Key point 3-07.2. In order for the clergy-penitent privilege to apply, there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.
Key point 3-07.5. In some states, the clergy-penitent privilege only applies to communications made to a minister in the course of "discipline." While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.
An Illinois court ruled that incriminating statements made to a pastor by a murder defendant's former spouse were properly allowed in evidence by a trial judge because they were not made in confidence, and therefore, the clergy privilege did not apply. In 2009, the State of Illinois charged a defendant with the first degree murder of his third ex-wife (Kathleen) who had been found dead in a bathtub in her home. Because the defendant was a police officer in the same town, a separate, independent agency, the Illinois State Police, was called in to investigate the death. A pathologist performed an autopsy and concluded that Kathleen had drowned. An inquest was later held, and a coroner's jury found that the death was accidental. No criminal charges were filed.
A few years later, the defendant's fourth wife disappeared. At the time of the disappearance, the couple had been discussing a divorce. Following the disappearance, Kathleen's body was exhumed and two additional autopsies were conducted. Both pathologists separately concluded that the death was a homicide.