Conversations between the clergy and inmates are protected by clergy-penitent privilege because it prohibits the judiciary from inquiring into such communication. However, the District Attorney saw a loophole in the law that forbids inquiry into the matter but says nothing about recordings without the communicators' knowledge. The District Attorney's argument that prisons are government facilities and that Suspect Small should not expect privacy is a blatant disregard that the constitution protects Small, a convict or not. Further, the District Attorney violated the priest's rights by invading his privacy. By doing so, she severed the trust and understanding between the church and the justice system, as explained below.
The request for the tape to be presented to the court is a violation of Small's right to free exercise of religion under the First Amendment. If the court were to agree to this request, inmates would not feel free to be honest and vulnerable with their religious leaders. The recording of Small's conversation with the priest intrudes on their Fourth Amendment rights, which protect them from unreasonable searches and seizures. Although it may not seem so, the recording is a form of confiscation of their private conversation. The act of recording and intent to use the tape's content is a violation of the Religious Freedom Restoration Act of 1993, which, like the First Amendment, forbids any department of the government from burdening anyone’s exercises of religion. Finally, the District Attorney violated Title I of the Electronic Communications Privacy Act of 1986. The Title, commonly referred to as the Wiretapping Act, prohibits the unwarranted interception of anyone's communication, whether oral, wired, or electric.
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In conclusion, the District Attorney crossed a legal and personal line by invading the priest's and Small's privacy to that extent. She added insult to the wound by asking that the tape recording be presented to the court.
