Nice try

One of the regular schticks on Law and Order is people in all kinds of professions--hair-dressers, brokers, bar tenders--claiming the same sort of confidential privilege that is usually only given to attorneys, clergy and mental health professionals. I have often wondered how real that is. Apparently it has some basis in fact.

Ed Brayton brings us news of one of the more interesting arguments for suppressing evidence that I've seen in a long time.

In one of the more unique religious freedom cases to come down the pike in quite some time, a unanimous 6th Circuit Court of Appeals panel rejected an appeal from a Michigan woman convicted of attempted murder, ruling that entries in her journal were not protected by the clergy-penitent evidentiary privilege even though they were addressed to God. In the case of Varner v Stovall, Janniss Varner was convicted of attempted murder against her abusive boyfriend.

The police seized copies of her journal, wherein she admitted to having hired someone to kill him, and used them as evidence to convict her. She appealed the conviction, arguing that because she addressed her journal entries to God, they should be protected under Michigan's clergy-penitent privilege.

The judge in the matter cut to the core of the issue.

The privilege requires the communication to be directed to a member of the clergy just as the other privileges require the communication to be directed to an attorney or doctor because it is the clergy who may be subpoenaed to testify against the individual. The same possibility does not exist with private writings to God, who may be petitioned but never subpoenaed.

The key point is that Varner never mailed her letters to God. As long as they stayed in possession, they were not privileged. If she had mailed them and they were in God's possession, they would have been privileged. I'm going to assume we can use this as a precedent for letters to Santa.