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Pastor, Church & Law

written by Richard R. Hammar, J.D., LL.M., CPA

Who May Assert the Privilege

Volume 1 . Chapter 3 . § 3-08.3
Key point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

In most states, both the person who made the communication and the minister to whom it was made may claim the privilege. Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, specifies that "[t]he privilege under this rule may be claimed by an individual or the individual's guardian or conservator, or the individual's personal representative if the individual is deceased. The individual who was the cleric at the time of the communication ...

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