• 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 Clergy’Penitent Privilege
* An Indiana court ruled that a confession made by a criminal defendant to a police chaplain was not protected by the clergy-penitent privilege, and therefore could be introduced into evidence at trial, since the defendant had “waived” the privilege. A woman (Amy) discovered that her 7-month-old son had died in his crib. An autopsy indicated that the infant had died from Sudden Infant Death Syndrome (SIDS). Shortly after the infant’s funeral, however, the Amy’s husband informed her that he had killed the child by wrapping his head in plastic wrap and suffocating him. Ron then went to the sheriff’s office and told several detectives that he had killed the child. He explained that he killed the child as an act of “revenge” against Amy for refusing to return from a vacation to attend his father’s funeral. Ron was formally charged with the murder. He gave two taped statements to the police admitting that he had killed his son. Ron also met with a police chaplain. Prior to their conversations, the chaplain informed Ron that any statements made to him would not be confidential and further stated that he would recount their conversation to the detectives. Despite this warning, Ron admitted to the chaplain that he had killed his son by wrapping cellophane or plastic wrap around his head and suffocating him. Ron was later found guilty of murder and sentenced to prison. He appealed his conviction on several grounds, including the fact that his confession to the chaplain was introduced as evidence in his trial in violation of the clergy-penitent privilege. This privilege, in Indiana, provides that,
The following persons shall not be required to testify regarding the following communications … clergymen, as to the following confessions, admissions, or confidential communications: (A) Confessions or admissions made to a clergyman in the course of discipline enjoined by the clergyman’s church. (B) A confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor.
An appeals court concluded that Ron’s confession to the police chaplain were not privileged. It observed, “Here [the chaplain] spoke with Ron at his house the morning that [the death] was discovered and at the jail on the day that he confessed to the killing. Although Ron objected to the admission of his statements made to [the chaplain] at the house, he did not object to statements made at the jail. Thus, the issue is waived.” But, even if Ron had not waived the privilege by confessing to detectives at the police station, “the statements were not confidential communications under the privilege statute because [the chaplain] expressly told Ron on both occasions that anything he told him was not confidential. Moreover, he explained to Ron that anything he said to him would be shared with the police. As a result, the trial court did not err in permitting [the chaplain] to testify.” Shanabarger v. State, 798 N.E.2d 210 (Ind. App. 2003).
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