The State asserts that the testimony of Ernie Sanders is admissible. Ernie Sanders was pastor to Richard Eberling and Jack Fisher at the Orient Correctional Institution. That fact does not render every communication between them privileged. Sanders testified at deposition that he learned from Eberling and Fisher that fellow inmate Robert Parks was trying to  beat a confession out of him [Eberling] to the Marilyn Sheppard murder (deposition of Sanders, p. 22). Sanders also observed bruises on Eberling. Sanders learned from Jack Fisher that Parks beat Eberling prior to Eberling\u27s death and that Sam Sheppard admitted to Fisher that he murdered Marilyn Sheppard (deposition of Sanders, p. 28, 32). The substance of conversations unrelated to religious counseling and matters observed by Sanders on a visit are not privileged and Sanders may testify

Cassidy, Marilyn B.

Mason, William D.

English

EngagedScholarship @ Cleveland State University

Cleveland State University
EngagedScholarship@CSU
1995-2002 Court Filings 2000 Trial
2-3-2000
Defendant's Brief in Opposition to Plaintiff 's
Motion to Exclude Testimony of Pastor Ernie
Sanders
William D. Mason
Cuyahoga County Prosecutor
Marilyn B. Cassidy
Cuyahoga County Assistant Prosecutor
How does access to this work benefit you? Let us know!
Follow this and additional works at: https://engagedscholarship.csuohio.edu/
sheppard_court_filings_2000
This Davis v. State of Ohio, Cuyahoga County Common Pleas Case No. CV96-312322 is brought to you for free and open access by the 2000 Trial at
EngagedScholarship@CSU. It has been accepted for inclusion in 1995-2002 Court Filings by an authorized administrator of
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Recommended Citation
Mason, William D. and Cassidy, Marilyn B., "Defendant's Brief in Opposition to Plaintiff 's Motion to Exclude Testimony of Pastor
Ernie Sanders" (2000). 1995-2002 Court Filings. 109.
https://engagedscholarship.csuohio.edu/sheppard_court_filings_2000/109
--
IN THE COURT OF COMMON PLEAS 
CUYAHOGA COUNTY, OHIO 
ALAN DAVIS, Special Administrator 
of the Estate of Samuel H. Sheppard, 
CASE NO. 312322 
Plaintiff, 
v. 
ST ATE OF OHIO, 
Defendant. 
JUDGE SUSTER 
DEFENDANT'S BRIEF IN 
OPPOSITION TO PLAINTIFF'S 
MOTION TO EXCLUDE 
TESTIMONY OF PASTOR 
ERNIE SANDERS 
State of Ohio, by and through counsel, William D. Mason, Cuyahoga County Prosecutor, 
and Assistant Prosecutor Marilyn Cassidy, submits herewith its brief in opposition to plaintiffs 
motion to exclude the testimony of Pastor Ernie Sanders. The grounds for this motion are, first, 
that Plaintiff has no standing to assert privilege, and second, that the privilege applies to 
communications made in the course of religious counseling, all as is set forth in the 
memorandum attached hereto and expressly incorporated herein by reference. 
Respectfully submitted, 
WILLIAM D. MASON, Prosecuting Attorney 
of Cuyahoga County, Ohio 
. C SSIDY (001 6 7) 
Center, Courts To 
1200 0 ario Street 
Cleveland, Ohio 44113 
(216) 443-7785 
ATTORNEYS FOR DEFENDANT 
1 
--
MEMORANDUM IN SUPPORT 
INTRODUCTION 
Plaintiff has moved to exclude the testimony of Pastor Ernie Sanders. Plaintiff 
has no standing to assert the privilege. Moreover, privilege applies to communications 
made to a clergyman in the course of religious counseling. Observations by a clergyman 
and communications outside of religious counseling are not privileged. Pastor Sanders is 
well situated to determine what communications between him and his client(s) are 
privileged, and he has testified in deposition to matters he deems not privileged. 
LAW AND ARGUMENT 
R.C. 2317.02 Privileged Communications and Acts 
The following persons shall not testify in certain respects: 
(C) A member of the clergy, rabbi, priest, or regularly ordained, 
accredited, or licensed minister of an established and legally 
cognizable church, denomination or sect when the member of the 
clergy, rabbi, priest, or minister remains accountable to the 
authority of that church, denomination or sect, concerning a 
confession made, or any information communicated to the member 
of the clergy, rabbi, priest or minister for a religious counseling 
purpose in the member of the clergy's rabbi's priest's, or 
minister's professional character; however, the member of the 
clergy, rabbi, priest or minister may testify by express consent of 
the person making the communication, except when the disclosure 
of the information is in violation of a sacred trust. 
Ohio case law is clear that only communications made by a parishioner to his clergyman in the 
course of religious counseling are privileged. . The privilege has traditionally related to 
2 
,-,.. confessions of a penitent to a clergyman. In re Estate of Soeder (1966), 7 Ohio App. 2d 271. 
-
-
See also Radeck v. Schuckardt (1976), 50 Ohio App.2d 92. Other conversations taking place 
between clergy and parishioners do not necessarily fall within the privilege and are not protected. 
State v. Bennett, 1995 WL 276763, (Ohio App.2 Dist. 1995), unreported. 
In the instant case, Ernie Sanders was pastor to Richard Eberling and Jack Fisher while 
they were at the Orient Correctional Institution. That fact does not render every communication 
between them privileged. Sanders testified at deposition that he learned from Eberling and 
Fisher that fellow inmate Robert Parks was trying to "beat a confession out of him [Eberling] to 
the Marilyn Sheppard murder. Deposition of Sanders page 22. Sanders also observed bruises on 
Eberling. Sanders learned from Jack Fisher that Parks beat Eberling prior to Eberling's death. 
Sanders learned also that Samuel Sheppard admitted to Fisher that he murdered Marilyn 
Sheppard. Deposition of Sanders p. 28, 32. The substance of conversations unrelated to 
religious counseling and matters observed by Sanders on a visit are not privileged and Sanders 
may testify. 
Finally, it is noteworthy that Pastor Sanders declined to testify at deposition regarding 
certain matters, which he considered to be privileged. (Sanders Deposition page 26,40.) 
Sanders, as a clergyman is well situated to determine what matters are of a religious counseling 
nature, and which were not. In the alternative, the court may conduct an evidentiary hearing to 
determine the permissible parameters of Sanders' testimony. 
3 
,.,.... CONCLUSION 
-
-
Pastor Ernie Sanders has already testified at deposition regarding certain facts and 
observations that he learned from visits with Eberling and Fisher and he should be permitted to 
testify at trial. Only Eberling, Fisher, or Sanders would have standing to assert the privilege set 
forth in RC 2317 .02 (C). As a final alternative, the court may conduct an evidentiary hearing to 
determine the existence and the scope of any clergy-client privilege. 
Respectfully submitted, 
WILLIAM D. MASON, Prosecuting Attorney 
of Cuyahoga County, Ohio 
CASSIDY (0014647 
Assistant ros cuting Attorney 
The Justi e nter, Courts Tower 
1200 Ontario Street 
Cleveland, Ohio 44113 
(216) 443-7785 
ATTORNEYS FOR DEFENDANT 
4 
CERTIFICATE OF SERVICE 
A copy of the foregoing Defendant's Brief in Opposition to Plaintiffs Motion to Exclude 
Testimony of P~~~~~ie Sanders was served upon Terry Gilbert and George Carr, attorneys for 
plaintiff, this _LL_ day of January, 2000, via ordinary U.S. mail at 1370 Ontario Street, Suite 
1700, Cleveland, Ohio 44113. 
5 


Defendant\u27s Brief in Opposition to Plaintiff\u27s Motion to Exclude Testimony of Pastor Ernie Sanders

Cleveland-Marshall College of Law

Cleveland State UniversityEngagedScholarship@CSU1995-2002 Court Filings 2000 Trial2-3-2000Defendant's Brief in Opposition to Plaintiff 'sMotion to Exclude Testimony of Pastor ErnieSandersWilliam D. MasonCuyahoga County ProsecutorMarilyn B. CassidyCuyahoga County Assistant ProsecutorHow does access to this work benefit you? Let us know!Follow this and additional works at: https://engagedscholarship.csuohio.edu/sheppard_court_filings_2000This Davis v. State of Ohio, Cuyahoga County Common Pleas Case No. CV96-312322 is brought to you for free and open access by the 2000 Trial atEngagedScholarship@CSU. It has been accepted for inclusion in 1995-2002 Court Filings by an authorized administrator ofEngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.Recommended CitationMason, William D. and Cassidy, Marilyn B., "Defendant's Brief in Opposition to Plaintiff 's Motion to Exclude Testimony of PastorErnie Sanders" (2000). 1995-2002 Court Filings. 109.https://engagedscholarship.csuohio.edu/sheppard_court_filings_2000/109--IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ALAN DAVIS, Special Administrator of the Estate of Samuel H. Sheppard, CASE NO. 312322 Plaintiff, v. ST ATE OF OHIO, Defendant. JUDGE SUSTER DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY OF PASTOR ERNIE SANDERS State of Ohio, by and through counsel, William D. Mason, Cuyahoga County Prosecutor, and Assistant Prosecutor Marilyn Cassidy, submits herewith its brief in opposition to plaintiffs motion to exclude the testimony of Pastor Ernie Sanders. The grounds for this motion are, first, that Plaintiff has no standing to assert privilege, and second, that the privilege applies to communications made in the course of religious counseling, all as is set forth in the memorandum attached hereto and expressly incorporated herein by reference. Respectfully submitted, WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio . C SSIDY (001 6 7) Center, Courts To 1200 0 ario Street Cleveland, Ohio 44113 (216) 443-7785 ATTORNEYS FOR DEFENDANT 1 --MEMORANDUM IN SUPPORT INTRODUCTION Plaintiff has moved to exclude the testimony of Pastor Ernie Sanders. Plaintiff has no standing to assert the privilege. Moreover, privilege applies to communications made to a clergyman in the course of religious counseling. Observations by a clergyman and communications outside of religious counseling are not privileged. Pastor Sanders is well situated to determine what communications between him and his client(s) are privileged, and he has testified in deposition to matters he deems not privileged. LAW AND ARGUMENT R.C. 2317.02 Privileged Communications and Acts The following persons shall not testify in certain respects: (C) A member of the clergy, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination or sect when the member of the clergy, rabbi, priest, or minister remains accountable to the authority of that church, denomination or sect, concerning a confession made, or any information communicated to the member of the clergy, rabbi, priest or minister for a religious counseling purpose in the member of the clergy's rabbi's priest's, or minister's professional character; however, the member of the clergy, rabbi, priest or minister may testify by express consent of the person making the communication, except when the disclosure of the information is in violation of a sacred trust. Ohio case law is clear that only communications made by a parishioner to his clergyman in the course of religious counseling are privileged. . The privilege has traditionally related to 2 ,-,.. confessions of a penitent to a clergyman. In re Estate of Soeder (1966), 7 Ohio App. 2d 271. --See also Radeck v. Schuckardt (1976), 50 Ohio App.2d 92. Other conversations taking place between clergy and parishioners do not necessarily fall within the privilege and are not protected. State v. Bennett, 1995 WL 276763, (Ohio App.2 Dist. 1995), unreported. In the instant case, Ernie Sanders was pastor to Richard Eberling and Jack Fisher while they were at the Orient Correctional Institution. That fact does not render every communication between them privileged. Sanders testified at deposition that he learned from Eberling and Fisher that fellow inmate Robert Parks was trying to "beat a confession out of him [Eberling] to the Marilyn Sheppard murder. Deposition of Sanders page 22. Sanders also observed bruises on Eberling. Sanders learned from Jack Fisher that Parks beat Eberling prior to Eberling's death. Sanders learned also that Samuel Sheppard admitted to Fisher that he murdered Marilyn Sheppard. Deposition of Sanders p. 28, 32. The substance of conversations unrelated to religious counseling and matters observed by Sanders on a visit are not privileged and Sanders may testify. Finally, it is noteworthy that Pastor Sanders declined to testify at deposition regarding certain matters, which he considered to be privileged. (Sanders Deposition page 26,40.) Sanders, as a clergyman is well situated to determine what matters are of a religious counseling nature, and which were not. In the alternative, the court may conduct an evidentiary hearing to determine the permissible parameters of Sanders' testimony. 3 ,.,.... CONCLUSION --Pastor Ernie Sanders has already testified at deposition regarding certain facts and observations that he learned from visits with Eberling and Fisher and he should be permitted to testify at trial. Only Eberling, Fisher, or Sanders would have standing to assert the privilege set forth in RC 2317 .02 (C). As a final alternative, the court may conduct an evidentiary hearing to determine the existence and the scope of any clergy-client privilege. Respectfully submitted, WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County, Ohio CASSIDY (0014647 Assistant ros cuting Attorney The Justi e nter, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7785 ATTORNEYS FOR DEFENDANT 4 CERTIFICATE OF SERVICE A copy of the foregoing Defendant's Brief in Opposition to Plaintiffs Motion to Exclude Testimony of P~~~~~ie Sanders was served upon Terry Gilbert and George Carr, attorneys for plaintiff, this _LL_ day of January, 2000, via ordinary U.S. mail at 1370 Ontario Street, Suite 1700, Cleveland, Ohio 44113. 5 

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Defendant\u27s Brief in Opposition to Plaintiff\u27s Motion to Exclude Testimony of Pastor Ernie Sanders

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