Confidential and Privileged Communications

• Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

The Clergy-Penitent Privilege

* A Georgia court ruled that statements made by a criminal suspect to his father (an ordained minister) were not protected by the clergy-penitent privilege and therefore a trial court properly allowed the father to testify concerning incriminating statements made to him by his son. A man (the "defendant') was prosecuted for several felony offenses arising from an armed home invasion. During the trial, the prosecutor subpoenaed the defendant's father because of statements the defendant had made to him admitting to his involvement in the crimes. The defendant's attorney objected to the father's testimony on the ground that he was an ordained minister, and therefore any statements made to him were protected from disclosure in court by the "clergy-penitent privilege." The trial court overruled the objection, and the father was permitted to testify. He testified that his son made the incriminating statements to him in the jail parking lot, after he had driven his son to jail so that he could turn himself in. The father testified that he voluntarily told the prosecutor of the statements his son made, and that he was not ministering to his son at the time of the statements, and that he did not start ministering to his son until after he was arrested, which was after the defendant had made his incriminating statements. The defendant was convicted and sentenced to prison. He appealed his conviction on several grounds, including the court's alleged error in allowing the father to testify.

A state appeals court concluded that the defendant's statements to his father were not privileged, and therefore the trial court did not err in allowing the father to testify regarding his conversation with his son. The court observed,

Every communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to a clergy person shall be deemed privileged. However, if such communications are not made to profess religious faith, or to seek spiritual comfort or guidance, but rather are conversational statements to a friend or frequent companion the ministerial privilege is not applicable. In this case, the defendant did not testify at the motion hearing and, thus, did not testify that he was professing religious faith, seeking spiritual comfort, or seeking spiritual counseling when he made his statements to his father. Moreover, nothing about the defendant's communications with his father indicates that he was professing his faith, or seeking spiritual comfort or guidance. Rather, insofar as he had decided to turn himself in to the police … he asked his father to accompany him to the police station and talk to the police on his behalf. Thus, in talking with his father, the defendant did not seek comfort or solace of a spiritual nature, but was rather seeking the help of a parent and source of secular strength to accompany him to the police station. Under these circumstances, we find that his statements to his father in the parking lot of the jail were not privileged communications with a clergyman, and the trial court properly [allowed the father to testify]. Parnell v. State, 2003 WL 359895 (Ga. App. 2003).

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