• Key pointThe Clergy-Penitent Privilege 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 pointThe Clergy-Penitent Privilege 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.
A Texas court, applying California law, ruled that the clergy-penitent privilege did not apply to a conversation between a murder suspect and a minister because the minister's church did not have a tenet or practice requiring confidential communications with ministers to be kept secret. A man ("Gary") and his girlfriend traveled from California to Texas hoping to find work. After they arrived in Texas, the couple stayed in a hotel. During this time, Gary met another man ("Stacy") at a bar. The two men struck up a friendship and, one week later, Stacy invited Gary and his girlfriend to stay at his apartment. They accepted his invitation and moved to his apartment. A few days later a neighbor went to check on Stacy because he had not reported to work for several days. The neighbor found Stacy's body covered by a blanket on the kitchen floor. When officers responded to the scene, they discovered Stacy with his skull shattered from, as the autopsy would later reveal, 13 blows to the head. Bloodstains were found throughout the kitchen, down the hallway, in the bathroom, and in the bedroom. Police later arrested Gary and his girlfriend, whom he had since married. The two were taken separately to a local police station where Gary gave a statement to police admitting that he killed Stacy but insisting that Stacy was attempting to rape his girlfriend and that the killing was done in her defense. Gary stated that after Stacy was dead, he and his girlfriend packed their belongings and left the scene. The couple, driving her car and Stacy's truck, returned to California. Gary was charged with murder. During the trial his wife testified that Gary's version of the story was false. She testified that Gary had attacked Stacy without provocation. When she was impeached with prior inconsistent statements about the attempted rape, she explained that it was a story that she and Gary had made up.