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 Louisiana Supreme Court ruled that a man's confession to a minister that he had committed a murder was admissible as evidence 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."
Neither defendant attended the church, and the pastor did not know them. When the pastor arrived at the hotel room, the mother told her son to tell him "what happened." The son explained how they had called a cab driver to rob him, and when he reached for a gun they shot and killed him. The nephew said nothing about the crime, and made no confession.
The pastor spoke with both 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 either defendant, 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 their 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 determined 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 their confession in confidence. The prosecutor appealed this ruling. A state appeals court affirmed the trial court's decision, and the case was appealed to the state supreme court.
The supreme court began its ruling by quoting the Louisiana clergy-penitent privilege:
"A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser …. A communication is confidential if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication."
The court noted, based on this language, that the following three conditions must be met for the privilege to apply: First, the person to whom the communication was communicated is a "clergyman." Second, the purpose of the communication was to seek spiritual advice or consolation. Third, the communication was made privately and was 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 since the pastor was a "clergyman," and the defendants spoke with him in order to obtain spiritual counsel. The court acknowledged that the pastor did not know either defendant, and had only spoken to them on this one occasion, but concluded that "the communicant may be a first time communicant if he or she reasonably believes, based upon the communicant's knowledge, that the communication will be held confidential and is motivated by penitential considerations."
The third requirement for the clergy privilege to apply is that the communication was made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. The court concluded that this requirement was not met. It noted that the confession was not made privately since there were four persons in the room. However, it concluded that the woman who called the meeting was a person with a "spiritual connection to the minister," and therefore her presence was "in furtherance of the purpose of the communication."
On the other hand, it ruled that the nephew's presence was not in furtherance of the communication, and so his presence prevented the son's confession from being a confidential communication protected by the clergy-penitent privilege. This was so even though the nephew was a participant in the crime.
The court noted that the clergy-penitent privilege was waived by the defendants. First, when the pastor used his cell phone to call his senior pastor for advice on what to do about the son's confession, the son "waived any expectation in the confidentiality of his confession disclosure by remaining silent during the call and thereby consenting to disclosure of the information." Second, the court ruled that the defendants waived the clergy privilege by informing their mother and aunt about the shooting, thereby causing her to take them to see the pastor.
What this means for churches
This case represents one of the most extended discussions of confidentiality in the context of the clergy-penitent privilege, and for this reason it merits careful study. 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 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. In addition, the court's discussion of waiver is helpful. State v. Gray, 891 So.2d 1260 (La. 2005).