond.edu/lawreview Part of the Criminal Law Commons Recommended Citation Criminal Law-Evidence--Confession to Polygraph Operator Prior to Actual Test Held Admissible, 9 U. Rich. L. Rev. 377 (1975). Available at: http://scholarship.richmond.edu/lawreview/vol9/iss2/13 This Recent Decision is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. Criminal Law-Evidence-CONFESSION TO POLYGRAPH OPERATOR PRIOR TO ACTUAL TEST HELD ADMISSIBLE-Jones v. Commonwealth, 214 Va. 723, 204 S.E.2d 247 (1974). Rules of evidence governing the admissibility of confessions have devel- oped gradually throughout the history of Anglo-American jurisprudence. Initially any confession was admissible regardless of the methods by which it was obtained.' The basic consideration was that the evidence admitted be truthful and reliable. 2 To protect the integrity of judicial proceedings, safeguards were later developed to insure the reliability of confessions by a determination of the voluntariness with which they were given.3 Courts have struggled with the problem of formulating a workable definition of voluntariness and have not yet developed a uniform substantive test.' Several procedures have been developed to provide for a determination of the voluntariness of a confession.' Virginia follows the "Wigmore" or 1.
    [Show full text]
  • The Clergy-Penitent Privilege: an Overview
    The Clergy-Penitent Privilege: An Overview The Clergy-Penitent Privilege: An Overview F. Robert Radel, II Andrew A. Labbe I. Introduction The clergy-penitent privilege is one of the oldest and most well-recognized privileges in the United States. While other once-recognized privileges have since withered or fallen from the vine, there remains considerable support for the clergy-penitent privilege.1 How- ever, many debate the rationale behind this privilege, and some question whether it will survive. Nowhere is this controversy clearer than in the interplay between the privilege and mandatory child abuse reporting laws, which have limited, and in some instances abrogated, the privilege. Jurisdictions throughout the country have struggled with striking a balance between what many consider one of the most sacred privileges at law and the safety of children. Some argue that the privilege must be protected at all costs, some that it should be done away with completely, and others attempt to find a middle ground. This debate was reignited last year following a decision from the Supreme Court of Louisiana, which revived a lawsuit contending that a priest should have reported accusations of sexual abuse disclosed to him during a confession.2 This decision is discussed in this article. This article discusses the history of the clergy-penitent privilege, considers the interplay between the privilege and mandatory child reporting laws, and addresses the arguments for limiting or abrogating the privilege. Finally, this article suggests a workable balance between protecting confidential religious communications and protecting children from abusers. 1 Even the attorney-client privilege, which is undoubtedly the most well established privilege, has become more limited in its application.
    [Show full text]
  • Rape Shield Statute This Outline Has Several Objectives
    APAAC 2014 Seminar: Rape Shield Statute This outline has several objectives: (1) providing the reader with an overview of the historical development of the rape-shield doctrine in Arizona; (2) summarizing how Arizona courts have resolved certain federal and state constitutional challenges to the preclusion of evidence pursuant to A.R.S. § 13-1421 and its common-law antecedents; (3) identifying the current state of the law; and (4) offering practical advice about how to minimize the likelihood of reversal when evidence is precluded pursuant to Arizona’s rape-shield statute for not falling within one of the five exceptions set forth in Section 13-1421(A)(1)-(5). Historical development. 1. Several years before promulgating the Arizona Rules of Evidence, the Arizona Supreme Court “affirmatively established a rape shield that prohibits admission of a victim’s sexual history as evidence of bad character or consent except in highly particularized situations.” State v. Lujan, 192 Ariz. 448, 452, ¶ 14, 967 P.2d 123, 127 (1998) (citing Pope v. Superior Court, 113 Ariz. 22, 28–29, 545 P.2d 946, 952– 53 (1976)). 2. The event that triggered the adoption of the rape-shield doctrine in our state was the necessity of repudiating the following rule of law, which had allowed rape defendants to offer evidence of the victim’s prior sexual activity in order to establish consent to the charged act of intercourse: “If consent be a defense to the charge, then certainly any evidence which reasonably tends to show consent is relevant and material, and common experience teaches us that the woman who has once departed from the paths of virtue is far more apt to consent to another lapse than is the one who has never stepped aside from that path.” State v.
    [Show full text]
  • Priest-Penitent Privilege Statutes: Dual Protection in the Confessional
    Catholic University Law Review Volume 43 Issue 4 Summer 1994 Article 4 1994 Priest-Penitent Privilege Statutes: Dual Protection in the Confessional Julie Ann Sippel Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Julie A. Sippel, Priest-Penitent Privilege Statutes: Dual Protection in the Confessional, 43 Cath. U. L. Rev. 1127 (1994). Available at: https://scholarship.law.edu/lawreview/vol43/iss4/4 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. COMMENT PRIEST-PENITENT PRIVILEGE STATUTES: DUAL PROTECTION IN THE CONFESSIONAL Society traditionally regards certain relationships as confidential and accords them special protection at law.1 One such protection is the testi- monial privilege, which prohibits one or both of the parties from testify- ing in court regarding certain communications between them.2 Historically, courts have extended this testimonial privilege to the priest- penitent relationship.' As few cases involving issues of priest-penitent privileged communications reach the appellate level, it is difficult to com- prehend fully the vast number of priest-penitent issues that actually arise.4 The significance of and need for the privilege is reflected by the fact that all fifty states and the District of Columbia have enacted statutes 5 recognizing the privilege. 1. See generally Developments in the Law-PrivilegedCommunications, 98 HARV. L. REV. 1450 (1985) (explaining the history and development of legal relationships pertaining to certain types of relationships under American law).
    [Show full text]
  • Consultation Paper on Hearsay in Criminal Proceedings
    CONSULTATION PAPER ON HEARSAY IN CRIMINAL PROCEEDINGS EXECUTIVE SUMMARY The Sub-committee's approach to this topic is to consider the following questions: z whether the shortcomings of the existing hearsay law in criminal proceedings are serious enough to warrant its reform; z if reform is called for, what safeguards are a prerequisite for any reform; z what are the possible options for reform; z whether the proposed model of reform (which consists of a Core Scheme and a series of proposals on special topics) is sufficient to address the most pressing shortcomings of the present law; and z whether the recommendations in the Consultation Paper are compatible with the laws guarding the fundamental rights and freedoms in Hong Kong. Terms of reference 1. In May 2001, the Chief Justice and the Secretary for Justice directed the Law Reform Commission: "To review the law in Hong Kong governing hearsay evidence in criminal proceedings, and to consider and make such recommendations for reforms as may be necessary." 2. A sub-committee was appointed under the chairmanship of the Hon Mr Justice Stock to consider the subject. The consultation paper on "Hearsay in Criminal Proceedings" is the result of the sub-committee's detailed consideration of the subject. The consultation paper sets out the sub-committee’s proposals for reform of the law of hearsay in criminal proceedings and seeks to elicit comment on those proposals. What is "the rule against hearsay"? 3. A simple explanation of the term "hearsay" would be that "when A tells a court what B has told him, that evidence is called hearsay".1 The rule 1 R May, Criminal Evidence (Sweet & Maxwell, 3rd edition, 1995), at 179.
    [Show full text]
  • To Proffer Or Not to Proffer? That Is the Question
    G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM ©2009 IncisiVE Media US PROperties, LLC VOLUME 241—NO. 1 TUESDAY, JUNE 9, 2009 Outside Counsel Expert Analysis To Proffer or Not to Proffer? That Is the Question awyers familiar with white collar or inadmissibility of a plea, a plea discus- criminal investigations know well the sion, and any related statement is governed dangers of engaging in client “prof- by Federal Rule of Evidence 410.” Rule 410 fers.” A client proffer occurs when a prohibits the admission into evidence of client is interviewed directly by the “any statement made in the course of plea Lprosecutor during the course of the inves- discussions with an attorney for the pros- tigation, even as the prosecutor is trying ecuting authority which do not result in a to build a case, perhaps against that very plea of guilty or which result in a plea of client. From the defense lawyer’s perspec- guilty later withdrawn.” tive, such sessions are fraught with peril; By And The underlying purpose of Rule 410 is a statement by the client made innocently, Richard M. Yvonne M. the same as the initial purpose behind but inaccurately, may provide the spark Strassberg Cristovici the proffer agreement—to promote plea that sets the investigation on fire. None- negotiations and facilitate the investigative theless, counsel are often confronted with evidence or arguments offered or elicited process by permitting defendants to talk the practical reality of clients who want by the defense, even on cross examination openly to prosecutors without sacrificing to speak to the government, perhaps to of government witnesses, and, in the South- their ability to defend themselves at trial be cooperative or to avoid regulatory or ern District, to rebut arguments or issues if no disposition is reached.
    [Show full text]
  • Legal Professional Privilege
    Legal Professional Privilege: The influence of Jeremy Bentham and John Henry Wigmore on the judicial pronouncement of Lord Taylor of Gosforth in R v Derby Magistrates’ Court; ex parte B. Olivia Grosser-Ljubanovic Thesis submitted for the degree of Doctor of Philosophy Adelaide Law School The University of Adelaide April 2018 Contents CONTENTS Contents ............................................................................................................. iii Abstract ............................................................................................................. vii Declaration ......................................................................................................... ix Acknowledgements ............................................................................................ xi List of Publications........................................................................................... xiii Chapter I: Introduction ........................................................................................ 1 I Significance and Limits of this Study ............................................................... 4 II Methodology .................................................................................................. 6 III Structure ................................................................................................... 7 Chapter II: Derby: The Ultimate Arbiter of Legal Professional Privilege ........... 11 I Introduction ..................................................................................................
    [Show full text]
  • The Inadequacies of the Clergy-Penitent Privilege
    FORGIVE US OUR SINS: THE INADEQUACIES OF THE CLERGY-PENITENT PRIVILEGE RONALD J. COLOMBO* INTRODUCTION One of the many common law rules to take hold in the United States is the "clergy-penitent" privilege.' An evidentiary rule, the clergy-penitent privilege protects from revelation evidence concerning a penitent's communication with his cleric. Simultaneously, the First Amendment to the Constitution addresses the interaction of church and state via the Establishment Clause and Free Exercise Clause, rais- ing the following question: to what extent is the common law clergy- penitent privilege abrogated or expanded by the First Amendment? This Note will demonstrate that, as understood by most courts and legislatures, the clergy-penitent privilege does not conform com- pletely to the requirements of the First Amendment. As a result, the privilege at times violates the Amendment's Establishment Clause by unduly preferencing religion. Additionally, at other times the privi- lege's protections are insufficient, offending the notions of religious liberty and tolerance upon which both the First Amendment's Estab- lishment Clause and Free Exercise Clause were built. A vivid example of the inadequacies of the current system is pro- vided in Commonwealth v. Kane.2 In Kane, a Roman Catholic priest refused to testify to communications the defendant made to him, although the defendant had waived his rights to the privilege and con- sented to the disclosure of the communications in question.3 The de- fendant's position was that he had confessed nothing inculpatory, and he wanted the priest to corroborate this.4 The court held that the right to assert the privilege was the defendant's and that the priest's refusal to testify after the defendant's waiver was unlawful.5 The * I would like to thank Professor Christopher L Eisgruber and the members of the New York University Law Review for their assistance regarding this Note.
    [Show full text]