6th Circuit: Journals not protected under clergy-penitent privilege

Thursday, September 13, 2007

A federal appeals court has rejected the claims of a woman who argued her conviction for assault with intent to commit murder should be set aside because the state courts violated her First Amendment religious freedoms by allowing into evidence her private, prayer-filled journals.

A Michigan court convicted Janniss Varner of hiring a third party to try to kill her abusive boyfriend, Alvin Knight. The third party attempted to kill Knight in 1995, but he thwarted the attack and took away the gun. After someone killed Knight in 1998, the police searched his apartment and found Varner’s private journals. The journals disclosed her responsibility in hiring the gunman in the failed 1995 attack. The journals also contained numerous references and pleas to God, such as “Dear God” and “Lord I do thank you for helping me.”

After unsuccessful appeals in the state appellate courts, Varner filed a federal lawsuit challenging her state-court conviction. One of her primary arguments in her federal petition was that the state courts erred in allowing the journals into evidence. She contended her journal writings should be covered by the state’s clergy-penitent evidentiary privilege, which generally shields comments made to a clergy member from being used as evidence in court. After a federal district court rejected her claims, she appealed to the 6th U.S. Circuit Court of Appeals.

A three-judge panel of the 6th Circuit unanimously affirmed the district court’s denial of her petition in its Sept. 11, 2007, decision in Varner v. Stovall. The court wrote that “the clergy-penitent privilege was never designed to apply to private journal entries, and the confinement of the privilege to its historic purposes does not offend … the Religion Clauses of the First Amendment.”

The court reasoned that many other evidentiary privileges also require communications to be directed to another person, such as an attorney or doctor. “It is the clergy who may be subpoenaed to testify against the individual,” the court wrote. “The same possibility does not exist with private writings to God, who may be petitioned but never subpoenaed.”

Varner argued the existing state law favored religions that promote communicating with God through an intermediary over those that advance communicating directly with God.

The appeals court expressed skepticism, writing: “No matter what form of faith an individual practices, the privilege does not protect journal entries, whether addressed to God or not.” The court concluded that the decision not to extend the law to private writings was “neutral.”

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