Confidential and Privileged Communications

Church Law and Tax 1989-09-01 Recent Developments Confidential and Privileged Communications Richard R. Hammar, J.D.,

Church Law and Tax 1989-09-01 Recent Developments

Confidential and Privileged Communications

The Supreme Court of Idaho emphasized that the clergy-penitent privilege will not apply to any conversation that is not confidential. During the trial of a suspected rapist, the prosecution called a clergyman to the witness stand to testify regarding comments made to him by the accused three days before the rape. The clergyman testified that immediately following a Sunday morning worship service three days before the rape, the accused had approached him and stated that he “was really hurting and that he couldn’t live without [the rape victim]”—who was his former wife. The clergyman testified that this conversation had occurred while “many people were hanging around as they usually do” following a service, and that “we [the clergyman and the accused] talked with quite a number of people.” The accused claimed that the prosecution erred in allowing the statements made by the accused to the clergyman to be introduced in court, since such statements were the product of the “clergy-penitent” privilege. The court rejected this claim, noting that only confidential communications made to a minister acting in his or her professional capacity as a spiritual advisor are privileged from disclosure in a court of law, and that the statements made by the accused in this case were not privileged. It concluded that “the record supports the trial court’s finding that the conversation had not taken place in private and therefore was not a privileged confidential communication.” This case illustrates the significant principle that statements made to clergy are not privileged unless they are made in confidence. This ordinarily means that the statements are not made in the presence of a third party, and that they are made with the expectation that they will remain secret. Obviously, statements made to a minister immediately following a morning worship service will not be “privileged” if they are made in the presence (and within the hearing distance) of other persons. They simply are not confidential. The result is that neither the minister nor the person making the statement can refuse to testify regarding the conversation in a court of law or during a deposition on the basis of the “clergy-penitent” privilege. State v. Hedger, 768 P.2d 1331 (Ida. 1989).

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