State v. J.G.

Justice RIVERA-SOTO,

dissenting.

N.J.S.A. 2A:84A-23 and N.J.R.E. 511 codify a privilege firmly-rooted in tradition and common sense: civil law will protect those communications between a cleric and a penitent made in confidence under circumstances where religious dogma bars disclosure. That tradition and common sense, however, draw their foundation from the acknowledgement of and the respect accorded to core religious tenets. Ignoring that fundament, the majority has adopted a rule that hermetically insulates the cleric-penitent privilege from its origins, eschews the privilege’s clear tradition, and ignores the statutory mandate.

Based on an unexpressed but nevertheless palpable fear of entangling itself in religious controversy, the majority has secularized this religion-based privilege, concluding expansively that “the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric’s professional character or role as a spiritual advisor.” Ante at 372-73, 990 A.2d at 1124. That conclusion stretches the narrow cleric-penitent privilege far past its moorings and renders it untethered to its roots. Because we speak of the cleric-penitent privilege, the majority’s standard perforce must be *393grounded on the fundamental tenets and practices of the religious belief represented by the cleric and espoused by the penitent, the objective facts surrounding the communications, the identity and purpose of the initiator of the communications, and any exchanges between the cleric and the penitent directly relevant to their spiritual relationship after the communications for which the privilege has been claimed have concluded. Anything else renders the “cleric” portion of the privilege surplusage, leaving only a generalized, utterly rootless and dangerously limitless “confidentiality” privilege.

Moreover, the majority—although adopting a new rule of law and without assessing whether that rule should be afforded full retroactivity, pipeline retroactively, purely prospective effect or prospective application—has applied its new standard to the facts as developed under a different rule of law to “conclude that the privilege applies.” Ante at 373, 990 A.2d at 1124. By denying these litigants the ability to develop and test their facts against this new standard, the majority has not rendered a judgment; it has issued a decree.

Both of those conclusions are in error. I, therefore, respectfully dissent.

I.

Any discussion of evidentiary privileges must start with the “fundamental principle that ‘the public ... has a right to every man’s evidence.’ ” Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186, 195 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884, 891 (1950)). The guiding precepts that govern the assertion of a claim of privilege are clear:

We begin our analysis by reviewing well-established principles regarding evidentiary privileges. As a general proposition, privileges are to be narrowly construed. That rule of construction stems from the fact that privileges contravene the fundamental principle that the public has a right to every man’s evidence. They are obstacles in the path of the normal trial objective of a search for ultimate truth.
*394Because privileges may often undermine the search for truth in the administration of justice, they are accepted only to the extent that they outweigh the public interest in the search for truth. They are accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure. Thus, privileges should always be construed and applied in sensible accommodation to the aim of a just result.
[State v. Szemple, 135 N.J. 406, 413-14, 640 A.2d 817 (1994) (citations, internal quotation marks and editing marks omitted).]

Those guiding precepts then must be applied within the context and in respect of the purpose for which a privilege is asserted. When, as here, there has been an assertion of the priest-penitent or cleric-penitent privilege, one cannot ignore that specific privilege’s origins and purpose:

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 ... 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 mil to reveal confidences.
[/d at 424, 640 A2d 817 (citation omitted) (emphasis in original).]

In the aggregate, those are the principles that must guide our discussion.

A.

The Supreme Court of the United States early asserted that, as a matter of common law, “suits cannot be maintained which would require a disclosure of the confidences of the confessional[.]” Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605, — (1876). In New Jersey, however, a different understanding of the common law then obtained in respect of the confidentiality accorded as a matter of law to cleric-penitent communications. Our case law explains plainly that “[n]o privilege of this nature exited at common law[ and, prior to 1947, t]here is no statute in New Jersey bestowing such a privilege.” State v. Morehous, 97 N.J.L. 285, 295, 117 A. 296 (E. & A.1922) (citations omitted). That void was filled in 1947, when the Legislature adopted the following priest-penitent privilege:

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 *395professional character, or as a spiritual advisor, or as a spiritual advisor in the course of discipline enjoined by the rules or practices of the religious body to which he belongs or of the religion which he professes.
[Zr. 1947, c. 324, § 1 (eff. Jun. 20, 1947), codified at B.S. 2:97-5.1, later codified at N.J.S.A. 2A:81-9J

See also Szemple, supra, 135 N.J. at 423-24, 640 A.2d 817 (“When this country was founded, therefore, the privilege did not exist at common law____New Jersey did not recognize the privilege until it was created by statute in 1947.”) By its explicit terms, the 1947 priest-penitent privilege limited its reach only to confessions made within a specific religious context.

Some thirteen years later, as part of the adoption of the Evidence Act of 1960, L. 1960, c. 52, § 1 to § 53, the Legislature restated and re-codified the then named priest-penitent privilege as Evidence Rule 29 as follows:

Subject to Rule 37,1 a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.
[L. 1960, c. 52, § 23 (eff. Jun. 20, 1960), codified at N.J.S.A. 2A.-84A-23 and Evidence Rule 29.J

Again, the priest-penitent privilege embodied in former Evidence Rule 29 remained moored firmly to a “confession or other confidential communication made ... in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.” As In re Murtha, 115 N.J.Super. 380, 385, 279 A.2d 889 (App.Div.), certif. denied, 59 N.J. 239, 281 A.2d 278 (1971), cogently explained:

Evidence Rule 29 obviously broadened the privilege to include not only a clergyman or minister, but any “other person or practitioner authorized to perform similar functions” of any religion. Moreover, the rule now prohibits not only the disclosure of a confession, but also any “confidential communication” made to any *396such designated person in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.2

Twenty-one years after the adoption of the Evidence Act of 1960, the Legislature again addressed the priest-penitent privilege, amending Evidence Rule 29 to read as follows:

Subject to Rule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and the individuals, couples, families or groups with respect to the exercise of his professional counseling role.
[L. 1981, c. 303, § 2 (eff. Nov. 11, 1981), codified at N.J.S.A. 2A:84A-23 and Evidence Rule 29 (added language underscored).]

Tellingly, the Legislature again took pains to tether the existence of the privilege firmly to its religious moorings.

This historical trail leads to the current iteration of the now-called cleric-penitent privilege.2 3 In 1994, the Legislature renamed the privilege the “cleric-penitent” privilege to provide that “[a]ny communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged.” L. 1994, c. 123, § 1 (eff. Oct. 26, 1994), codified at N.J.S.A. 2A:84A-23 and N.J.R.E. 511. The privilege retained the substance of the additions made in 1981, providing that “ ‘cleric’ *397means a priest, rabbi, minister or other person or practitioner authorized to perform similar functions of any religion[,]” and that “[p]rivileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role.” Ibid 4 Again, the invocation of the cleric-penitent privilege remained inextricably tied to a communication made “in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes [.]” Ibid, (emphasis supplied).

The lesson learned from the development of the privilege in New Jersey is clear. Although the Legislature has expanded the scope of the priest-penitent—or the now cleric-penitent—privilege from its early “seal of confession” origins, it has steadfastly required that any such privilege claim be closely aligned to a religious practice; confidentiality alone is insufficient to invoke the privilege.

B.

By stating that it “applies when, under the totality of the circumstances, an objectively reasonable penitent would believe *398that a communication was secret, that is, made in confidence to a cleric in the cleric’s professional character or role as a spiritual advisor[,]” ante at 373, 990 A.2d at 1124, the majority’s newly stated standard turns the cleric-penitent privilege on its head, secularizes an otherwise religion-based privilege, and sterilizes it from its religious foundations. The better rule is to remain true to the privilege’s limited purpose—and thereby also honor the principle that privileges are to be applied narrowly—and continue to require that the invocation of the privilege must be moored to the confidentiality requirements of specific religious tenets.

It has been noted most persuasively that

[i]n determining whether a clergy-communicant privilege exists, we weigh Dean Wigmore’s four fundamental prerequisites for a privilege against the disclosure of communications:
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory-maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[In re Grand Jury Investigation, 918 F.2d 374, 383-84 (3d Cir.1990) (citation omitted; emphasis in original).]

The first two prerequisites speak to the same point: a statement made in confidence under a well-founded expectation of confidentiality. And, in order to be well-founded, any expectation of confidentiality must trace its genealogy directly to a recognized religious tenet. As one commenter has explained:

The confidentiality requirement imposes further limits on the privilege: only that communication which is a cleric is prohibited by the dictates of his religion from, disclosing should be deemed privileged. In the absence of such an obligation on the part of the cleric, the privilege’s claimant (the penitent) cannot argue that confidentiality was both expected and necessary____[C]ommunications lacking ...
a guarantee of confidentiality cannot be considered privileged. As only those communications in which secrecy on the part of the cleric is required by the dictates of the cleric’s religion satisfy this requirement, only those communications ought to be considered privileged.
*399[Ronald J. Colombo, Note, Forgive Us Our Sins: The Inadequacies of the Clergy-Client Privilege, 73 N.Y.U. L.Rev. 225, 246-47 (1998) (footnote omitted; emphasis supplied).]

Thus, in striking the necessary balance in determining whether a cleric-penitent communication is worthy of the privilege, it is entirely right and proper under New Jersey’s statute and Rule of Evidence “to exclude those religions that do not require confidentiality and include[e] those that do[.]” Chad Horner, Note, Beyond the Confines of the Confessional: The Priest-Penitent Privilege in a Diverse Society, 45 Drake L.Rev. 697, 729-30 (1997) (suggesting that privilege should apply only “if the religious tenets of a elergyperson’s religion prohibit under all circumstances disclosure of such communications” (emphasis supplied)).

In light of the variety of religious beliefs that today find respectful expression in our society, the notion that a claim of cleric-penitent privilege must be rooted firmly in the religious mores of the cleric is not only compelled by our statutory history and structure, it is self-evident. Without purporting to exhaust all relevant religions, reference to the tenets of a few major religions is illustrative. For example, Roman Catholicism grants absolute confidentiality only to those communications made under the seal of confession. See Robert John Araujo, S.J., International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the “Priestr-Penitent” Privilege Under International Law, 15 Am. U. Int’l L.Rev. 639, 643-48 (1999-2000) (describing origins of priest-penitent privilege). Yet, although contrary to Catholic dogma, the majority’s iteration of the principle would shield even non-confessional conversations between a priest and a penitent, a result far outside Roman Catholic Canon Law and far broader than the universe of communications the privilege originally was intended to protect. Thus, under the majority’s iteration of the cleric-penitent privilege, an odd and topsy-turvy result obtains: an observant Buddhist speaking “in confidence” with a Roman Catholic priest successfully may assert the privilege even though the Code of Canon Law to which that Roman Catholic priest must abide does not require any such confidentiality.

*400Other Christian denominations may fare differently. Because some “Protestant clergy cannot claim that religious law prevents them from testifying),]” Homer, supra, 45 Drake L.Rev. at 729 (emphasis in original), the only basis for the assertion of the privilege in that setting is not religious, but some ill-defined promise of confidentiality. That basis, however, is entirely illusory: “Merely promising a penitent that a confession will be kept secret should not protect the communication. Often people make promises not to divulge information. Their promises, however, cannot withstand a court subpoena. The difference [in allowing the privilege] is simply that the context is religious.” Ibid. (emphasis supplied).

Similarly, “Muslims are required to treat other people’s confidences with the utmost respect. Prophet Muhammad calls such confidences ‘trusts.’ ” Azizah al-Hibri, The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A L.Rev. 1723, 1725 (1995-96) (footnote omitted). Thus, “observing the relationship of trust is very important in Islam, and is the duty of every Muslim.” Ibid. Yet, despite this overarching duty of confidentiality, a Muslim to whom a murderer has confessed “has no option but to advise [the murderer] to confess and to inform the authorities of the confession if [he] refuses to do so himself.” Id. at 1731. This is so because “[m]urder is viewed in Islam as such a heinous crime that it would provide sufficient justification for overriding the confidentiality requirement.” Id. at 1732. See also People v. Johnson, 115 A.D.2d 973, 497 N.Y.S.2d 539, 539-40 (1985) (holding that “confidential communications between a Muslim brother acting as a spiritual advisor may, in some cases, be privileged” and that “[f]or communications to be privileged, they must have been made with the purpose of seeking religious counsel, advice, solace, absolution or ministration [and t]hey must also have been made with the intention that they remain confidential” (citations and internal quotation marks omitted)). It is in respect of Islam that the illogic resulting from the majority’s religion-adverse statement of the privilege starkly comes into focus: a Muslim, who is duty-bound by his faith to disclose a murderer’s confession, will be *401barred from making that disclosure by the assertion of a privilege originally founded on a deep and abiding respect for religious beliefs. That result needlessly pits civil law antagonistically against one of the World’s major religions; it cannot be sustained.

Likewise, based generally on the Biblical injunctions that “justice, justice thou shall pursue[,]” Deuteronomy 16:20, and the direct commandment to Moses that “you shall not stand aside while your fellow’s blood is shed[,]” Leviticus 19:16, Judaism imposes the prohibitory law of Lo Ta’amod Al Da’am Reiacha, pursuant to which “Maimonidies ruled that one who is in a position to save another by reporting on a wrongdoer, and refrains from doing so, has violated the prohibition of standing idly by.” Israel M. Greisman, Comment, The Jewish Criminal Lawyer’s Dilemma, 29 Fordham Urb. L.J. 2413, 2432 (2001-2002) (citing Maimonidies, Mishna Torah Hilchos Rotzeiach 1:14). Arising out of that passage in Leviticus, Jewish law implies that “you should always keep confidences, but only to the extent that such will not present a danger to others.” Id. at 2433 (citing Rabbi Ovadia Yossef, Yechava Daas 4:60).

Suffice it to note that even less “mainstream” religions treat certain communications between parishioners and clergy as confidential. See, e.g., Natasha Bita, Scientologists in Privilege Claim, The Australian, Oct. 26, 2009, available at http://www. theaustralian.com.au/news/scientologists-in-privilege-claim/story-e6 frg6oo-1225791165224 (explaining that Church of Scientology maintains “audit” file on parishioners that are “privileged and sacrosanct.... [They] are notations of a parishioner’s spiritual progress,” and reporting privilege claim sustained against coroner’s demand for information).

The overarching lesson gleaned from this most cursory review is clear: applying a cleric-penitent privilege without mooring it to some core religious tenet that protects the cleric trivializes the privilege and, more importantly, the societal goals it is designed to protect. Yet, there is no room in the majority’s iteration of its *402standard for the bedrock religious concerns that gave rise to the privilege in the first instance.

Therefore, a better, more sensible rule would temper the standard adopted by the majority so that proper weight is given to the logical and historical underpinnings of the cleric-penitent privilege. Thus, it should be made explicit that the party asserting the cleric-penitent privilege must bear the burden of going forward and of persuasion, and demonstrate that an objectively reasonable penitent would believe that the challenged communication was made in confidence, as acknowledged by recognized religious tenets, to a cleric in the cleric’s professional character or role as a spiritual advisor. Plainly said, in order for the cleric-penitent privilege to make sense, the question of whether the communication was made “in confidence” must be informed and governed by the fundamental tenets and practices of the religious belief represented by the cleric and espoused by the penitent, the objective facts surrounding the communications, the identity and purpose of the initiator of the communications, and any exchanges between the cleric and the penitent directly relevant to their spiritual relationship after the communications for which the privilege has been claimed have concluded.

In its application, then, the rule should be quite simple. If a communication would not be deemed privileged by the relevant religious authorities, that is, by “the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes[,]” N.J.S.A 2A:84A-23; N.J.R.E. 511, then it should not be deemed privileged by civil authorities. On the other hand, if the communication is one that would have been deemed privileged in the proper religious context and it is made to one satisfying the definition of a cleric, that is, “a priest, rabbi, minister or other person or practitioner authorized to perform similar functions of any religion[,]” N.J.S.A 2A:84A-23; N.J.R.E. 511, then the privilege should apply. In the end, that plain rule does nothing more than acknowledge the New Testament’s injunction, one that also finds expression in the Establishment Clause *403and the Free Exercise Clause of the First Amendment to the United States Constitution, U.S. Const, amend. I, and paragraphs 3 and 4 of Article I of the New Jersey Constitution, N.J. Const. art. I, HH3-4: “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.” Matthew 22:21.

Because the majority eschews such common sense and historically laden interpretation of the privilege in favor of an antiseptic, purely secular formulation, I must dissent.

II.

Even if one were to agree that the majority’s statement of the standard applicable for the invocation of the cleric-penitent privilege was correct, the majority’s application of that standard in this case separately requires that I dissent for two reasons: the majority’s failure to analyze whether its new standard constitutes a new rule of law, requiring a full-fledged analysis of its retroactive or prospective effect; and the brute force application of this new standard in this case, without allowing the parties to frame their proofs in conformity with the majority’s new standard, denies the State even a modicum of the fairness required by due process.

A.

This Court has made clear that “a case announces a new rule when it breaks new ground or imposes a new obligation on the State or if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” State v. Molina, 187 N.J. 531, 543, 902 A.2d 200 (2006) (quoting State v. Lark, 117 N.J. 331, 339, 567 A.2d 197 (1989) (internal quotation marks and editing marks omitted)); accord State v. Cummings, 184 N.J. 84, 97, 875 A.2d 906 (2005) (quoting State v. Knight, 145 N.J. 233, 250-51, 678 A.2d 642 (1996)).

When measured against that yardstick, the standard today announced by the majority cannot be anything other than a “new *404rule of law.” Even the majority must concede that it has stated a new test; otherwise and in a very practical sense, there would have been no reason, in the first instance, for the Court to have developed the standard it now has. Given that conclusion, one must determine “whether the rule we announce today ‘is to be applied retroactively and, if so, to what extent, a determination that implicates a three-step analysis.’ ” Molina, supra, 187 N.J. at 542-43, 902 A.2d 200 (quoting Cummings, supra, 184 N.J. at 96-97, 875 A.2d 906). That “three-step analysis” consists of

(1) whether the rule at issue is a new rule of law for purposes of retroactivity analysis; (2) a balancing of the purpose of the new rule, the degree of reliance placed on the old rule, and the effect a retroactive application would have on the administration of justice; and (3) whether the rule is to be applied prospectively only, applied prospectively and in the ease under consideration, given pipeline retroactivity, or given complete retroactivity.
[Id. at 543, 902 A2d 200 (citations, internal quotation marks and editing marks omitted).]

Once it is determined that a new rule of law is to be applied,

four possible options are available:
(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted.
[State v. Colbert, 190 N.J. 14, 22-23, 918 A.2d 14 (2007) (quoting State v. Burstein, 85 N.J. 394, 402-03, 427 A.2d 525 (1981).) ]

Although the majority’s new standard undoubtedly qualifies as a new rule of law, the required analysis of whether that new rule should be applied in this case—or in any other case—is noticeably absent. The majority does not address whether its new rule is one to which retroactivity analysis applies; the majority does not engage in the critical, necessary weighing analysis due between the old and new rule; and the majority does not determine what level of retroactivity or prospective application its new rule should have. Because the majority fails to discuss whether it has *405adopted a new rule or whether that rule should have retroactive or prospective effect, I must dissent.

B.

Finally, eschewing any form of new rule/retroactivity analysis, the majority simply applies its new rule to the facts as developed below—albeit in respect of a different rule of law—and reaches its own conclusions. Even though it admits that “[i]t is unclear whether the trial court followed the ... approach” adopted by the majority, ante at 388, 990 A2d at 1133, the majority nevertheless “conclude[s] that there is ample support in the record for the ... conclusion that the privilege applies.” Ibid. Because that procedure artificially and needlessly forecloses the parties from the opportunity or ability to develop a proper record while cognizant and on notice of the controlling legal principles, I also must dissent.

It hardly need be said: a bedrock principle of due process is that parties must be on notice of what is to be litigated. McKesson Corp. v. Hackensack Med. Imaging, 197 N.J. 262, 275, 962 A.2d 1076 (2009) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490, 497 (1980)). See also Simmermon v. Dryvit Systems, Inc., 196 N.J. 316, 330, 953 A.2d 478 (2008) (explaining that “ ‘minimum procedural requirements’ [of due process] are ‘notice plus an opportunity to be heard and participate in the litigation’ ” (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 105 S.Ct. 2965, 2974, 86 L.Ed.2d 628, 641-42 (1985)); Jamgochian v. New Jersey State Parole Bd., 196 N.J. 222, 240, 952 A.2d 1060 (2008) (stating that “ ‘[t]he minimum requirements of due process ... are notice and the opportunity to be heard’ ” (quoting Doe v. Poritz, 142 N.J. 1, 106, 662 A.2d 367 (1995)).

The parties in this case, in contrast, have been denied that core element of due process. Given the result forcibly commanded by the majority, defendant should have little cause for complaint. The State, on the other hand, is in these very real respects a *406litigant like any other, and one that also is entitled to fairness, a leitmotif that pervades our jurisprudence. See, e.g., Pasqua v. Council, 186 N.J. 127, 142, 892 A.2d 668 (2006) (stating that due process “is nothing more than affording ‘fundamental fairness’ to a litigant in a particular situation” (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640, 648 (1981)); Oliver v. Ambrose, 152 N.J. 383, 403, 705 A.2d 742 (1998) (stating that judicial economy “cannot override ... overall objective of fairness to litigants”); Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 345, 643 A.2d 1 (1994) (requiring that “a court should consider the fairness to the litigant when the issues of damages and liability may be indivisible”); N.J. Election Law Enforcement Comm’n v. Citizens to Make Mayor-Council Gov’t Work, 107 N.J. 380, 388, 526 A.2d 1069 (1987) (explaining that, “[i]n choosing between [retroactivity/prospective application] options, the court must weigh considerations of fairness to the litigants as well as the dictates of sound public policy”); Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 227, 294 A.2d 7 (1972) (stating class action rules “should be applied liberally ... if it is possible to do so with fairness to the litigants”); State v. McCann, 391 N.J.Super. 542, 553, 919 A.2d 136 (App.Div.2007) (stating that judicial disqualification implicates, among other concerns, fairness to litigants); Arenas v. Gari, 309 N.J.Super. 1, 19, 706 A.2d 736 (App.Div.1998) (holding that “jurors must not only be fair and impartial, they also must appear so, in order to maintain the litigants’ confidence in the basic fairness of the trial”); Klajman v. Fair Lawn Estates, 292 N.J.Super. 54, 61, 678 A.2d 289 (App.Div. 1996) (vacating dismissal of complaint because “[fjairness to the affected litigant requires no less”).

In the end, there simply is no logical or jurisprudentially valid reason the majority, after stating its new standard, does not remand this case for a new hearing where, on a level and properly informed playing field, the litigants can make their best case and argue to the trial court based on clear legal principles. Anything less is trial by ambush, and nothing more than an unfair change in the rules after the match has been played.

*407III.

For the reasons presented, I would adopt a standard for the evaluation of cleric-penitent privilege claims that incorporates the relevant religious tenets in determining whether the conversation to be disclosed was in fact confidential and, therefore, worthy of the privilege. In any event, I also would remand this case to the trial court for the development of a record informed by the relevant—and concededly new—legal principles today adopted. Because the majority does neither, I respectfully dissent.

For reversal and remandment—Chief Justice RABNER, and Justices LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS—6.

For affirmance—Justice RIVERA-SOTO—1.

Evidence Rule 37 addressed waivers of the privilege. See L. 1960, c. 53, § 29 (eff. Jun. 20, 1960), codified at NJ.S.A. 2A:84A-29, now codified at N.J.R.E. 530. See Table of Dispositions, Biunno, Current N.J. Rules of Evidence, 903 (2009). Other than adding that caveat and updating the list of those who qualify as "clergy” under the statute, the substance of the privilege remained unaffected.

In re Murtha is poignantly instructive; it specifically disallowed the privilege for communications made to a Catholic nun, noting that she did not qualify under the statutory classifications of "clergyman, minister or other person or practitioner authorized to perform similar functions.” Supra, 115 NJ.Super. at 386, 279 A.2d 889.

In 1991, Evidence Rule 29 was re-codified as New Jersey Evidence Rule 511 as a result of the work of the New Jersey Supreme Court Committee on the Rules of Evidence, which was charged "to consider whether or to what extent New Jersey should adopt the Federal Rules of Evidence which are now followed by many states," Report of the New Jersey Supreme Court Committee on the Rules of Evidence, reprinted at Biunno, supra, at ix. See Table of Dispositions, id. at 903.

The 1994 amendments to the cleric-penitent privileges also included a new provision defining who may waive the privilege. It now provides:

The privilege accorded to communications under this rule shall belong to both the cleric and the person or persons making the communication and shall be subject to waiver only under the following circumstances:
(1) both the person or persons making the communication and the cleric consent to the waiver of the privilege; or
(2) the privileged communication pertains to a future criminal act, in which case, the cleric alone may, but is not required to, waive the privilege. [L. 1994, c. 123, § 1 (eff. Oct. 26, 1994), codified at N.J.S.A. 2A:84A-23 and NJ.R.E. 511.]

The effect of this addition was to overrule, in part, this Court’s holding in Szemple that "the clergyperson is the only person who can waive the privilege.” Supra, 135 NJ. at 429, 640 A.2d 817.