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.
Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.
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.
A New York court ruled that the clergy-penitent privilege did not apply to a murder suspect's confession to a detective who also was a church deacon, and therefore the detective could testify about the conversation at the defendant's trial. Two persons were injured and one killed in a shooting outside an apartment building. A few days later an adult male contacted a police detective who was a deacon at the same church that he attended, and asked to meet with him and his brother (the defendant) at a local restaurant. The detective agreed, and drove to the restaurant. As he was parking his car, he was approached by the defendant and his brother, and their aunt. The defendant was crying and the detective asked him what he wanted to talk about. The defendant said that he wanted to talk and that he was under a lot of pressure. The defendant and the detective got into the rear seat of the car, leaving the door open. The aunt got into the front passenger seat, and the defendant's brother stood outside, leaning into the open door.
Inside the car, the defendant repeated that he was under a lot of pressure and said that he did not mean for this to happen. He said he heard a noise or a commotion the night of the shooting and was worried about his brother. He went downstairs and asked if his brother was okay. He heard the shots and "just fired." He said that he was trying to protect his brother. He got rid of the gun afterwards. He said he was not a bad person, that it was an accident, and that he could not eat or sleep. He said that it was on his conscience and that he did not want to go to hell. The defendant said that his deceased mother was looking down on him and asked to go to the church to pray. The detective said that the church was closed and prayed with the defendant inside the car. The prayer was a brief petition for God's assistance and it lasted one or two minutes. After the prayer, the detective suggested that the defendant turn himself in. The defendant said that he would do so if the detective went with him. The detective then drove the defendant and his aunt to the nearest police precinct. The defendant was charged with second degree murder and a firearms offense. The defendant asked the court to bar the detective from testifying about their conversation on the ground that their conversation occurred while the detective was acting in his role as a deacon, and as such it was protected by the clergy-penitent privilege.
The New York clergy privilege states:
Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor.
The court noted that for a communication to fall within this privilege, it must meet four criteria: "(1) it must be confidential; (2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; (3) it must be made for the purpose of seeking spiritual advice or religious counsel; and (4) it must not be waived by the person making the confidential statement. As the person asserting the privilege, the defendant, has the burden of establishing that all four criteria are met." The court concluded that the defendant's conversation with the detective was not privileged according to its four-part test.
(1) confidential
The court concluded that "there was no showing that the statements were confidential as they were made in the presence of both the defendant's aunt and his brother …. Exceptions to this general rule have been made only when the third party is essential to the communication, such as an interpreter, or serving as an agent of the person seeking counsel or the person giving it." The test for whether a third party's presence negates the privilege is "whether, in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential." The court concluded:
Here, the defendant never sought to speak privately with the detective, although he easily could have done so, either by coming alone to the meeting or by having his family members remain outside the car while he spoke to the detective. Nothing in this record suggests that the family members were needed to assist the defendant in communicating with the officer. Therefore, his statements were neither intended to be confidential when made nor actually made in confidence, and are, therefore, not privileged.
(2) made to a minister
The court concluded that the detective's status as a deacon did not make him a minister for purposes of the privilege:
While the statute was drafted to apply to a broad array of clergy of all denominations and faiths, its application is limited to clergy who perform "significant spiritual counseling which may involve disclosure of sensitive matters." Although the detective had the title of deacon, his duties within the church were purely administrative: he was in charge of music, events planning, church maintenance, and some youth activities. He was not trained in counseling, had never been approached by a church member for advice on anything other than minor personal matters, and testified that, as a deacon, it was "not his position" to talk with parishioners about their sins or to give spiritual guidance. Moreover, the church in which the detective was a deacon, had several persons who acted in a counseling and spiritual advisor capacity. These included the Pastor, who ran the church and who ordained or appointed the other church officials, and several ministers whose duties were to preach, to counsel and to witness to people. Therefore, the detective's role as a deacon in this particular church was not that of a clergy person as defined by the statute.
(3) for the purpose of seeking spiritual advice
The court concluded that there was no indication that the defendant was seeking spiritual advice when he met with the detective:
Neither the brother nor the defendant sought to meet inside the church or otherwise indicated to the detective that the defendant was seeking spiritual, rather than practical, advice …. Although the defendant did express that the shooting was on his conscience, that he did not want to go to hell, and that he wanted to pray at the church, he did not say any of these things until after he had already told the detective that he had accidentally shot his friend while trying to protect his brother. By first revealing his problem and only later asking for prayer or some kind of spiritual solace, it is clear that the defendant's original reason for speaking to the detective was not to seek religious advice or spiritual counsel, but to ask a sympathetic member of law enforcement for practical counsel on his situation …. Moreover, because the defendant and his family members had attended or belonged to the church and because his aunt held an office within the church, the defendant was fully aware of the roles of the different church officials and also fully aware of the detective's dual roles both within the church and as a detective. Therefore he knew when he confessed to the shooting that he was not speaking to a member of the clergy at this church who would ordinarily give spiritual guidance or counseling.
(4) waiver
The court noted that waiver of a privilege occurs "when the person making the otherwise privileged statement reveals to a third party both the statement's contents and the fact that it was made to the clergy member." By speaking in front of his aunt and brother, "the defendant effectively waived any claim of privilege."
What This Means For Churches:
There are two noteworthy aspects to this case.
The first aspect is that the court defined the clergy privilege's requirement of confidentiality to mean the absence of any third persons. State clergy-penitent privilege laws define confidentiality in one of two ways. The first definition is the Uniform Rules of Evidence adopted by most states, which defines confidentiality in the context of the "religious privilege" as "a communication … made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." There are two points to note about this definition. First, the communication must be "private," and second, it must not be intended for further disclosure except to "other persons present in furtherance of the purpose of the communication." According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is "in furtherance of the purpose of the privilege."
The second definition is to define, as a minority of state clergy-penitent laws have, confidentiality more narrowly to mean that a communication was made in private in the presence of no other persons besides the minister. This is a very different view of confidentiality than the more expansive view taken by the Uniform Rules of Evidence and a majority of the states.
The New York clergy privilege is not based on the Uniform Rules of Evidence, and does not specifically preclude the presence of third parties. Nevertheless, the court defined "confidential" to mean an absence of third persons, noting that the test for whether a third party's presence negates the privilege is "whether, in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential."
The takeaway point here is that ministers need to understand that the presence of a third person in the course of providing spiritual counsel to a counselee can negate the privilege. This is so under the Uniform Rules of Evidence if the third person's presence is not "in furtherance of the privilege." But it is also the case in states in which the clergy privilege law is construed to mean the absence of third persons.
The second noteworthy aspect of this case is that the court concluded that in deciding if the defendant's confession to the detective was made in the course of seeking spiritual counsel, the key consideration is why the conversation started rather than how it ended. The court was convinced that the defendant's initial purpose in speaking with the detective had nothing to do with seeking spiritual advice, and therefore the conversation was not privileged, even though at some point later in the conversation the defendant may have sought such advice. People v. Harris, 934 N.Y.S.2d 639 (N.Y. Sup. 2011).