• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.

• Key point: A minister's observations of a counselee's demeanor is not protected by the clergy-penitent privilege.

• Key point: The presence of a third party during an otherwise confidential counseling session between a minister and counselee may prevent the conversation from being privileged.

• A Minnesota court ruled that most statements made by a murder suspect to two ministers at a public hospital were privileged. An unemployed psychologist (the "defendant") lived with a woman and her 23-month-old son. Late one night, while the infant's mother was at work, the defendant brought the child into a hospital emergency room. The child was not breathing and exhibited multiple bruises and other evidence of abuse. Hospital personnel revived the child and placed him in intensive care. The hospital chaplain was present in the emergency room that night, and met with the defendant in a hallway. She identified herself as the chaplain, and escorted the defendant to the hospital's family room where they spoke. The defendant recounted to the chaplain his financial difficulties, and asked about the child. During this conversation, the child's grandmother entered the room and the three of them remained in the room and conversed for several more minutes. Hospital personnel later called a local Baptist pastor to meet with family members. The pastor was introduced to the defendant, and he asked the defendant if he "wanted to talk." The two went to a hospital waiting area for several minutes and spoke. The defendant explained to the pastor his financial difficulties and stress, and also explained that he was trying to teach the child to be a "polite, little boy" by withholding food until the child said "thank you." The defendant also stated that he wanted to be a better father than his own father had been. During this conversation a hospital orderly entered the room briefly to get something to drink, and then left. A few days later the child died. A pathologist concluded that the child had died from abuse and malnutrition. The defendant was convicted of second degree murder. He appealed his conviction on the ground that the chaplain and Baptist pastor had been permitted to testify at his trial in violation of the clergy-penitent privilege. The appeals court upheld the conviction. While it agreed with the defendant that the conversations with the chaplain and pastor were privileged under state law, it concluded that this testimony was not prejudicial to the defendant since the evidence against him was overwhelming even without this testimony.