Dealing with any Critical Incident is inherently traumatic. The chemical reactions that an individual’s body undergoes coupled with the emotional stress immediately following an incident are both physically tolling and emotionally draining. Conversations with Peer Support and/or a Departmental Chaplain are invaluable tools to help deal with trauma. Especially, in the immediate aftermath of a Critical Incident. However, it is important to note that not all communications with either a Chaplain or Peer Support are as privileged as communications with your attorney.
Communications with Peer Support
In short, a peace officers’ communications with peer support have a very limited privilege. These communications may be disclosed in the context of a criminal proceeding. Peer Support Privileges are outlined in Government Code Section 8669.4. The code section is as follows:
(a) A law enforcement personnel, whether or not a party to an action, has a right to refuse to disclose, and to prevent another from disclosing, a confidential communication between the law enforcement personnel and a peer support team member made while the peer support team member was providing peer support services, or a confidential communication made to a crisis hotline or crisis referral service.
(b) Notwithstanding subdivision (a), a confidential communication may be disclosed under the following circumstances:
(1) To refer a law enforcement personnel to receive crisis referral services by a peer support team member.
(2) During a consultation between two peer support team members.
(3) If the peer support team member reasonably believes that disclosure is necessary to prevent death, substantial bodily harm, or commission of a crime.
(4) If the law enforcement personnel expressly agrees in writing that the confidential communication may be disclosed.
(5) In a criminal proceeding.
(6) If otherwise required by law.
While 8669.4(a) grants law enforcement personnel the right to refuse to disclose confidential communications between themselves and a peer support team member made while obtaining peer support services, subsection (b)(5) states that a communication MAY be disclosed in a criminal proceeding, thus the right to refuse disclosure is not absolute. Government Code Section 8669.7 distinguishes criminal proceedings from civil, administrative, or arbitration proceedings by allowing a law enforcement official the right to prevent disclosure in those non-criminal proceedings. A peer support member may be compelled to disclose information in a criminal proceeding thus limiting the privilege. Since many critical incidents contain the possibility of a criminal exposure, disclosure of any facts to a peer support member may not be privileged and can be used in a criminal trial.
Lastly, in order for a communication to be confidential, 8669.6 requires that peer support members complete a training course or courses from the list provided within the code section. As long as the training course(s) is completed the communication made during peer support services is confidential (except of course for use in criminal proceedings).
Communications with a Chaplain
In contrast to Peer Support, communications with a Chaplain are subject to a broader privilege. However, this privilege only exist if certain criteria are met. Importantly, the chaplain must be a member of the “clergy.” California Evidence Code Section 1030 defines a “member of the clergy” [as] a priest, minister, religious practitioner, or similar functionary of the church or religious denomination, or religious organization.” If a chaplain is associated with the church, a religious denomination or religious organization he/she can be considered a member of the clergy. A leisurely affiliation or an affiliation by paper is not enough to denote a chaplain as clergy. In other words, an “ordained minister” of the local internet generally will not suffice or qualify as “clergy.”
Assuming the chaplain at issue is a “member of the clergy” in terms of Evidence Code Section 1030, the “penitential communication” privilege provided in Evidence Code Section 1032 would apply. Evidence Code Section 1032 defines the type of communication covered as a “penitential communication.” A penitential communication is defined as a one-on-one communication, outside of the presence of a third party, with a member of the clergy acting in their capacity with a duty to keep communications secret (CA Evid. Code §1032). A “penitent” officer has a privilege to refuse to disclose and prevent another from disclosing the communication if he or she claims the privilege and meets the requirements set forth above (CA Evid. Code §1031 &1033). There is no requirement that the penitent and clergy be of the same faith. Evidence Code Section 1034 extends this privilege to the clergy member if he or she claims it. A law enforcement official and a chaplain will have a penitential communication where the chaplain is acting within their capacity and exercising their duties as a chaplain by engaging in the confidential communication. There cannot be others present during this communication and either party may exert the privilege.
In sum, communications with peer support team members are only privileged insofar as they are not required for criminal proceedings. The clergy-penitent privilege has no limitation and the holder of the privilege can assert the privilege in any proceeding so long as the criteria are met and the privilege has not been waived.
A determination of privilege can be cumbersome when dealing with a critical incident. As your representative, Mastagni Holstedt can assist in making determinations as to whether a privilege exists with the members of your support staff and if there are any potential risks for liability.