Testimony of a Spiritual Advisor
May 13, 2020 § 3 Comments
Robert and Daphne Cobb were married on July 25, 2011. At the time of the marriage, both knew that they had been diagnosed with cancer. Robert’s was the more severe case. He retired from his job and, four days before he succumbed to his cancer on February 12, 2012, signed forms that made Daphne beneficiary of his retirement funds totalling nearly half a million dollars. His sons, Bruce and Zach, had originally been the beneficiaries. After Robert died, the sons sued to set aside the transaction designating Daphne as beneficiary, charging undue influence or lack of capacity. The chancellor ruled against them, and they appealed.
One of the claims they raised on appeal was that the chancellor erred in admitting the testimony of Chatham, Robert’s spiritual advisor.
In Cobb v. Cobb, handed down April 28, 2020, the COA affirmed. Judge McDonald wrote for the majority:
¶29. Bruce and Zach claim that the chancery court erred in allowing Chatham to testify. We disagree. Private and confidential communications with clergy may be excluded as evidence by a person with standing to raise such a privilege. M.R.E. 505. Here, Bruce and Zach did not have standing to raise the privilege. M.R.E. 505(c). Moreover, Chatham did not testify to his “communications with Robert,” but rather about Chatham’s observations of Robert during Chatham’s interaction with Robert. See M.R.E. 505(a)(2), (b). Moreover, Mississippi Rule of Evidence 505 does not apply unless a communication is made “to a clergyman in his professional character as spiritual advisor.” Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1245 (¶116) (Miss. 2005) (quoting M.R.E. 505(b)).
¶30. In this case, Chatham did not testify to “communications” with Robert; Chatham merely described his observations of Robert’s speech and abilities during their visits. Moreover, this contest to the beneficiary change was brought by Bruce and Zach individually—not on behalf of Robert’s estate or as Robert’s personal representative. Therefore, neither son has standing to object to any of Chatham’s testimony, even communications with Robert. Accordingly, Chatham’s testimony was admissible.
Some thoughts:
- The sons lacked standing because they brought the action individually and not on behalf of the estate or as Robert’s administrator or executor. If there were privilege to assert here, it was Robert’s privilege, not theirs. I see lawyers do this every now and then in issues of privilege and in objecting to discovery; they assert claims that are not theirs on behalf of witnesses and even the other party.
- The testimony was not about the substance of communications, but rather about what Chatham observed with his senses. That’s the key distinction here, and it’s a nuance that some lawyers overlook in the heat of trial. They keep trying to find inventive ways to get hearsay into the record and never ask the witness what she observed about the speaker’s demeanor, or what the speaker was doing while she spoke (e.g., wringing her hands, holding her face in her hands and rocking back and forth, crying, tone of voice).
The Better Chancery Practice Blog 
I looked up Rule 505, and “(c) Who may Claim the Privilege” says: “(2) Unless the privilege is waived, the clergy member MUST claim it on the person’s behalf.” (emphasis mine) In the instant case, the testimony was apparently not as to the matter communicated, but rather as to the deceased’s general condition. But the COA opinion bolsters itself by commenting that the sons didn’t have a right to assert a privilege anyhow. Judge, how does this square with the mandatory language of the rule cited above, since the deceased or personal rep evidently didn’t waive it? Thanks.
Stay tuned for a post on the dissent coming Monday. It touches on this very point.
Zeke,
My reply is in error. There was no dissent in Cobb; I had another case in mind.
Here, apparently the clergyman did not feel that he was divulging priviliged communications, so he did not assert the objection; either that or he did not know to do it. In any event, if error it was harmless because there was no testimony of any communication. The sons don’t fit into any of the 505(c) categories; thus, no standing to assert privilege.