In representing a priest at an interview with a diocesan-appointed investigator, keep in mind two general considerations: (A) What to do in advance of the interview; and (B) What to do at the interview.
A. Pre-Interview Considerations.
As a threshold matter, consider whether and to what extent you will cooperate with the preliminary investigation, including submitting to the interview. Participation is voluntary.
Remind the priest (repeatedly) that you are his canonical advocate and that all communications should go through you. He should never answer questions unless you are present.
If the priest is too upset or too angry to present himself well, consider declining the interview, even though this may be used against him.
If, however, he is composed and well prepared, the interview may give him the opportunity to provide his side of the story as an initial step in his own defense.
Consider the following matters in advance of the interview, or if that is not possible, at the start of the interview.
1. Recorded Interview.
Consider whether it will be in the priest’s best interest to record the interview. A recording will allow you to correct any inaccuracies that may appear in the investigator’s report. Ensure that you will given a copy of that recording.
A recording may or may not be privileged under the secular law in your jurisdiction if a criminal or civil proceeding is pending or may result. Consider whether you (and the priest) are willing to waive privilege in submitting to the interview. State at the outset that you are reserving all rights to claim privilege, but be prepared to lose that claim.
Consider how confident you are in your knowledge of the facts and the priest’s ability to answer questions in an unrehearsed and sincere manner. A recording of a priest who sounds confident and kind, who categorically denies the accusations, and who does not come across as evasive, may prove to be helpful. A recording that does not reflect well on the priest should be avoided.
Obtain the investigator’s consent to record the interview. Consider whether you would decline the interview if consent is withheld.
2. Advance Letter.
Send a letter to the investigator in which you:
(A model letter is attached.)
Determine the investigator’s experience in conducting preliminary investigations under canon law, even if the investigator has law enforcement experience. Remember that the aims and functions of investigators under civil law are different than preliminary investigations under canon law. You may need to help the investigator appreciate those distinctions.
If the only way to obtain this information is to ask the investigator, do it as conversationally as possible; don’t make the mistake of “cross-examining” the interviewer, as that will be confrontational and will not help the priest.
B. The Interview.
The interview, of course, is a highly important event and great care must be taken in setting the tone and ground rules in a polite and non-threatening manner.
1. Make Introductions.
Make clear you are a canonist, that you are a lawyer under church law, and that you are representing the priest as his canonical advisor/advocate.
If you are also a civil lawyer, make clear whether you are serving in that capacity as well, as it may have implications for future assertions of the attorney client privilege and attorney work product doctrine, depending on your jurisdiction. (Also keep in mind potential issues regarding the unauthorized practice of law in a given jurisdiction.)
Ask the interviewer for identification, and be prepared to show yours.
2. Obtain Consent To Record.
Obtain consent to record the interview if you have decided on this approach as discussed above. Consider whether you will terminate the interview if the interviewer declines to give consent.
3. Open With A Prayer.
Ask the priest to open the interview with a prayer. Discuss this with him in advance so he can prepare a short, suitable prayer. The interview will already be stressful enough without putting him on the spot.
4. Set Ground Rules.
Set the ground rules. Even though you may have already done so in the pre-interview letter to the investigation, repeat the rules, especially if it will be recorded. Here is a sample approach:
“Father has agreed to participate in this interview on the understanding that this investigation will be conducted consistent with canon law and the procedure for investigations under the CDF’s Vademecum issued in June 2022. There are a few things we would like to confirm with you before we begin to make sure there are no misunderstandings.
First, Father is here freely, he is under no obligation to answer any of your questions, and he can end this interview at any time.
Second, Father cannot be forced to confess to anything, and, as provided in canon 1728 § 2, under no circumstances may he be required to take an oath.
Third, Father is entitled to a presumption of innocence as provided in canon 1321 § 1, and he is entitled to the protection of his good name, as provided in canon 220 and canon 1717 § 2.
Fourth, you will be conducting the preliminary investigation, of which this interview is part, consistent with the purpose of a preliminary investigation as described in canon, 1718 § 1, and the only purpose of this investigation is to collect enough information so as to help the Ordinary decide [1] whether a process to inflict or declare a penalty can be initiated, and [2] whether this is expedient given the goals of canonical penal law, as provided in canon 1341.
5. Obtain Concurrence.
After you have read the ground rules, obtain the investigator’s concurrence in these rules or identify issues of disagreement. Make sure this discussion is on the record or is otherwise noted in writing. You may ask the question something like this:
“Can you please confirm that you agree with each of the above points?”
“Can you please confirm you have reviewed the cited provisions of the Code, and that you have read the Vademecum in preparation for today’s interview?”
If the investigator declines to confirm any point, ask the investigator why and to identify and explain any points of disagreement.
If the investigator has not reviewed the citation provisions or the Vademecum, have copies available and provide them. Consider terminating the interview and rescheduling it until after the investigator has read them.
6. Object To Irrelevant Questions.
Do not allow questions about the priest’s education and formation. Many interviewers, especially former law enforcement officers, will begin with biographical information. This is a way to ease into the interview, build rapport, and get interviewees to let their guard down. Consider interjecting with the following:
“Your questions are about Father’s education and formation. All of that information is contained in his personnel files and you know this information. We do not wish to go over that information now, as it is not relevant to this inquiry and is not a good use of our time. Do you have any specific questions about Father’s background that is not in the file?”
Do not allow questions about the priest’s health or privacy unless they are directly relevant to the investigation. Consider interjecting with the following:
“Can you please tell us how this information is relevant to the issues raised by this investigation? Unless you can explain how it is so relevant, then I’m instructing Father not to answer that question, because of his right to privacy.”
Do not trust assurances of confidentiality. There are no guarantees of confidentiality. Respond as follows:
“I understand that you may wish to maintain confidentiality, but we have no confidence you can guarantee it. We must assume that your interview, and any documents you compile or reports you prepare, including your notes of this interview, may be discoverable or released in the future without Father’s permission or over his objection. We cannot allow some innocent response to be taken out of context and then used against him and/or released to the press, or both."
Do not allow questions unrelated to the alleged delict. While you should be concerned about how such information may be used in the canonical process, you must also be concerned with the potential disclosure and use of “other acts” evidence under Federal Rule of Evidence 404(b) or its state-law equivalent. Consider interjecting with the following:
“I’m instructing Father not to answer that question. As we noted at the outset, this interview is for the limited purpose of helping the Ordinary decide whether a canonical penal process should be initiated, which can only occur if there is evidence of a canonical delict. This question goes beyond that. Father has already categorically denied the alleged delict. He is here only to answer questions that are relevant to determining the truth or falsity of the specific delict alleged in the Ordinary’s decree."
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