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 3-07.4. 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 federal court in California ruled that the clergy-penitent privilege did not apply to a criminal defendant’s conversation with a church elder since the presence of a second elder in the room negated the essential requirement of confidentiality and the purpose of the conversation was more in the nature of marital than spiritual counseling. A woman contacted her local police department because she suspected that her husband’s private computer contained child pornography. Six months earlier she walked into their bedroom and her husband was on the computer. She observed several thumbnail photos of “young girls . . . engaged in sexually suggestive poses while wearing bra and panties.” The girls appeared “between the ages of 13–15 years old,” and some “were . . . as young as 10 years of age.” When the wife confronted her husband about the photos, he told her they “had been attached to an email he had received and he was trying to identify the sender.” The husband was “always using his computer and even attached a mirror next to it so he would know if someone was entering the bedroom.” He kept its password protected and did not allow anyone else to use it. A few days before contacting the police, the wife found two pairs of young girls panties concealed in a drawer next to his computer. The husband explained that he had seen “a girl throwing items into a trashcan” and, after she walked away, “he retrieved the items from the dumpster . . . and kept them.” The wife suspected that this behavior had been going on for years. She believed that he “had confessed his activities to two of the elders at their church in an attempt to keep her from moving out of their residence.” The elders “would not elaborate on the conversation other than to say the information he disclosed ‘was horrible.’” The wife turned over her husband’s computer to the police, and they booked it into evidence. The police obtained statements from the two elders who had met with the husband. Based on the information from the wife and elders, a judge issued a warrant to search the computer. As a result of the search, police recovered thousands of pornographic images of “young children and teenage girls,” in addition to over 200 videos. The police also recovered video of the husband molesting a 10-year-old girl. Based on this evidence, the police requested, and the trial court granted, a search warrant for the husband’s vehicle, home, and camera. The husband was convicted of one count of a lewd act on a child and one count of possession of child pornography. The trial court sentenced him to a prison term of six years. The husband sought habeas corpus relief in a federal district court in California. The husband claimed that the police had violated his right to “due process” by securing a search warrant based on information procured in violation of the clergy-penitent privilege. The court rejected the husband’s request for habeas corpus relief based on the state court’s alleged violation of the clergy-penitent privilege, noting that “to the extent that the husband’s argument is simply that the police and trial court violated the state-created clergy-penitent privilege, his claim fails [since] the United States Supreme Court has long recognized that a mere error of state law is not a denial of due process.” Even assuming California’s clergy-penitent privilege could provide a basis for a due process claim, the husband “has not shown the evidence contained in the search warrant affidavit was privileged.” The court observed: