The Hawaiian gazette., 1907-11-12
OPEN CONFESSION J
NOT PRIVILEGED


trict Court yesterday formally ruled
against the contention that the pro-
ceedings of a meeting of the Mormon
church at which a confession of sin
was made and absolution granted, is a
privileged communication. The ques-
ton arose on the admission in evidence
of testimony of what occurred at such
a meeting in the progress of the trial
of George Kekauoha on an Indictment
for adultery. :.
| The following is the written opinion
! and ruling fled by Judge Dole in the
matter:
TEXT OF DECISION.
In the District Court of the United
| States, in and for the District and
Territory of Hawaii.
] The United States of America, Plain
tiff, VS.. George Kekauoha, Defendant.
Objection to testimony.
| In the course of the examination of
witnesses for the prosecution a wit
ness was produced who was a member
of the Mormon church at Laie who had
been present at church meeting when
defendant was investigated, and it was
/ proposed to ask him as to some adj
mission or confession made by him on
that occasion. Preliminary to the ask
| ing of such question witness was ex-
amined as to his status as an officer
of such church, at such meeting. The
defendants counsel was allowed to
cross examine on this matter, and
asked the following question: %. And
under the beliefs of your church, what
was said at that meeting is regarded
as sacred is it not, and should not be
repeated?" to which counsel for the
prosecution objected on the ground
that it made no difference whether
what was said was sacred or confiden-
tial, as to the duty of the witness to
testify to it, on the ground that he
was not a clergyman.
The general rule is that a witness
must tell what he knows. The excep-
lions to this rule allowed by the Ha-
waiian statutes include confessions
made to clergymen in their profess
sional character. according to the
usages of the church to which they
belong. The solution, therefore, of this
matter is to be found in the answer to
the question whether the witness held
the position of a clergyman in the
Mormon church. His testimony was
that there were four elders. or leaders,
and eight or nine teachers, of which
he was one. So far as the evidence
goes it appears that the teachers have
no authority to absolve or to excom-
municate. Their status was, to some
extent, in the nature of policemen to
look after the interests of the COM
munity and report at the meetings of
elders and teachers. He stated that
an elder, or leader, receives his author
ity from the heads of the church in
Utah, but that the teachers receive
theirs from the elders or leaders here.
The evidence is scant as to the duties
and powers of teachers in a church
meeting, but 1t is clear that they have
no controlling vote, if any vote at all.
Apparently they are Assistants in such
investigation; they may be prosecutors
or they may be witnesses; it is pos
sible they may exercise some advisory
functions. Nothing has appeared to
should be recipients, together with the
elders, of the confessions of penitents.
1t is recognized that in a case of priv
ileged communication between attor-
ney and client a third party, who may
be necessarily present as an interpre-
ter or stenographer of the attorney,
may be privileged, and an interpreter,
in the case of a church meeting and
confession, would, under such rule be
privileged, but no such relation exists
in regard to this witness, so far as the
court is informed. The court, in
Owens, Sheriff, V. Frank, Wyoming
462, said, in referring to confidential
communications between masons,
However binding an obligation may
be, as between members of the same
society, secret or otherwise, not to d.
vulge ito others that which may be
confidentially communicated to them,
such an obligation must be understood
to be subject to the laws of the coun-
try, and doubtless the societies them
selves recognize that such limitation
attaches to the obligation; and there
fore it cannot be said that the. oblga-
ton is violated when the disclosure
is compelled in court of justice in
the course of the administration of the
laws" Although a confession of a
penitent to his clergyman is made priv
ileged by the statute, which privilege
may be regarded as desirable in the
public interests, yet the extension of
such privilege to those present at a
meeting for disciplinary purposes,
made up of a miscellaneous assembly
of higher and lower officials of a
church, may well be viewed with alarm
as tending to transform conservative
and reasonable practice to one con-
tanning elements of interference with
the administration of the laws in the
nature of unnecessary obstacles there
to-
No private or social or religious OBJ
legations can dispense with that uni
versal one which lies on every member
of society to divulge all information
in regard to crime against the public |
interests, except as provided by law, !
in the recognition of certain commune
cations which are privileged. because !
of the sentiment that to compel testi- |
mony under the circumstances would I
be of more prejudice than value to the !
public. These privileged communica- |
tions include those made between at |
torney and client, husband and wife, |
physician and patient. clergyman and |