Taping of Religious Confession Ruled Illegal

The Christian Century, February 19, 1997 | Go to article overview

Taping of Religious Confession Ruled Illegal


A federal appeals court has ruled that jail officials in Eugene, Oregon, violated the religious rights of a local Roman Catholic priest by secretly taping the sacramental confession a murder suspect had given the clergyman. The ruling by a three-judge panel of the Ninth Circuit U.S. Court of Appeals overturned a U.S. District Court decision that the panel said might have encouraged prosecutors and police investigators to gather evidence by secretly taping otherwise confidential jailhouse communications between criminal suspects and clergy.

The Court of Appeals unanimously ruled that law enforcement officials had violated the religious rights of Father Timothy Mockaitis and Portland Archbishop Francis E. George by secretly taping the confession a murder suspect had given to Mockaitis in 1996. In his confession, suspect Conan Hale acknowledged participating in a burglary that police had connected with the killing of three Eugene-area teenagers. But Hale denied any role in the 1995 killings.

The case was unusual not only because of the extreme measures officials took to gain evidence in a criminal proceeding, but also because the suspects in that proceeding, on learning of the existence of the taped confession, had asked the courts to preserve the tape for use in their defense. Attorneys for the U.S. Catholic Conference, the social-policy agency of the nation's Catholic bishops, and a panoply of other religious groups--including the Church of Jesus Christ of Latter-day Saints (Mormon), the Presbyterian Church (U.S.A.), the American Jewish Congress, the Baptist Joint Committee on Public Affairs, and the Evangelical Lutheran Church in America--field a brief arguing that the ruling would have permitted wholesale law enforcement intrusion into the privileged communications between clergy and laity.

"They used the priest as a tool to gather evidence for the state without his permission, and that's what made it such an important case," said Portland attorney Thomas Dulcich, who represented the Archdiocese of Portland. Had the lower court ruling been allowed to stand, Dulcich added, "what's to say that the next step wasn't the bugging of a priest in his office or in his confessional?"

Police had arrested Hale and Jonathan Susbauer as suspects in the December 1995 murders. …

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