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.
* The Georgia Supreme Court ruled that the clergy-penitent privilege did not apply to a confession made by a murder suspect to a prison chaplain, since the suspect had waived the privilege when he confessed to a law enforcement officer. A criminal defendant who was in prison awaiting trial for murder told a prison chaplain that he wanted to confess to the crime. The chaplain testified at the defendant’s trial that he told the defendant that “if you want to do a confession, you don’t do it to the chaplains. You do it to the proper authorities.” The defendant asked to speak to a law enforcement officer, and one was immediately sent to the defendant’s cell to take his confession. The officer asked the defendant if he wanted to confess, and the defendant confirmed that he did. The officer then informed the defendant that if he did confess the confession would be forwarded to the detective who was handling his case. With all of this information, the defendant signed a written confession that was drafted by the law enforcement officer, knowing that it would be handed over to law enforcement in the case against him.
The defendant was convicted of murder, in part due to the signed confession. On appeal, the defendant claimed that the written confession should not have been introduced as evidence at his trial because it was protected by the clergy-penitent privilege. The Georgia Supreme Court disagreed: “Under these circumstances, the clergy-parishioner privilege is simply not applicable because the defendant knowingly gave the confession to law enforcement, not privately to the chaplain. The chaplain did not disclose the confession to police. To the contrary, the defendant did so himself. Moreover, even if there were any clergy privilege at play in this case, it was repeatedly waived. The chaplain testified that he sought out law enforcement at the defendant’s request, and both the chaplain and the officer who took the confession first made certain that he understood what he was doing and that he wanted to do it.” Willis v. State, 699 S.E.2d 1 (Ga. 2010)
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