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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

     Argued October 12, 1993 -- Decided May 12, 1994

    GARIBALDI, J., writing for a majority of the Court.

    The issues on appeal are: 1) whether the marital-communications privilege prevents the admission of of inculpatory evidence obtained by a third person; and 2) who holds the priest-penitent privilege.

    In 1975, Craig Szemple shot a sixteen-year-old boy to death. Szemple was charged in Morris County with first-degree murder, unlawful possession of a handgun, and murder while armed with that handgun. After the State had rested its case in the murder trial, it sought permission to reopen to present two admissions of guilt that Szemple had allegedly made. The first admission was contained in a letter written to Szemple's wife that her father had inadvertently discovered and kept without his daughter's permission. The second admission was a confession of guilt Szemple had made while in jail to a Minister of Visitation, Paul Bischoff. After an Evid. Rule 8 hearing, the trial court determined that neither the marital-communication privilege nor the priest-penitent privilege protected the admissions. The court granted the State's motion to reopen its case to present the two admissions. The court denied Szemple's motion for a mistrial.

    On appeal, the Appellate Division reversed the trial court's denial of Szemple's motion for mistrial and granted leave to appeal to review the trial court's ruling that the evidentiary privileges did not apply. A majority of the Appellate Division upheld the trial court's evidentiary rulings. One judge dissented. The Supreme Court granted leave to appeal based on the dissent below.

HELD:    The marital-communications privilege does not prevent the admission of an inculpatory letter sent by Craig Szemple to his wife that was then taken by a third person without the wife's permission. Furthermore, in view of the legislative history of the priest-penitent privilege in New Jersey and its interpretation by the Jacobs Committee and Bigelow Commission, the clergyperson is the sole holder of the priest-penitent privilege; the decision whether to reveal a confidential communication rests with the clergyperson.

1.    At the time of Szemple's trial, Evid. Rule 28, the marital-communications privilege, provided that no person can disclose any communication made in confidence between that person and his or her spouse unless both consent to the disclosure. (Evid. Rule 28 has since been renumbered Evid. Rule 509.) The marital-communication privilege is not attached to the communication itself, but is personal to the spouses. Involvement of a third party destroys the privilege. There is no reason to distinguish between an oral or written communication. The privilege does not apply to a written communication between spouses that comes into the possession of a third party without the consent of the recipient spouse. (pp. 7-14)

2.    The dissenting member of the Appellate Division panel found that for the privilege to be destroyed, the third party would have to discover the communication unwittingly or unintentionally. However, the "inadvertency" requirement applies to the spouse who receives the communication, not to the third-party discoverer. Inadvertence ensures that the spouse could not unilaterally defeat the privilege by intentionally allowing a writing to fall into the hands of a third party. Here, the confidential nature of Szemple's letter was destroyed when the letter came into his father-in-law's possession. There is no evidence that his father-in-law obtained the letter through any involvement with Szemple's wife. Under the circumstances, the trial court properly concluded that the letter was not privileged and, therefore, was properly admitted. (pp. 14-17)

3.    Evid. Rule 29, the priest-penitent privilege, enables a clergyperson or one authorized to perform similar functions to avoid being compelled to disclose a confession or other confidential communication made to him or her as part of his or her professional duties. (Evid. Rule 29 has since been renumbered Evid. Rule 511.) However, Evid. Rule 37 permits the holder of an evidentiary privilege to waive that privilege by disclosing the confidential communication or consenting to its disclosure. In this case, Mr. Bischoff consented to the disclosure of Szemple's confession. The Court looks to the plain meaning of the statute and/or the legislative intent to determine whether Mr. Bischoff alone may waive the privilege or whether both the clergyperson and the penitent must waive the privilege before the clergyperson may testify regarding a confidential communication. (pp. 17-19)

4.    Because the plain meaning of the rule is not obvious or self-evident, the statute must be construed in a manner that effectuates the Legislature's intent. Based on its review of the origin of the priest-penitent privilege and the history of the privilege in New Jersey, the Court concludes that Evid. Rule 29, the priest-penitent rule, confers a testimonial privilege only on clergypersons. They alone may elect to waive that privilege in their sole discretion and within the dictates of their religious beliefs. The penitent need not consent to the disclosure of a confession, confidential communication, or confidential relation in order for the clergyperson to waive the privilege. The plain waiver language of the statute, the interpretation of the statute by the Jacobs Committee and Bigelow Commission, both commissioned to study evidentiary rules, including Evid. Rule 29, and the origin of the privilege are persuasive evidence that the clergyperson is the only person who can waive the privilege. Moreover, when the Legislature amended the privilege in 1981, it did not overrule the interpretation in caselaw that the cleric alone holds the privilege. (pp. 20-32)

5.    Szemple contends that the determination that only the clergyperson holds the privilege renders the statutory phrase "shall not be allowed" meaningless. The "shall not be allowed" language is most analogous to the "may not testify" language used in states where no one may waive the privilege and the rule is more a rule of competence to testify rather than of privilege. The privilege in New Jersey is expressly subject to waiver; to ignore an express waiver in favor of the ambiguous phrase "shall not be allowed" would defeat the Legislature's intent. The originating principle of the privilege was not concern for the penitent. Rather, the concern was for the clergyperson's privilege from being compelled to disclose confidences in violation of his or her religious vows. (pp. 32-35)

    Judgment of the Appellate Division is AFFIRMED.

     JUSTICE CLIFFORD, concurring, is of the view that Justice Jacobs and Judge Bigelow fully understood the ramifications of the Jacobs Committee Report's comment that the penitent has no privilege. The dissent's argument is nothing more than a red herring. Imposing on the priest alone the privilege and the right of waiver does not dilute the "right to confide" or cause suffering or destroy sanctity or encourage lurid storytelling. Priests keep their confidences of the confessional not because a secular law gives them the privilege to do so but because the obligations to their church and their religious duty and function require it of them. Justice Clifford notes that if the Court has misperceived the legislative intent, the Legislature can act accordingly.

     JUSTICE O'HERN, dissenting, in which the CHIEF JUSTICE WILENTZ and JUSTICE STEIN join, is of the view that the Legislature did not intend nor did the Rules of Evidence contemplate that a spiritual advisor should be free to disclose a confidential spiritual conversation. Justice O'Hern reaches that conclusion because 1) an overwhelming majority of other jurisdictions construe the privilege as a bar to the revelation of a confession by the cleric, 2) that New Jersey law has never recognized a cleric's right to waive the seal of confession, and 3) State committees on evidence would never have recommended so fundamental a change in the doctrine without explicitly discussing the issue. Because Justice O'Hern believes that the evidentiary privilege belongs to both the cleric and the penitent, a conviction based on disclosure of the confidential spiritual communication cannot be sustained.

     JUSTICES CLIFFORD, HANDLER, and POLLOCK join in JUSTICE GARIBALDI's opinion. JUSTICE CLIFFORD filed a separate concurring opinion. JUSTICE O'HERN filed a separate dissenting opinion in which CHIEF JUSTICE WILENTZ and JUSTICE STEIN join.
                            SUPREME COURT OF NEW JERSEY
                             A- 25 September Term l993

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

     v.

CRAIG SZEMPLE,

    Defendant-Appellant.

__________________________

        Argued October l2, l993 -- Decided May 12, 1994

        On appeal from the Superior Court, Appellate Division, whose opinion is reported at 263 N.J. Super. 98 (l993).

        George T. Daggett argued the cause for appellant (Daggett & Kraemer, attorneys).

        Joseph Connor, Jr., Assistant Prosecutor, argued the cause for respondent (W. Michael Murphy, Jr., Morris County Prosecutor, attorneys).

        J. Michael Blake, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender (Zulima V. Farber, Public Defender, attorney).

        Catherine A. Foddai, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Fred DeVesa, Acting Attorney General, attorney).

        Ronald K. Chen and Sally Frank submitted briefs on behalf of amicus curiae The American Civil Liberties Union of New Jersey.

        Alan L. Zegas submitted a letter brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey.

    The opinion of the Court was delivered by

GARIBALDI, J.

    This case involves the reach of two separate evidentiary privileges: the marital-communications privilege and the priest-penitent privilege. First, we address whether the marital communications privilege, Evidence Rule 28,See footnote 1 N.J.S.A. 2A:84A-22, prevents the admission of an inculpatory letter that defendant sent to his wife and that the wife's father then took without permission. Second, we consider who holds the priest-penitent privilege, Evidence Rule 29, N.J.S.A. 2A:84A-23. If the clergyperson or the penitent, alone, holds the privilege, then that person can waive it unilaterally. If, however, both the clergyperson and the penitent hold the privilege, both must consent to its waiver.

County indictment alleged that defendant shot a sixteen-year-old boy, Nicholas Miroff, to death in l975. After the State had rested its case in the jury trial on that charge, it sought to reopen its case to present two admissions of guilt that defendant had allegedly made. The first admission was contained in a letter written to his wife that her father had discovered. The second admission was a confession defendant had made while in jail to a Minister of Visitation.
    After an Evidence Rule 8 hearing, the trial court determined that neither the marital-communications privilege nor the priest-penitent privilege protected the admissions. The trial court granted the State's motion to reopen its case to present the two admissions. Rejecting defendant's argument that the new evidence caused unfair surprise, the trial court denied defendant's motion for a mistrial.
    On interlocutory appeal, the Appellate Division reversed the trial court's denial of defendant's motion for mistrial and granted leave to appeal to review the trial court's ruling that the evidentiary privileges did not apply. The Appellate Division, with one judge dissenting, upheld the trial court's evidentiary rulings. 263 N.J. Super. 98 (l993). We granted leave to appeal pursuant to Rule 2:2-1(a)(2) and now affirm.

second I pulled that trigger, I became larger than death to all of my associates.

Mr. Boyle returned to New Jersey several months later, and gave a copy of the letter to his former wife, Theresa Boyle's mother. Mr. Boyle's ex-wife communicated with an attorney to inquire whether the letter would be helpful to the prosecutor, but was informed that the prosecutor did not need the letter because the State already had enough evidence against defendant. Based on that advice, neither Mr. Boyle nor his ex-wife disclosed the existence of the letter to the authorities.
    Almost a year later, Mr. Boyle asked his daughter about the status of defendant's cases. When his daughter told him the charges were being dropped, Mr. Boyle drove to New Jersey from North Carolina and gave the letter to the Morris County prosecutor's office. Mr. Boyle had never told his daughter that he had the letter. When Theresa Boyle discovered he had the letter and had given it to the prosecutor, she became very angry. He testified that his "daughter won't have nothing to do with [Michael Boyle] now."
    The prosecutor presented evidence that tied the statement in the letter to the murder. The trial court ruled that the letter was admissible. Although the letter would have been privileged under Evidence Rule 28 if Theresa had retained possession, the court held that the privilege no longer applied once Mr. Boyle, without Theresa's aid, consent, or connivance, obtained possession of the letter.

accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure." Briley, supra, 53 N.J. at 506. Thus, privileges should always "be construed and applied in sensible accommodation to the aim of a just result." Ibid.

The Legislature amended the marital-communications privilege by Act of November l7, l992, L. l992, c. l42. Evid. R. 28, N.J.S.A. 2A:84A-22. The amendment substantially relaxes the privilege to permit disclosure of marital communication "in a criminal action or proceeding in which either spouse consents to the disclosure." (emphasis added). The amendment applies "to all criminal actions regardless of the date on which the offense was committed or the action initiated." Committee Statement to Senate, No. l055, L. l992, c. l42. Because defendant's wife did not consent to the letter's disclosure, the recent amendment is not directly

applicable. Nonetheless that amendment clearly demonstrates the Legislature's intent to limit significantly the preclusive effect of the marital-communications privilege.
    The marital-communications privilege has long been recognized as a protector of marital confidences. It stems from the strong public policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the sanctity and tranquility of marriage. See Wolfle v. United States, 29l U.S. 7, l4, 54 S. Ct. 279, 280, 78 L. Ed. 6l7, 620 (l934); Blau v. United States, 340 U.S. 332, 333, 7l S. Ct. 30l, 302, 95 L. Ed. 306, 308 (l95l); Rozycki v. Peley, l 99 N.J. Super. 57l, 579 (Law Div. l984); 8 Wigmore on Evidence § 2332, at 642 (McNaughton rev. l96l); cf. State v. Young, 97 N.J.L. 50l, 505 (l922) (discussing requirement that communication loses privileged nature if overheard by third party).
    Like other evidentiary privileges, however, "since the [marital communications] privilege has as its only effect the suppression of relevant evidence, its scope should be confined as narrowly as is consistent with the reasonable protection of marital communications." l McCormick on Evidence § 82, at 303 (J.S. Strong, 4th ed. l992). As a result, the marital communications privilege does not apply to a written communication between spouses that comes into the possession of a third party without the consent of the recipient spouse. See Wigmore on Evidence, supra, § 2339, at 668 (stating that general

rule is that if written communications "were obtained surreptiously or otherwise without the addressee's consent, the privilege should cease").    
    One well-known commentator on the law of evidence expresses the rule as follows:
        The weight of decision seems to support the view that the privilege does not protect against the testimony of third persons who have overheard (either accidentally or by eavesdropping) an oral communication between husband and wife, or who have secured possession or learned the contents of a letter from one spouse to another by interception, or through loss or misdelivery by the custodian. There is one important qualification which many if not most of the cases announce, namely that the privilege will not be lost if the eavesdropping, or the delivery or disclosure of the letter be due to the betrayal or connivance of the spouse to whom the message is directed.

        [l McCormick on Evidence, supra, § 82, at 302-03 (footnotes omitted).]

See also 8l Am. Jur.2d Witnesses § 330 (l992) (stating that letters between husband and wife disclosing anything of confidential nature are privileged "at least as long as they remain in the hands of either party to the marriage"); 97 C.J.S. Witnesses § 270(b)(2) (l957) (stating that under most authorities, "confidential written communication between husband and wife * * * loses its privileged character on coming into the hands of third person"). The privilege is personal to the spouses, and does not apply to third parties. Young, supra, 97 N.J.L. at 505.

    The majority of jurisdictions hold that the marital communications privilege does not apply to a written communication obtained by a third person without the other spouse's aid and consent. This view comports with the goal of narrowly construing privileges that preclude relevant evidence and with New Jersey precedent.
    No New Jersey court has held specifically that the marital communications privilege is inapplicable to a written communication obtained by a third person. Nonetheless, New Jersey law has long held that the marital-communications privilege does not prohibit disclosure by third parties who overhear spousal conversations. In State v. Laudisi, 86 N.J.L. 230 (l9l4), the Court of Errors and Appeals refused to apply the privilege to an accusation by one spouse against another in the presence of a neighbor. There, defendant objected to the admission of testimony by the neighbor concerning his wife's accusation and his reply on the grounds that it fell within the marital-communications privilege. The Court disagreed, holding that the presence of the third person vitiated the confidential nature of the communication. Id. at 23l.
    Similarly, in Young, supra, 97 N.J.L. 50l, the Court of Errors and Appeals refused to apply the privilege to a communication that the defendant had transmitted to a third person with the instruction that it be communicated to the defendant's wife. The court reasoned that the communication to

the third party destroyed the confidentiality of the communication:
        The privilege is personal to husband and wife. A third person who happened to overhear a personal conversation between husband and wife may be examined as to such conversation. A letter, also written confidentially by a husband to a wife, is admissible against the husband when brought to court by a third party.

        [Id. at 505 (internal quotations and citations omitted) (emphasis added).]

    In State v. Brown, ll 3 N.J. Super. 348 (l97l), the Appellate Division refused to extend the privilege to cover a conversation between a father and his son which the mother overheard. In addition to failing to qualify for the privilege because it was not an inter-spousal communication, the conversation was deemed to be not confidential due to the presence of the third party. Id. at 353.
    Finally, in State v. Sidoti, l 34 N.J. Super. 426 (l975), the Appellate Division held the marital-communications privilege inapplicable to a communication between a husband and a wife because a third person had overheard it.
    Those cases establish that the involvement of a third party vitiates the requirement of confidentiality. The privilege does not attach to the communication itself, but is personal to the spouses. See Young, supra, 97 N.J.L. at 505. We see no important distinction in that regard between an oral and a written communication. The confidential nature of a letter is

destroyed just as readily when a third party obtains it as when someone overhears an oral communication.
    Cases from other jurisdictions support that position. In Zimmerman v. State, 750 S.W 2d l94 (Tex. Crim. App. l988), a capital-murder case, the defendant, while in custody, sent to his wife, Sherry Zimmerman, a letter that contained a confession to a murder. 750 S.W 2d at l95. Mrs. Zimmerman apparently kept that and other letters sent by the defendant in her dresser drawer. The defendant's mother-in-law, Viola Cobb, while admittedly without permission looking for evidence of defendant's guilt, took four letters out of her daughter's dresser drawer, read them, and then mailed them to her other daughter, Sandra Abner, who resided in Houston, Texas. Id. at l97. Ms. Cobb never discussed the contents of the purloined letters with Mrs. Zimmerman and fully intended that the letters would come into the possession of the proper authorities when she mailed them to Ms. Abner. Ibid.
    In holding that the letter containing the confession was not a privileged marital communication, Zimmerman recognized the analogy between oral marital communications overheard by a third party and written communications obtained by third persons. Id. at l99-200. The Zimmerman court adopted the rule that a Kansas Supreme Court opinion had annunciated that "'where a written confidential communication between a husband and wife falls into the hands of a third party inadvertently and without the consent

or connivance of the addressee-spouse, the third party should be permitted to testify as to the communication.'" Id. at 200 (quoting State v. Myers, 640 P.2d l245, l248 (l982). The court in Myers also observed that "[s]uch a rule, as applied to written communications, is entirely consistent with the rule, almost universally accepted, that oral statements of one spouse to another are admissible when overheard by a third person even without the knowledge or consent of the spouses." 640 P.2d at l249.
    The Myers Court held that confidential letters that the defendant had written to his wife, found under the mattress of a bed three months after the defendant's wife had vacated the premises, were not privileged under that rule. Id. at l248. The court concluded that "the public interest would be best served by the requirement that all facts relevant to a litigated issue should be available to the court to the end that truth may be ascertained." Ibid.; see also Commonwealth v. Skibicki, 586 A.2d 446, 449-50 (Pa. Super. Ct.) (holding that letter from defendant to wife found by used car salesman in glove compartment of car recently traded by defendant's mother-in-law was not privileged), appeal denied, 598 A.2d 993 (Pa. l991).
    Defendant asserts that the privilege is lost only when the written communication was discovered "inadvertently" (meaning heedlessly or unintentionally). Judge Stein accepted that view in his dissent in the Appellate Division. In Judge Stein's

opinion, the "inadvertency" requirement applies to the third party discoverer of the confidential communication. See 263 N.J. Super. at l22. Under his approach, the privilege would apply if the third party intended to discover the confidential communication, regardless of whether one of the spouses intended that it be discovered. For the privilege to be destroyed the third party would have to discover the communication unwittingly or unintentionally.
    That analysis applies the "inadvertency" requirement to the wrong person. "Inadvertent" refers to the spouse who receives the written communication, not to the third-party discoverer. The "inadvertency" requirement was meant to ensure that a spouse could not unilaterally defeat the privilege by intentionally or through some connivance or collusion with a third party allow a writing to fall into the hands of a third party. It does not apply to the conduct of the third-party discoverer.
    We also note that the recent amendment to Evidence Rule 28, that permits a spouse unilaterally to defeat the privilege, diminishes the need for the "inadvertent discovery" rule. Now, a spouse who wants confidential marriage communications to be revealed need not orchestrate a situation in which those communications are revealed to a third party. The spouse can simply disclose the information directly to the court.
    We agree with the lower courts that the confidential nature of defendant's letter was destroyed when the letter came into Mr.

Boyle's possession. The record contains no evidence that even suggests that Mr. Boyle obtained the letter through any involvement of defendant's wife. To the contrary, defendant's wife did not discover that her father had the letter until more than a year after he had removed it from her house.
    Both defendant and Theresa Boyle failed to take adequate precautions to prevent the letter from being found. Theresa Boyle inadvertently left the letter in a box that she asked her father to move. In the course of moving the boxes Mr. Boyle discovered the letter. No evidence exists that defendant ever asked his wife to destroy the letter or to keep it in a safe place. When defendant wrote the letter, he knew or should have known that a written communication may have a long life. Indeed, the danger of a written communication falling into the hands of a third party would appear to be more foreseeable than the danger of an oral conversation being overheard. To obtain the benefit of the privilege, spouses must take the precautions necessary to ensure that inter-spousal communications be kept confidential. When they fail to do so, the privilege is lost.
    Moreover, the theory of the dissent below rests on the unfounded assertion that Mr. Boyle "surreptitiously appropriated" the letter. 263 N.J. Super. at l22 (Stein, J.A.D., dissenting). That finding is not supported by the evidence. Mr. Boyle discovered the letter in the course of assisting his daughter's move. He did not seek out the letter or intend to discover

confidential communications. He happened on the letter. His discovery was unplanned. Although the act of concealing and removing the letter, once found, was clearly intentional, its discovery was not.
    We hold, therefore, that under the circumstances in this case, the trial court properly concluded that the letter was not privileged and hence was properly admitted.

Evidence Rule 37, now Evidence Rule 530, N.J.S.A. 2A:84A-29, permits the holder of an evidentiary privilege to waive that privilege by disclosing the confidential communication or consenting to its disclosure. There is no doubt that Mr. Bischoff consented to the disclosure of the defendant's

confession.See footnote 2 The critical issue is whether the clergyperson alone may waive the privilege pursuant to Evidence Rule 37, or whether both the clergyperson and the penitent must waive the privilege before the clergyperson may testify regarding the confidential communication. In other words, we must determine who holds the privilege for the purpose of waiving the privilege.
    Construction of any statute necessarily begins with a consideration of its plain language. Town of Morristown v. Woman's Club, l 24 N.J. 605, 6l0 (l99l); Kimmelman v. Henkels & McCoy, Inc., l08 N.J. l23, l28 (l987). Evidence Rule 29 does not specify whether the clergyperson, the penitent, or both hold the privilege. The priest-penitent privilege, however, is directed toward the clergyperson who shall not be allowed or compelled to disclose a confidential communication made to him or her in his or her professional character. Defendant argues that the inclusion of the phrase "shall not be allowed . . . to disclose" indicates that the penitent, as well as the clergyperson, must consent to the disclosure to have a valid waiver of the

privilege. According to defendant's argument, the phrase refers to the penitent "allowing" the clergyperson to reveal the confidential communication.
    The Appellate Division determined that the word "allow" may instead "refer to the court and/or State 'allowing' a clergyperson to breach his or her vow of confidentiality by considering such a person a competent witness to disclose a confidential communication." 263 N.J. Super. at l07. Those differing interpretations demonstrate that the phrase's meaning is not obvious or self-evident on its face.
    When a statute is ambiguous, the Court must construe the statute in a way that will best effectuate the Legislature's intent. Cedar Cove, Inc. v. Stanzione, l 22 N.J. 202, 2l3 (l99l); Accountemps Div. v. Birch Free Group, ll 5 N.J. 6l4, 622 (l989). Although we are mindful that a construction that renders any part of a statute superfluous or meaningless is to be avoided, State v. Reynolds, l 24 N.J. 559, 564 (l99l); Medical Soc'y v. Department of Law & Public Safety, l20 N.J. l8, 26-27 (l990), we are equally mindful that the general intention of the statute controls interpretation of its parts. Waterfront Comm'n v. Mercedes-Benz of N. Am., Inc., 99 N.J. 402, 4l4 (l985).
    Where an ambiguity exists in the language of the statute, a court may rely upon extrinsic aids to resolve the ambiguity. State v. Sutton, l 32 N.J. 47l, 479 (l993); see also New Jersey Civil Serv. Ass'n v. State, 88 N.J. 605, 6l5 (l982) (stating that

such materials may serve as aids but may not be used to give a meaning not fairly within a statute). "Courts may . . . freely refer to legislative history and contemporaneous construction for whatever aid they may furnish in ascertaining the true intent of the legislation." New Jersey Pharmaceutical Ass'n v. Furman, 33 N.J. l2l, l30 (l960). In addition, "the reports of special committees or commissions appointed to study and suggest legislation are considered valuable aids" in seeking the intent of the Legislature. Shapiro v. Essex County Bd. of Freeholders, l 77 N.J. Super. 87, 93 (Law Div. l980), aff'd, 91 N.J. 430 (1982); see 2A Sutherland, Statutory Construction, § 48.ll.

Church for a "confessor in any way to betray a penitent* * *" was a crime. Raymond C. O'Brien and Michael T. Flannery, The Pending Gauntlet to Free Exercise: Mandating That Clergy Report Child Abuse, 25 Loy. L.A. L. Rev. l, 3l (l99l) (hereinafter O'Brien and Flannery). A confessor who directly violates the seal of confession incurs an automatic excommunication reserved to the Apostolic See. Id. at 3l. Traditionally, breaking the seal of confession "has been one of the most severely penalized offenses within the Code." Ibid. The sanctity of the confession was recognized in English law from the Norman Conquest in l066 until the English Reformation in the Sixteenth Century. After the Reformation, hostility towards the Catholic Church in England resulted in a refusal to recognize the privilege. See O'Brien and Flannery, supra, 25 Loy. L.A. L. Rev. at 31-32; William A. Cole, Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis, 21 Colum. J. L. & Soc. Probs. 1, 19-20 (1987) (hereinafter Cole); Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus Clergy Privilege and Free Exercise of Religion, 7l Minn. L. Rev. 723, 736 (l987) (hereinafter Mitchell); Jacob M. Yellin, The History and Current Status of the Clergy-Penitent Privilege, 23 Santa Clara L. Rev. 95, 95-108 (1983) (hereinafter Yellin); see also In re Grand Jury Investigation, 9l 8 F.2d 374, 38l n.l0 (3rd Cir. l99l) (sketching origins of privilege).

    When this country was founded, therefore, the privilege did not exist at common law. Accordingly, American courts required that the privilege be conferred by statute. Where no privilege existed, clergypersons were often compelled to testify despite personal, moral, and religious objections. Yellin, supra, 23 Santa Clara L. Rev. at l07. Although the Roman Catholic Church has the longest tradition of the sanctity of the confessional, for many other Christian denominations their "sincere dedication to secrecy is equally apparent." Cole, supra, 2l Colum. J. L. & Soc. Probs. at l7. In the Episcopal Church, for example, the new Book of Common Prayer's rite, "The Reconciliation of a Penitent," warns that the secrecy of a confession is morally absolute for the confessor, and must under no circumstances be broken. Violators are subject to church discipline. Ibid. The governing body of the American Lutheran Church also has adopted a resolution that the pastor hold inviolate and disclose to no one the confessions and communications made to him as a pastor without the specific consent of the person making the communication. Similarly, the Presbyterian Church in the U.S., the United Presbyterian Church, and the American Baptist Convention have adopted policy statements strongly affirming the inviolability of religious confidentiality. Id. at l7-l8.     
    The prospect of clergy going to jail to comply with their religious beliefs rather than disclosing a penitent's confession resulted in various religious groups bringing pressure on state

legislatures to enact a clergyperson privilege. Thus, the origin of the priest-penitent privilege as well as the moving force behind the enactment of the statutory privilege was to protect the clergyperson from being forced against his or her will to reveal confidences. Yellin, supra, 23 Santa Clara L. Rev. at l07. Now almost all states have clergyperson-penitent privileges. Id. at l07-l0.
    New Jersey did not recognize the privilege until it was created by statute in l947. See State v. Morehous, 97 N.J.L. 285, 295 (E. & A. l922).    By Act of June 20, l947, L. l947, c. 324, the Legislature enacted N.J.S.A. 2A:8l-9, which provided:
        A clergyman, or other minister of any religion, shall not be allowed or compelled to disclose in any court, or to any public officer, a confession made to him in his professional character, or as a spiritual advisor, or as a spiritual advisor in the course of discipline enjoined by the rules or practice of the religious body to which he belongs or of the religion which he professes.

Like its present-day equivalent, that precursor to Evidence Rule 29 did not identify the holder of the privilege. The Legislature enacted it under a subsection dealing with the competency of witnesses, and the subsection did not contain a provision subjecting it to waiver. On its face that original version of the priest-penitent privilege arguably could be no privilege at all, but rather a rule of competency. The plain meaning of the statute seems to suggest that a clergyperson is not competent to disclose in any court or to any public official confessions made

to him or her. It reads as an absolute ban on disclosure. See Richard J. Biunno, Rules of Evidence, comment l and 2 on Evid. R. 29 (l993) (hereinafter Biunno) ("the thrust of the rule and the original statute [was] that under no circumstances should a religious figure be considered as a source of evidence of this type"); Biunno, supra, comment l on Evid. R. 5ll (stating same).
    The recommendations of the two committees commissioned to study Evidence Rule 29, however, demonstrate that from its l947 enactment, the statute was intended as a privilege and not merely as a rule of competency. In the early l950s, this Court commissioned a committee to study the law of evidence and to make recommendations. That committee, the Committee on the Revision of the Law of Evidence (hereinafter the Jacobs Committee), issued its report in l955. The report took the form of a comparison between the then-existing New Jersey Evidentiary statutes and the Uniform Rules of Evidence that had been developed by the National Conference of Commissioners on Uniform State Laws. Because the Uniform Rules met with wide acceptance, the Jacobs Committee determined to use them as a base for its study. Report of the Committee on the Revision of the Law of Evidence to the New Jersey Supreme Court viii-ix (l955) (hereinafter the "Jacobs Committee Report").
    The Uniform Rule with respect to who has the power to waive the priest-penitent privilege, reads as follows:
        Rule 29. Priest-Penitent Privilege; Definiton; Penitential Communications.

        (2) A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he claims the privilege and the judge finds that (a) the communication was a penitential communication and (b) the witness is the penitent or the priest, and (c) the claimant is the penitent, or the priest making the claim on behalf of an absent penitent.

The Drafters' comment to the rule stated that the "rule permits either priest, broadly defined, or penitent to claim the privilege." Jacobs Committee Report, supra, at 76.
    The Jacobs Committee advised against the adoption of the Uniform Rule, recommending that N.J.S.A. 2A:8l-9 be adopted verbatim as the rule. Ibid. In its annotation the Committee made the following pertinent comments:
        4. Comparison between the New Jersey Statute and Uniform Rule.
        Under the rule the privilege belongs to the penitent, and he can waive it by partial disclosure to any one, or waive it in other ways, thereby compelling the priest to testify. The statute seems preferable.

        5. Under the rule the penitent has a privilege to refuse to disclose his confession whereas under the statute he has no privilege at all. Although the rule is better here, such disclosures almost always would be hearsay and therefore the matter is not important.

Those comments depict the Jacobs Committee's fear that under the rule the clergyperson could be compelled to testify and to divulge confidences. As the Appellate Division majority below noted, that concern may have stemmed from the desire to protect

the clergyperson's free exercise of religion or from the desire to curb the potential manipulations of a penitent who, through waiver, could compel a clergyperson to reveal communications that were given purposely to mislead. 263 N.J. Super. at ll0-ll n.5.
    Although the Jacobs Committee indicated that the Uniform Rule was preferable to the extent it permitted the penitent to refuse to disclose a confession, it rejected that rule in favor of the then-existing statute, which did not confer any privilege on the penitent. Jacobs Committee Report, supra, at 77.     Instead it preferred the statutory language under which the penitent had "no privilege at all" and under which the clergyperson could not be "allowed or compelled" to disclose. Ibid.     
    The language chosen by the Jacobs Committee indicates on its face that the penitent does not hold the privilege. Because the Jacobs Committee was concerned about the clergyperson being compelled to testify, its preference for the statute indicates that it viewed the statute as granting an evidentiary privilege to the clergyperson alone. Indeed, reading the statute to make the clergyperson the sole holder of the privilege seems the best way to ensure that the fears of the Jacobs Committee will not be realized; because the penitent does not hold the privilege, he or she cannot effectively waive it through disclosure or otherwise and therefore cannot compel disclosure by the clergyperson. That

is the view that the majority in the Appellate Division adopted and that the State urges on this Court.
    Based on the Jacobs Committee Report, the Legislature retained N.J.S.A. 2A:8l-9. Following the issuance of the Jacobs Committee Report, the Legislature appointed the Commission to Study the Improvement of the Law of Evidence (hereafter the Bigelow Commission). J. Res. l5., l79th Leg., l955 N.J. Laws l026. The Bigelow Commission issued its report in November of l956. See Report of the Commission to Study the Improvement of the Law of Evidence (l956) (hereinafter the "Bigelow Commission Report"). With regard to the priest-penitent privilege, the Bigelow Commission essentially recommended that the Legislature adopt the Jacobs Committee recommendation. Bigelow Commission Report, supra, at 38.
    The Bigelow Commission suggested two substantive changes to N.J.S.A. 2A:8l-9, the then-existing statute that the Jacobs Committee had endorsed. First, it expanded the scope of the non-disclosure rule to include "other confidential communications" in addition to confessions. Second, it made the non-disclosure rule subject to waiver. Regarding the former, the Bigelow Commission explained: "This Commission had added confidential communications[] [that] might not qualify as confessions but which should be privileged." Ibid. It made no reference in its comment to the inclusion of the phrase making the non-disclosure rule subject to waiver.

    That the Bigelow Commission believed that N.J.S.A. 2A:8l-9 was or should be a waivable privilege and not a rule of competency is evidenced by both the inclusion of the waiver provision and the comment that confidential communications should be privileged. If the non-disclosure rule could be waived, it certainly could not be an absolute ban on disclosure by the clergyperson. It could not be a rule of competency.
    The Commentator to the New Jersey Rules of Evidence claims that "[t]he inclusion of [the waiver] provision by the Bigelow Commission was probably in error because it contradicts the thrust of the rule and the original statute, namely that under no circumstances should a religious figure be considered as a source of evidence of this type." Biunno, supra, comment l on Evid. R. 5ll. Although the Bigelow Commission's inclusion of the waiver provision may have been based on a misunderstanding of the original nature of the non-disclosure rule, this Court cannot ignore its subsequent adoption by the Legislature by Act of July l, l960, L. l960, c. 52. We simply cannot ignore the express reference to the Evidence Rule 37 waiver.
    The inclusion of the waiver provision by the Bigelow Commission and its subsequent adoption by the Legislature does not, however, answer the question of who can waive the privilege. That the language is directed toward the clergyperson and does not expressly repose the privilege in the penitent we find telling, particularly in light of the fact that the Legislature

clearly identified the holder of other evidentiary privileges. See e.g., Evid. R. 26 (stating that attorney-client privilege belongs to client); N.J.S.A. 45:l4B-28 (stating that psychologist's privilege belongs to client); N.J.S.A. 2A:84A-22.l to -22.9 (stating that patient-physician privilege belongs to patient); Evid. R. 32 (stating that trade-secret privilege belongs to owner of secret, which may be claimed by agent or employee); Evid. R. 23(2) (stating that spouse of accused can testify without consent of defendant spouse); Evid. R. 28 (providing that spouse of accused can reveal marriage communications without consent of defendant spouse).              Moreover, valid reasons exist why the confider in the attorney-client privilege and the physician-patient privilege holds the privilege, but the penitent in the clergyperson-penitent privilege does not.
        [M]any ministers believe it to be a religious                  obligation to maintain the secrecy of penitential              communications despite the willingness of the penitent         to allow disclosure. In addition, it has been                  suggested that allowing a clergyman to testify when a              privilege is waived may lead to a penitent abusing the
        privilege.

    We find the plain waiver language of the statute, the interpretation of the statute by the Jacobs and Bigelow Committees, and the origin of the privilege to be persuasive evidence that the clergyperson is the only person who can waive the privilege. Evidence Rule 29 was written in reference to the clergyperson. It was the clergyperson with whom the Jacobs Committee was concerned when it recommended that the then-existing statute be retained. Neither the original priest-penitent privilege nor the statute as originally drafted was overly concerned with the penitent. See Jacobs Committee Report, supra, at 77.
    The only New Jersey case before this one involving the priest-penitent privilege also supports this view. In re Murtha, ll 5 N.J. Super. 380 (App. Div. 1971), involved the question of whether a Roman Catholic nun could assert the priest-penitent privilege in response to questions regarding her conversations with one of her former pupils. After holding that a nun did not qualify as "a clergyman, minister or other person or practitioner authorized to perform similar functions," id. at 386-87, the Appellate Division suggested that even if the privilege applied generally to nuns, it did not apply in that case because the nun had waived the privilege when she signed a sworn statement regarding her conversations with her former pupil. Id. at 387-88.

    Thus, the implication of the dicta in Murtha is clear. Specifically, the clergyperson is the holder of the priest-penitent privilege and can unilaterally waive the privilege by consenting to disclosure or by partial disclosure. Because the former pupil in Murtha had not consented to the disclosure, the Appellate Division's suggestion that the nun may have waived the privilege would be senseless, unless the clergyperson or an equivalent had the power unilaterally to waive the privilege.
    The Legislature amended the privilege in l98l. L. l98l, c. 303, § 2. The amendment expanded the privilege by adding at the end the following language: "nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role." The amendment did not address the question of who holds the privilege; it merely expanded the type of communications covered by the privilege. In light of the Murtha dicta to the effect that the clergyperson alone holds the privilege, one can reasonably infer that the Legislature believes that solely the clergyperson holds the privilege. Had the Legislature believed otherwise, it would have overruled that interpretation when it amended the statute. See Lemke v. Bailey, 4l N.J. 295, 30l (l963) ("The construction of a statute by the courts, supported . . . by continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with

legislative intent. . . . The persuasive effect of such legislative inaction is increased where the statute has been amended after a judicial construction without any change in the language so interpreted."); see also Quaremba v. Allan, 67 N.J. l, l4 (l975) (holding same); In re Petition of Keogh-Dwyer, 45 N.J. ll7, l20 (l965) (same); Egan v. Erie R. Co., 29 N.J. 243, 250 (l959) (same); Hooton v. Neeld, l 2 N.J. 396, 403 (l953) (same); Cook v. Bennett Gravel Co., 90 N.J.L. 9, l2 (Sup. Ct. l9l7) (same).

    Although the "shall not be allowed" language can possibly refer to the penitent, that language is more probably a vestige of what, perhaps, originally was a rule of competency. The "shall not be allowed" language seems most analoguous to the "may not testify" language employed in states where apparently no one may waive the privilege and the rule is more a rule of competence than of privilege. See, e.g., Ind. Code Ann. § 34-l-l4-5 (Burns Supp. l986); Mich. Comp. Laws Ann. § 600.2l56 (West Supp. l986); see also Mitchell, supra, 71 Minn. L. Rev. at 755-56 n.l8l (discussing those statutes).
    Given the fact that the privilege in New Jersey is expressly subject to waiver, to ignore the express waiver in favor of the ambiguous phrase "shall not be allowed" would defeat the Legislature's intent. "Where a choice must be made between two imperfect interpretations, the view should be selected which more likely accords with the probable legislative intent." Wissell, supra, 68 N.J. at 43; see also Roman v. Sharper, 53 N.J. 338, 342 (l969) (holding same).
    The language to the effect that the clergyperson "shall not be compelled" to disclose suggests that the clergyperson has the discretion to waive or insist on the privilege. See Mitchell, supra, 71 Minn. L. Rev. at 755-56 n.l8l. Moreover, where the intent of a legislature was to make both the clergyperson and the penitent the holders of the privilege, the statute is generally written to state that the clergyperson shall not be compelled to

disclose without the confider's consent. Ibid. Evidence Rule 29 is not written in that manner.
    The principle underlying both the seal of confession and the statutory privilege was not concern for the penitent but rather concern that the clergyperson would be compelled in violation of his or her religious vows to disclose such confidences. Because the principal rationale was to recognize and protect the religious vows of the clergy, to include the penitent as the holder of the privilege was not necessary. Although we recognize "the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return," Trammel, supra, 445 U.S. at 5l, 100 S. Ct. at 913, 63 L. Ed 2d at l95, we are not persuaded that the comfort of the penitent was the compelling motive for Evidence Rule 29.
    The numerous state clergy-privilege statutes are not iden