Whose Rule Governs Clergy-Communicant Privilege When the Communication Was Made in Another State?

In Campbell v. State of Texas, (TX Ct. Cr. App., Sept. 17, 2026), the Texas Court of Criminal Appeals (the state's highest court for criminal cases) refused to grant review in a case posing the question of which state's rule on clergy-communicant privilege applies when the communication takes place in a different state from the one in which defendant is being tried. The majority did not issue an opinion along with its order denying review. However, Judge Yeary filed a dissenting opinion explaining the case and urging review. He said in part:

Appellant was charged, in Harris County, Texas, with murdering his girlfriend. His girlfriend was killed in Texas. And then Appellant went to his mother's home in North Carolina.

While he was in North Carolina, Appellant's mother urged Appellant to speak with a bishop on the telephone. While he was on the phone with the bishop, and allegedly with his mother still in the room, Appellant made a statement admitting that he killed his girlfriend. During trial, the bishop was called to testify as a witness about the contents of Appellant's statement.

Appellant had asked the trial court to suppress the statements he made to the bishop in accordance with our Texas Rule of Evidence addressing the clergy-communicant privilege. But the trial court overruled his motion. The bishop's testimony about Appellant's statements was admitted into evidence at Appellant's trial and he was ultimately convicted. The First Court of Appeals then affirmed the trial court's decision to admit the bishop's testimony, concluding that the North Carolina clergy-communicant privilege applies, rather than the Texas rule....

The Restatement urges state courts to use the "most significant relationship test" when determining which state's law applies. However, the Restatement is not the law of this state....

Applying a different state's law or rule can have a massive impact on the outcome of cases.... In this case, Appellant's mother appears to have been present during the call between Appellant and the bishop when Appellant made the statements at issue. Under Texas Rule of Evidence Rule 505(a)(3), Appellant's mother's presence might not serve to preclude Appellant from asserting the clergy-communicant privilege. It is therefore conceivable that, if the Texas Rule had been applied, Appellant might have been able to prevent the bishop from testifying....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

5th Circuit: Evidence of Defendant's Affiliation with Satanism Was Relevant in Sentencing Phase of Murder Trial

In Davis v. Guerrero, (5th Cir., June 25, 2026), the U.S. 5th Circuit Court of Appeals upheld the death sentence imposed on Irving Davis who was convicted of raping and murdering a 15-year-old.  In the habeas proceeding challenging the sentence, Davis contended that it was error for the state to introduce evidence of his affiliation with Satanism at the sentencing hearing. The district court rejected that claim, and the 5th Circuit affirmed that decision, citing Supreme Court precedent that rejected the argument that the Constitution forbids consideration of evidence protected by the First Amendment in making sentencing decisions. The 5th Circuit then went on in part to say:

... [T]he evidence [in this case] was not adduced just because the jury could think that Satanism is unpalatable in and of itself, but to indicate that Davis’s adherence to Satanist views increased the likelihood that he would be a danger to society. ....

Davis claims it is undisputed that he was an adherent of the Church of Satan and its non-violent ideals, but as previously highlighted that is not the case.  Because the actual nature of Davis’s relationship with Satanism was not undisputed or established as a fact, it was reasonable for the CCA to conclude that Davis belonged to a group that endorsed or encouraged violence.  Likewise, it was not unreasonable for the CCA to rely on Haley’s interpretation merely because another expert and Davis himself testified that the language in the Satanic texts were symbolic. ...

... [T]he drawings and writings “exhibit[ed] a preoccupation with rape, violence (particularly towards women), and death.”...  Because those materials were admissible on their own, the bare fact of Davis’s association with Satanism ... would likely be beneficial, not prejudicial, to Davis, providing him an opportunity to explain the metaphorical nature of his writings....

Texas Scorecard reports on the decision.

Evidence of Religious Differences Between Accused and Victim Did Not Require Reversal of Murder Conviction

In State of Washington v. Darraji, (WA App., May 22, 2025), a Washington state appellate court by a 2-1 vote affirmed a second-degree felony murder conviction of defendant, an Iraqi immigrant. Defendant, Yasir, was charged with murdering his former wife, Ibthal.  The court explained:

At trial, the State’s theory was that Ibtihal’s rejection of traditional Iraqi culture and Islamic beliefs, and her embrace of American culture and Christianity, was the source of conflict between the former spouses.  Their fighting and insults escalated until Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit the car on fire with Ibtihal’s body inside. 

On appeal, Yasir argues that the State committed prosecutorial misconduct by introducing irrelevant and inflammatory evidence of Islamic beliefs to invoke anti-Muslim bias with jurors.

The majority rejected defendant's arguments, saying in part:

The comments and questions by the prosecutor were based on evidence and introduced to show motive.  The State maintained that Yasir believed Ibtihal’s changing behaviors failed to conform to Iraqi culture and Islamic beliefs and were disrespectful, insulting, and reflected poorly on him.... The non-conforming behavior included drinking, smoking, going to bars, dating, driving, working, not covering her hair, and attending a Christian church.  While Yasir’s appeal focuses primarily on evidence of the couples’ religious differences, the State maintained that Ibtihal’s conversion to Christianity and decision to wear her hair uncovered was part of the larger picture....

The foregoing questions and comments were based on relevant evidence and reasonable inferences ... and were introduced to show motive.  An objective observer could not view these questions and comments as an appeal to bias or prejudice against Muslims or persons from Iraq.

Judge Fearing dissented, saying in part:

... [B]ecause of the divisive subject of Islam and stereotypes of Middle Eastern men, the State needed to selectively, thoughtfully, and carefully present its evidence rather than turn the trial into a contest between American culture and Christianity, on the one hand, and Iraqi culture and Islam, on the other hand....  

The State gratuitously painted victim Ibtihal Darraji as Christian and American and defendant Yasir Darraji as Muslim and un-American.  The State even went as far as suggesting Ibtihal was a martyr to Christianity.  With its testimony and arguments to the jury, the State employed the ancient, but common, practice of portraying the victim as “us” and the accused as “them” in order to assure a conviction.  I would reverse and remand for a new trial because Yasir Darraji did not receive a fair trial....    

Leader in International Neo-Nazi Group Indicted for Soliciting Hate Crimes and Mass Violence

The U.S. Attorney's Office for the Eastern District of New York announced last week the federal indictment of the leader of an international neo-Nazi group. The press release said in part:

A federal grand jury in Brooklyn yesterday returned a four-count indictment charging Georgian national Michail Chkhikvishvili, also known as ... “Commander Butcher” ... with soliciting hate crimes and acts of mass violence in New York City.  Chkhikvishvili was arrested in Chișinău, Moldova on July 6, 2024 pursuant to an Interpol Wanted Person Diffusion.... Chkhikvishvili is alleged to be a leader of the Maniac Murder Cult,... an international racially or ethnically motivated violent extremist group.  Chkhikvishvili allegedly recruited others to commit violent acts in furtherance of MKY’s ideologies, including planning and soliciting a mass casualty attack in New York City....

Beginning in approximately November 2023, Chkhikvishvili solicited [an FBI undercover agent ("UC")] ... to commit violent crimes....  Chkhikvishvili provided detailed plans and materials such as bomb-making instructions and guidance on making Molotov cocktails.... In November 2023, Chkhikvishvili began planning a mass casualty attack in New York City to take place on New Year’s Eve.  The scheme involved an individual dressing up as Santa Claus and handing out candy laced with poison to racial minorities.  The scheme also involved providing candy laced with poison to children at Jewish schools in Brooklyn.  Chkhikvishvili drafted step-by-step instructions to carry out the scheme and shared with the UC detailed manuals on creating and mixing lethal poisons and gases.  He also instructed the UC on methods of making ricin-based poisons in powder and liquid form....

Texas Man Sentenced To 37 Years in Muslim Hate Crime Murder

A Department of Justice press release reports that yesterday a Texas federal district court sentenced a defendant to 37 years in prison (with credit for time served before sentencing) for a mass shooting at a Dallas car repair business. Thirty-nine year old Anthony Paz Torres had pleaded guilty to five federal hate crime counts. DOJ explains:

 According to court documents, Torres admitted that a few days prior to the shooting, he went to Omar’s Wheels and Tires, made anti-Muslim comments, and pledged that he would come back. When he returned to the business on Dec. 24, 2015, Torres asked customers if they were Muslim. After being escorted back to his vehicle by Omar’s Wheels and Tires employees, Torres discharged his firearm in the direction of multiple employees and customers. Torres admitted that he killed one person and attempted to kill four other people at Omar’s Wheels and Tires because he believed that they were Muslim. 

Army Appeals Court: Poisoning Through Vodou Not Protected by Free Exercise Clause or RFRA

In United States v. Lindor, (ACCA, June 14, 2023), the Army Court of Criminal Appeals rejected appellant's claim that his murder sentence violated his free exercise rights under the 1st Amendment and RFRA.  The case involves a Staff Sergeant who, after multiple attempts, succeeded in murdering his wife through the use of rituals and poisons recommended by a Vodou practitioner in Haiti. The court said in part:

[A]ppellant's actions to summon Vodou rituals ... were consistent with his First Amendment right to freely exercise his religious beliefs.... [T]he record contains no indication that they called for any illegal activity or result.... The stipulation's derogatory references to these Vodou rituals—after all, they were categorized as "aggravation" evidence—violated the First Amendment's free exercise clause. The government, consistent with the Constitution's guarantee of free exercise, "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."...

However, our analysis does not end there,.... [Appellant] waived his objection to evidence of these particular spells in two ways.... First, the military judge directly advised appellant and his counsel that, if he admitted it, he would consider the stipulation of fact to decide whether appellant was guilty, and, if so, an appropriate sentence; appellant and his counsel agreed. Second, the military judge specifically asked appellant's counsel whether he had any objections to the stipulation; counsel responded, "No, Your Honor."...

Turning to appellant's violence toward RL, we view this as substantially different from the rituals about AD and government officials. We have searched for, but cannot find, any authority to support appellant's tacit argument that the First Amendment's "free exercise" clause can broadly shield one from government action to describe, prosecute, and punish conduct that unlawfully endangers another person's life...

Put plainly, we decline to characterize appellant's violent misconduct toward RL as the free exercise of religious belief.... [A]ctivities that harm others are not protected by the free exercise clause. To characterize appellant's chosen techniques to plan, express, and actuate his intent to murder RL as the free exercise of his religious beliefs would expropriate the free exercise clause of any principled, reasonable meaning. The United States Constitution's framers and the various ratifying conventions plainly and deliberately did not contemplate that one could seek protection in the clause for an act that violated another's right to be free from malicious violence.