• 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. The Clergy-Penitent Privilege

The Florida Supreme Court ruled that incriminating statements made by a murderer to a priest were not protected from disclosure in court by the clergy-penitent privilege. A bank robber shot and killed a police officer while making his getaway. The killer went to a priest a few days later, and asked the priest to perform a “ritual” that would prevent him from being apprehended. The priest informed the police of this conversation, and later received a $100,000 reward that had been offered to anyone providing information identifying the killer. The priest testified at the murder trial, and disclosed the incriminating statements that had been made to him. On appeal, the killer claimed that the court should not have allowed the priest to testify since the conversation was protected by the clergy-penitent privilege. The court noted that the Florida clergy-penitent privilege statute specifies the following:

A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual advisor …. A communication between a member of the clergy and a person is “confidential” if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication. Fla. Stat. § 90.505.

The court concluded that the conversation between the priest and killer was not privileged since it was not confidential as required by the statute. The court noted that the priest’s wife and children, along with the killer’s girlfriend and her children, were present in the room at the time of the conversation concerning the crime. The court concluded that the statute “explicitly defines confidential communications for the purpose of clergy privilege as those communications that are ‘made privately.’ Thus, we find no abuse of discretion in the trial court’s ruling against any claim to clergy communications privilege … because [the killer’s] statement to [the priest] was made in the presence of others.”

Application. In Florida, as in many other states, a conversation between a minister and a counselee is protected by the clergy-penitent privilege only if it is made privately with no third persons present. Some state clergy-penitent privilege statutes extend the privilege to conversations in the presence of a third person who is present “in furtherance of the communication.” Obviously, it is essential for ministers to be familiar with the text and application of their state’s clergy privilege. The clergy privilege statutes of all fifty states are quoted in full in Appendix 2 to the third edition of Richard Hammar’s text, Pastor, Church & Law.Fernandez v. State of Florida, 730 So.2d 277 (Fla. 1999).

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