Clergy-Penitent Privilege and Observations

Key point 3-07.1. In order for the clergy-penitent privilege to apply there must be a "communication." A communication includes verbal statements, but it also may include nonverbal acts that are intended to transmit ideas. Mere observations generally are not considered to be communications.

The Tennessee Supreme Court ruled that the clergy-penitent privilege did not prevent a pastor from testifying in a murder trial regarding his observations of the defendant during the several hours he met with him while awaiting trial.

An adult male (the "defendant") was convicted of three counts of premeditated murder for killing three restaurant employees, execution style. A jury sentenced him to death. While the defendant was in prison awaiting trial he became acquainted with a pastor who participated in a volunteer prison ministry.

The pastor spent more than 75 hours talking with the ...