• 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 3-08.02. The clergy-penitent privilege may apply to communications made to a minister in the course of marriage counseling, even when both spouses are present.
The Clergy-Penitent Privilege

* The Louisiana Supreme Court ruled that a man’s confession to a minister that he had committed a murder was admissible at trial because it was not protected by the clergy-penitent privilege. An associate pastor was contacted by cell phone on a Saturday evening by a female member of the congregation who asked him to meet her and her son and nephew (the defendants) in a hotel room. When the pastor asked the woman about the purpose of the meeting, she replied that she wanted him to counsel the defendants “about a matter” and “lead them to Christ.” The defendants did not attend the church, and the pastor did not know them. When the pastor arrived at the hotel room, the mother told the defendants to tell him “what happened.” One of the defendants explained how he had called a cab driver to rob him, and when he reached for a gun he shot and killed him.

The pastor spoke with the defendants about their lifestyle and the outcome of their way of living, and prayed with them. After being told about the shooting, the pastor did not know what to do. He called his senior pastor and was told to report the incident to the police. However, he did not tell the mother or the defendants that the pastor had instructed him to inform the police, or that he intended to do so. When he left the hotel, the pastor called the police as he had been instructed. The defendants were later charged with murder, and the prosecution attempted to have the pastor testify about the confession. The defendants’ attorney objected, claiming that the confession was protected by the clergy-penitent privilege and was therefore not admissible in evidence.

A trial court ruled that the confession was privileged and refused to allow the pastor to testify. It conceded that there were four people in the room, that the defendants did not know the pastor, and that the pastor made a phone call to his senior pastor from the hotel room following the confession. However, it based its decision on the fact that the defendants claimed that they had sought out the pastor primarily for spiritual guidance, and it was their expectation that the pastor would keep the confession in confidence. The prosecutor appealed this ruling.

The state supreme court began its ruling by noting that there are three legal requirements for the clergy-penitent privilege to arise under Louisiana law. First, the person to whom the communication is addressed is a “clergyman.” Second, the purpose of the communication is to seek spiritual advice or consolation. Third, the communication is made privately and is “not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” The court conceded that the first two requirements were met. But, it concluded that the third requirement was not met, and so the confession was not privileged and was admissible in court. The supreme court noted that there were two other persons present in the hotel room when the defendant made his confession-his mother, and his cousin (the second defendant). The court concluded that the mother’s presence was “in furtherance of the purpose of the communication” and so her presence did not negate the privilege. However, the same could not be said for the presence of the second defendant. The court observed, “He did not say a word and did not seek spiritual guidance. Furthermore, the fact that he was an alleged participant in the act confessed by [his cousin] does not cause this communication to be considered private. His presence was not in furtherance of the purpose of the communication.”

Further, the court ruled that there were “at least two instances which indicate that either the defendant waived the privilege or did not have any expectation of privacy in his statement to the pastor.” First, when the pastor called the senior pastor for advice on what he should do about the information imparted by the defendant, the defendant “effectively waived any expectation in the confidentiality of his confession by remaining silent during the call and thereby consenting to disclosure of the information.” Second, the privilege was waived because one of the defendants told the mother that they had shot the cab driver, thereby prompting her to take them to see the pastor.

Application. Persons who seek out a pastor for spiritual guidance may negate the clergy-penitent privilege if one or more persons accompany them. Many states limit the clergy-penitent privilege to statements made “in confidence” to a minister acting in a professional capacity as a spiritual advisor, and many define “in confidence” to include statements made to a minister in the presence of other persons who are present in furtherance of the purpose of the communication. These terms are often difficult to apply to particular situations, and the court’s analysis in this case provides much-needed clarification. The mother’s presence was deemed to be “in furtherance” of the communication, but the cousin’s presence was not. State v. Gray, 891 So.2d 1260 (La. 2005).

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