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Issues that affect ministers and churches
Expectation of Secrecy
Court rules that murderer waived his right to the privilege.

Key point 3-07.2. 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.

A Florida court ruled that a murderer's confession to a minister was not protected by the clergy-penitent privilege and therefore a trial court did not commit reversible error in allowing the minister to testify at the murder trial concerning the confession. The minister testified that he warned the defendant several times that he would not treat anything incriminating as confidential. Having been asked by the defendant to accompany him to the police station for questioning, he testified that he warned the defendant against disclosing anything that "was bad" and that if defendant reported anything that "was bad" the minister would have to tell the police about it. Specifically, the minister said: "Be careful what you are about to say to me, because any information that could be damaging … I cannot promise you that I could keep it, because I will become an accessory to whatever." He added that if the defendant told him something that could get him in trouble with the law, he would have to divulge the information to police. At that point the defendant told the minister that he had killed the victim. The defendant thereupon asked the minister if he could keep the substance of the conversation a secret, but the minister said no. The defendant then told the minister not to bother coming into the police station with him.

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