Religion Law Quiz #48 (Can a prosecutor record a prisoner's confession to a priest?)

Can a prosecutor secretly record an accused person's confession to his or her spiritual leader and then use that taped confession to help convict the person of the heinous crime that has been committed? 

 

(Scroll down for the answer)

 

 

 

Answer: No.  The Ninth Circuit Court of Appeals decision in Mockaitis v. Harcleroad, 104 F.3d 1522 (9^th Cir. 1997) (overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997)) is instructive in this regard.  At issue in Mockaitis was whether a prosecutor’s taping of an accused killer’s confession to a Catholic priest violated the federal Religious Freedom Restoration Act.  The Ninth Circuit noted that such an action clearly was a substantial burden on the priest’s exercise of religion.  Id. at 1530.  Furthermore, the Ninth Circuit found that taping the confession was not the least restrictive means to accomplishing the government’s compelling governmental interest.  Id.  Mockaitis demonstrates that governmental intrusion into the priest/penitent communications—an area of communication that has long been protected throughout the history of the United States—is not the least restrictive means of accomplishing a compelling governmental interest.  See 104 F.3d at 1532 (“the history of the nation has shown respect for the character of sacramental confession as inviolable by government agents interested in securing evidence of crime from the lips of [a] criminal.”). 

 

 Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.