Have you ever had a church member ask you to testify in court on their behalf? At some time in your ministry, you will likely receive questions from a congregant requesting your attendance and testimony in their personal legal affairs. These requests can relate to a variety of legal matters. In the ministry context, these most often concern family law-oriented matters—specifically in the areas of divorce and child custody. The purpose of this article is to provide a basic framework as how to respond when a congregant requests your involvement in these court proceedings.
It is important at the outset to explain the difference between a civil family matter and a criminal proceeding. This can sometimes be difficult to distinguish because there may be concurrent criminal and civil matters for the same matter. That is why it is important to call your ministry’s legal counsel to discuss each request that is received so the attorney can assess the request, consider whether it is valid, and help prepare you for a proper response, as your response will be starkly different depending on the case.
This article is not intended to be a substitute for seeking the advice of an attorney—on each matter that you encounter—but it addresses basic guidelines and information pertaining to legal requests you might receive in your particular ministry.
The Police
What do I do if the police contact me to investigate a matter I know about?
When involved in a police investigation, the most important consideration is that you are cooperative and helpful in the investigation. Your role is not to be the investigator, and when the police request information, your job is to be transparent and as helpful as possible.
If the police ask you questions about what a person disclosed to you in confidence—i.e., a counseling session or other similar circumstance—then it is imperative to contact your attorneys immediately to discuss your legal options and whether a confidentiality privilege applies to the conversation. It is extremely important to call your attorney immediately in this situation.
A Congregant
What do I do when a congregant personally requests that I attend a court hearing or a deposition as a witness to testify in their favor?
This is a question that will come up most frequently. The situation here is where you have a family attending your church, and sadly, the couple has decided to divorce, and a custody battle is ongoing. One of the parents will usually request your attendance and support—by way of your testimony or producing records you may have—in a court proceeding or a deposition. A personal request is different than when a subpoena is issued (see below for discussion regarding subpoenas) and should be handled as explained in this section.
The general rule—subject to very few exceptions related to the safety of the affected people—to understand when a personal request is made is that no church staff should voluntarily testify in any family’s legal proceeding.
Kindly explain to the congregant, even if you want to take their side, that the staff does not testify and get involved in legal matters voluntarily. Explain to them that the church has a policy that staff will only testify when subpoenaed and will gladly work with your legal counsel once a subpoena is issued. A subpoena is a document filed with the court that compels your attendance at the hearing—regardless of whether you personally want to attend, see below for further information related to subpoenas.
We encourage all churches to adopt this policy because it will convey that the church does not voluntarily take sides in particular matters. And when there are matters where you would not want to testify, this shifts the burden on the congregant and their attorney to file the proper paperwork to secure a subpoena. If they say they will subpoena you, then it is always best to let them know of any known travel or days you might be unavailable. And it is an excellent idea to let them know that the church’s legal counsel will be in touch with their lawyers to work out the details when that occurs.
Subpoena
I have been subpoenaed to attend a court hearing or a deposition.
Do I have to attend?
What will happen if I don’t attend?
A subpoena is a court order compelling you to appear and testify at a hearing. It makes sense that witness testimony and evidence are imperative to any legal proceeding; thus, a subpoena ensures and compels witnesses to attend to testify or produce records. The consequences are serious if a person ignores a subpoena and does not attend.
For instance, the presiding judge can issue a bench warrant to have the witness brought to the court for the hearing or may impose financial penalties on the individual personally. It is imperative to respond to and handle subpoenas in the proper manner. So, what do you do when the subpoena shows up?
- It is imperative that you contact legal counsel immediately, as there is an extremely short window of time to reschedule the subpoena if your schedule is conflicted. If this happens, your legal counsel will file a motion to quash to subpoena in the case and get this rescheduled. But if this isn’t done immediately, it is very difficult—and unlikely—that the judge will allow you to reschedule. A motion to quash may also be filed to prevent you from testifying at all if there are privilege issues or other qualifying reasons to quash the subpoena.
- You will be very curious as to what types of questions the lawyer is seeking, and your legal counsel will initiate a time to talk to the lawyer that originated the subpoena to figure out the scope of questions so you can be prepared. This will help set you at ease so you can review records, gather records if the subpoena compels you to bring them, and prepare for testifying.
- You will also need to double-check and ensure that the date and time do not change and that you know where to go. Courthouses are confusing, and your attorney can provide the proper guidance to get you where you need to be.
Hearings & Depositions
What is the difference between a live hearing and a deposition?
A live hearing is your appearance in the court proceeding. Just like you have seen on television, the judge, court reporter, bailiff, the parties, and each side’s legal counsel will be present in the courtroom. You will be called to testify, swear to tell the truth, and then begin to answer the questions that the lawyers ask you—see below for basic coaching as it relates to witness preparation.
Before you answer, lawyers may object to the questioning lawyer’s questions or your responses to those questions. When an objection is made, pause while the lawyers argue the objection to the judge. Once the judge rules on the objection, your questioning will continue, or you will be instructed to respond to the lawyer’s question that was asked.
A deposition is not held in a courtroom but is a proceeding where the lawyers ask you questions so they can see what information you know and what records you may have. Depositions usually take place in conference rooms where there is a court reporter, the lawyers, and sometimes a videographer to record the deposition. The purpose of a deposition is to so the lawyers can find out what you know while you are under oath. Your responses may not be admissible in a court proceeding, but you will have to answer the questions asked of you in a deposition. It is imperative that you contact our office so you can have legal representation with you during your deposition.
While you are not always issued a formal subpoena to attend a deposition, you will generally be issued a Notice of Deposition. When you receive these, it is equally important to contact legal counsel so we can determine whether it can be rescheduled or quashed. There may also be what is called a subpoena duces tecum attached to the notice, which is an order to compel you to bring certain documents with you to the deposition or to provide them to the issuing lawyer in advance of the deposition. Again, if you are required to appear at a deposition, it is imperative to contact our office so you can have counsel to defend you during your deposition.
Coaching
What essential coaching should I consider before testifying in a court proceeding or a deposition?
Being subpoenaed or compelled to testify in a court proceeding is a nerve-racking endeavor. It is important to remember that you are being called to provide information that can be life-altering for the families involved in the proceeding. But the good news is that all that is required of you is to tell what you know. Your job is not to win the case but to honestly and clearly convey the information that you know through your interactions with the families at church.
Here are a few simple rules that we will go over before you testify or attend a deposition:
- Tell the truth. The most important counsel we give to clients when testifying in any forum is to tell the truth. The easy part for you is that you are not a party to the case, and there is no direct benefit to you personally for lying. Even if you favor one of the parties and it is in the child’s best interests to reside with a particular parent, you will discredit your otherwise helpful testimony by exaggerating, being evasive, or bending the truth in your answers. Those types of answers are counter-productive and will harm your efficacy, integrity, and credibility as a witness.
- When asked questions, take them at their face value and answer them. The most important skill to have when on the stand or being deposed is to listen very carefully to the question you are being asked. If you do not listen well, you will not respond well and will ramble on and share irrelevant information that may harm the case. Oftentimes, we answer questions with what we think the person is asking us rather than the actual question. If the question has a simple one or two-word answer that can be given, answer the question with one or two simple words. Don’t be afraid of awkward silence. It is the questioning lawyer’s job to keep the flow moving, not yours. Then if the lawyer wants to take a deeper dive into your response, they will ask you questions to elicit that response.
- Tell the truth about what you don’t know. This rule is so important that it is worth mentioning twice. While on the stand, you are providing a service to your community that will help the judge make an ultimate determination that will affect peoples’ lives drastically. Be clear, hold your ground if/when you are challenged, and convey your testimony in a manner that is helpful. If you do not know the answer to a particular question, a simple I do not recall or I don’t know is the most honest response that you can give. Remember, your entire job is to share what you personally know.
Clothing
What should I wear to a court appearance or a deposition?
The general rule of thumb is to wear at least smart casual dress as a witness. Avoid wearing jeans, t-shirts, shorts, and other unprofessional clothing. Your appearance will convey your credibility, and some judges will require your appearance to reflect the decorum of their courtroom.
Conclusion
Subpoenas, depositions, and court appearances are important matters that all have differing legal issues and potential consequences that can affect your church and you personally. As soon as a request comes in, it is imperative to relay that request to your supervisor so you can engage legal counsel for your proper response.
Your involvement in these matters may dictate the future for families placed under your care as a ministry leader, and it is essential to navigate the legalities in a proper way at the outset.
Remember, your job is to simply share what you know. Our job is to be at your side through this process, and we are thankful for the opportunity to help you in this way.
Note—The purpose of this article is not to discuss the legal analysis and summary of the clergy-penitent privilege. Please contact our office directly for an analysis as to whether any communications conveyed to you in a spiritual counsel context may be deemed as privileged.
