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 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

An Illinois court ruled that the clergy-penitent privilege could be asserted by a lay practitioner, and that the privilege was not necessarily precluded or waived by the practitioner's disclosure of statements made to him by the penitent in the course of spiritual counseling. An adult male (the "defendant") was charged with violating an order of protection when he allegedly went to the home of his ex-wife and slashed the tires on a car sitting in the home's driveway. At his trial, a witness (Craig) was called to testify regarding incriminating information the defendant shared with him. He attempted to avoid testifying by invoking the clergy-penitent privilege, claiming that, as the defendant's "spiritual advisor," he could not be forced to testify about an incriminating admission the defendant made to him. The defendant also invoked the privilege.