*219.* _Judicial Notice._—A church takes judicial notice without proof of
its own rules, laws, and doctrines. Every other fact should be proved
according to the rules of evidence of the church, and in the absence of a
church rule the following rules of the courts of this country should
prevail:
1. Nothing should be admitted in evidence unless it directly proves or
disproves an evidentiary fact forming a link of a chain of facts that will
prove a fact in issue.
2. It is sufficient to prove the substance of the issue, unless the exact
word or thing forms the issue.
3. The burden of proof is on the one who asserts the fact, whether it is
stated affirmatively or negatively, and its proof is necessary to his
making a case.
4. The best evidence that the case in its nature affords must be produced.
5. Mere hearsay evidence shall not be allowed, excepting:
(a) Matters of public or general interest.
(b) Declaration against interest.
(c) Dying declarations.
(d) The testimony of witnesses since dead or absent.
(e) Admissions.
(f) Confessions.
*220.* _Competent Witness._—Everybody who has the use of reason and
understands the import of an oath is a competent witness.
*221.* _Confessions, Secret Societies._—At common law, confessions were
admissible; but there is no case in the United States since 1813 where the
court has sent a priest to jail for contempt for refusing to disclose a
confession, and no case in which a priest disclosed a confession.
Immediately after a priest was committed for contempt for refusing to
divulge the secrets of the confessional, in 1813, New York enacted the
following law: “No minister of the gospel, or priest of any denomination
whatsoever, shall be allowed to disclose any confession made to him in his
professional character, in the course of discipline enjoined by the rules
or practice of such denomination.” A similar law has been adopted in the
following States and Territories: Alabama, Arizona, California, Colorado,
Idaho, Iowa, Kansas, Kentucky, Michigan, Missouri, Nebraska, Nevada, North
Dakota, Ohio, New York, Oklahoma, South Dakota, Utah, Washington,
Wisconsin, Wyoming, and Hawaii. The secrets of a secret society are not
privileged, and a member as a witness must answer all relevant questions
in court.(396)
*222.* _Privilege, Answer._—When a question concerning a matter privileged
is put, the priest should say: “I claim my privilege as a clergyman and
ask the court not to require me to answer”; “Whatever he said concerning
the matter, was said to me in the confessional as a priest”; “I talked
with him about the matter only in my professional capacity as a priest and
confessor”; “I did not speak to him about the matter except in my
confidential capacity as priest;” or a similar statement that sets up the
clergyman’s privilege without giving facts. A clergyman should not say:
“He confessed it to me,” or “He told it to me in confession,” or give any
other answer that implies what was said in confession, as jurors are
always watching for a hint of what was said. Neither should the priest
say, “I refuse to answer,” without stating that he refuses because of his
privilege as a clergyman. The trial judge or the attorneys trying the case
may put proper questions to determine whether the information was given
the witness in the confessional or in his capacity as confessor.(397)
*223.* _Admissions, False Statements._—Admissions or statements made to a
clergyman not in his capacity of confidential adviser or in the course of
discipline, are not privileged.(398) Neither are false statements made to
a committee investigating charges; but all statements made to such a
committee or an officer of the church, unless false and made with malice,
are privileged.(399)
*224.* _Anonymous Letter, Clergyman._—Where a priest received an anonymous
letter alleged to have been written by a defendant, which he read to her,
he was not disqualified from testifying that she was excited and that she
stated she had no idea how the fire started, and that the letter was
unknown to her, etc.(400) The mere fact that a communication is made to a
clergyman does not make it privileged. It is privileged only when made in
confidence of the relation and under such circumstances as to imply that
it should forever remain a secret in the breast of the confidential
adviser.(401) When a matter is privileged, it is not left to the witness
whether or not he shall testify concerning it; but he can not testify
without the consent of the other party.(402)
*225.* _Voire Dire._—Where a priest made a preliminary examination of a
woman to ascertain her mental capacity to make a confession, her answers
in such preliminary examination were admissible in a contest on a will;
but her confession was not admissible.(403)
*226.* _England, Confession._—The rule is now accorded priests in England,
but was not formerly. Where a priest turned a watch over to its owner, the
court ordered him, under pain of contempt, to tell where he got the
watch.(404) But in another case it was held that a priest need not divulge
the confession of a defendant who was held for crime.(405)
*227.* _United States, Rules._—In the United States courts, the rule
prevails that such confidential communications to a priest shall not be
divulged.(406)
*228.* _Presumptions, Usage._—The usage of a church or the laws of its
organization as a religious society, if they are to be considered in
deciding legal controversies, must be proved as facts.(407) In the absence
of proof, it will be presumed that subordinate bodies, as congregations,
can not dissolve their connection with the principal organization without
permission.(408)
*229.* _Funeral Expenses._—Witnesses’ opinions as to the reasonable amount
for burial or as to the cost of a funeral being reasonable, are not
binding on a court or jury. The station of a man, the property that he
leaves, the life that he has followed, all should be considered by the
court. The whims and notions of societies and others are of minor
consideration. Those who make funeral expenses that are not allowed by the
court must pay them.(409)