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.

An Arizona court ruled that a conversation between a minister and a counselee may be covered by the clergy-penitent privilege even if the counselee's wife is present. A woman contacted her pastor and informed him that her husband had confessed to her that he had sexually molested their minor daughter. The pastor met with the couple, and during this meeting the husband again confessed to the molestation. The husband was indicted on several counts of molestation of a child. The state gave notice that it intended to introduce the testimony of the pastor at trial. The husband filed a motion to suppress the testimony of the pastor "as privileged communications between communicant and clergy." The trial court agreed that the conversation with the pastor was privileged, and that it had not been waived by the presence of the wife. The state appealed.