Will that confession stand up in court if the case ever goes to trial? Or, will the confession be considered “privileged” information the same as if it was told to a priest in a confessional?
The issue is important because so little evidence exists for a crime that was committed in 1979. According to news reports, the police are now trying to learn more about the garbage collections 33 years ago, since Mr. Hernandez claims to have stuffed the little boy’s body in a bag or box and put it out with the trash a few blocks from the site of the alleged crime. But finding any corroborating evidence such as the body or someone who saw Etan talking to Hernandez is still a long shot.
The problem for the district attorney, defense lawyers point out, is the issue of whether or not Hernandez is mentally competent. Hernandez is expected to undergo extensive psychological examination to make that determination. “It is important not to rush to judgment about whoever did this,” says Annemarie McAvoy, a former federal prosecutor and an adjunct professor at Fordham Law School in New York. “Maybe in his twisted mind he has convinced himself he is responsible, or it could be some kind of dream world he is in – he may not have even seen him that morning.”
If the district attorney does decide to find people who were part of the prayer group, it is likely they would have to testify and could not claim his statement was made in confidentiality. “A prayer service is not a confession,” says Ms. McAvoy, who also has her own legal consulting business.
The distinction is important because most states have laws giving priests and penitents confidentiality privileges. “Priests do not have to go to court or testify about confessions,” she says. “Most priests are hesitant about talking about anything said in a confessional.”
In fact, many ministers say that confessions put them in a difficult position. For example, some church insurance policies require ministers to report certain crimes. Hardly any state exempts clergy from reporting a confession about child abuse.
“When someone comes and says they want to confess, I tell them right upfront, I am mandated to turn in crimes,” says the Rev. Jim Barnes, national minister of the Evangelical Association of Reformed and Congregational Christian Churches in St. Louis.
Even if it’s not mandated by law, some clergy say they feel a sense of duty to report confessed crimes to law enforcement. “I would tell a person upfront, you have told me something I cannot hold in confidence,” says Rev. Bob Crilley of the First Presbyterian Church in Grapevine, Texas. “I want to be as transparent as possible.”
In Hernandez’s case, it appears that about 50 people who were in the prayer group did not report his confession to the police. (His sister has told reporters she did tell the Camden police, but the police say they have no record of the conversation.) While there may be a moral obligation to report a crime, there is no obligation to do so, says McAvoy, pointing out that the person hearing such a statement may not even believe the person saying it.
“You will not be prosecuted for not going,” she says. “But, if you are helping someone evade the police you can be prosecuted.”