Crime in Texas, Trial in Texas, Confession to Clergy in North Carolina: Which Law Applies?

By design, our American legal system largely lets different states make different rules. Most states recognize a tort of disclosure of private facts; some don't. A few recognize a tort of alienation of affections; most don't. Some states allow first-cousin marriage; others don't. Some set a one-year statute of limitations for defamation; some set it at two or three years. The list goes on.

Much conduct happens in one state, and the resulting disputes arise in the courts of that state. But other matters are multi-state affairs. Indeed, some are multinational affairs, even though they end up in one country's courts: What happens if a contract was entered into in France, performed in Canada, but plaintiff sues defendant over an alleged breach where they now both live, in Illinois?

There is therefore a body of law called "conflict of laws" (or "choice of laws") that tries to resolve these questions. As it happens, that is itself state law, so different states can have different conflicts rules, with at least three major schools of thought on the matter. (Think that's confusing? Don't get me started on renvoi and dépeçage.)

Here's a scenario that arose in the recent Texas Campbell v. State case:

Appellant was charged, in Harris County, Texas, with murdering his girlfriend. His girlfriend was killed in Texas. And then Appellant went to his mother's home in North Carolina.

While he was in North Carolina, Appellant's mother urged Appellant to speak with a bishop on the telephone. While he was on the phone with the bishop, and allegedly with his mother still in the room, Appellant made a statement admitting that he killed his girlfriend. During trial, the bishop was called to testify as a witness about the contents of Appellant's statement….

Texas Rule of Evidence 505(b) sets forth a clergy-penitent testimonial privilege:

A communicant has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication by the communicant to a clergy member in the clergy member's professional capacity as a spiritual advisor.

{[A communication is] "confidential" if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.}

But though all states have some clergy-penitent privilege, North Carolina courts have interpreted the N.C. privilege statute as not applying "when the disclosures are made in the presence of a third party," apparently with no exception (as in Texas and some other states) for people "present to further the purpose of the communication."

Gonzalez v. State (2001), a precedent from the Texas Court of Criminal Appeals (Texas's highest court for criminal laws) relied on the Restatement (Second) of Conflict of Laws and its "most significant relationship test" when determining which state's law applies. (The Restatement is an influential work compiled by the American Law Institute, a generally highly respected organization of lawyers, judges, and academics; many courts find it persuasive, as the Texas court did in Gnozalez.)

And the court concluded, citing the comments to the Restatement, "that the state where the communication took place is generally the state with the most significant relationship." Based on that precedent, a Texas appellate court in Campbell held that North Carolina law applied, and that the communication was admissible.

But Texas Court of Criminal Appeals Judge Kevin Yeary took a different view dissenting from denial of review in September:

[T]he Restatement is not the law of this state. When our Texas Rules of Evidence were adopted, this state did not incorporate language from the Restatement demanding that a different rule should apply when a clergy-communicant statement is made outside of our state's borders.

There is also no textual basis for any argument that any conflict between the laws of another state and our state's Rules of Evidence should be considered. Our state's rule on clergy-communications contains no exception for circumstances in which such a communication occurs in a different state. There appears to be no true legal reason to even dwell on such a question, unless perhaps a court just does not like our rule of evidence!

We are not bound by the Restatements of the Laws. We should not consider ourselves to be controlled by them in any regard. We should also not consider ourselves, or our lower courts, to be at liberty to simply adopt any Restatement as the law of this state, even if we think it has expressed a good idea.

Judges are not elected to play the role of policy makers. If anyone in this state thinks we should change a rule or a policy expressed in a rule, then that person should raise the matter as a proposed change to our Texas Rules of Evidence. In that way, the matter could be considered by a rules committee, and the committee could then consider public input before deciding whether to amend our rule.

We have rules of evidence that are written down, with pesky little things called words—that mean things. Presumably, the people who adopted our Texas Rules of Evidence fully considered them, and the words in them, before adopting them. We should consider whether the words in our actual rules are enough….

On its own terms, the rule is quite clear. It does not contemplate the situation in which the statement is made to clergy when the communicant is out of state. When our courts, and when we, pretend that our rule of evidence demands a different set of rules for when a communication occurs in another state, we destroy our own credibility as an equal arbiter of the law. Our courts should simply follow the language of our own Rules. And we should lead the lower courts in that direction by granting review in this case to show them the way….

Under Texas Rule of Evidence Rule 505(a)(3), Appellant's mother's presence might not serve to preclude Appellant from asserting the clergy-communicant privilege. It is therefore conceivable that, if the Texas Rule had been applied, Appellant might have been able to prevent the bishop from testifying.

Judge Yeary also added:

The Restatement (Second) of Conflicts of Law § 139 (1) states: "(1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum." It is seems to me that there exist strong arguments that allowing the admission of the communication at issue in this case is against the strong public policy of Texas. By its own terms, Texas's clergy-communicant privilege can even apply when made in the presence of a third person; and Texas rule makers certainly added this section intentionally. Tex. R. Evid. 505(a)(3) ("A communication is 'confidential' if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.") We should look for the "strong public policy" of the state in the plain text of the rule.

I should note that the subject of conflicts of law is largely about deciding when a foreign law should be used even when a local statute would on its face appear to apply. The theory is that legislatures generally write statutes with an eye towards local matters, and can't be expected to consider all the complications that arise in the rare multi-state cases; better leave that to courts to figure out using judge-made choice-of-law rules, the theory goes. But Judge Yeary argues that courts ought to take a more textualist approach to such questions.

I'm inclined towards the choice-of-law rule applied in Gonzalez, under which courts should apply the law of the place where the communication happened. (Of course, that can still leave a question of what happens if the communication is by Zoom, and the clergy member is in one state and the congregant is in another.) But in any event, I thought this was an interesting question to pass along.