• Key pointThe Clergy-Penitent Privilege In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

• Key pointThe Clergy-Penitent Privilege In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

A New Jersey court ruled that statements made by a murder suspect to a deacon were not protected from disclosure by the clergy-penitent privilege. An adult male (“David”) was involved in a fight outside a restaurant. Later that night he returned to the restaurant and fired several gun shots into the store, striking two bystanders. One of the bystanders was injured, and the other was killed. The following Sunday David attended his church. After attending the morning service, David met privately with the pastor, apparently to seek spiritual guidance regarding the altercation and how he should proceed. After meeting with the pastor, David indicated that he wanted to surrender to the police. At that point the pastor summoned a recently ordained deacon who was a state trooper. The three met in the pastor’s office. The deacon introduced himself as a deacon in the church and also disclosed that he was a state trooper. During this meeting, David began to discuss the altercation, and at that point the deacon reminded him of his right to remain silent. The deacon also had David stand against a wall and searched him for any weapons. David continued to talk about the incident. At some point in the meeting all three men prayed together. When David was finished with his remarks, the deacon called the police and told David that he was no longer free to leave. The police arrived a few minutes later, and arrested David.

The police later asked the deacon for a statement, but a judge ruled that the conversation between David and the deacon was protected by the clergy-penitent privilege. The judge noted that a “deacon of the Baptist faith is ordained,” and cited a handbook for deacons for the proposition that a deacon’s responsibilities “range from handling business affairs of the church and visiting the sick, to conducting services in the absence of the pastor.” This ruling was appealed to a state appeals court, which ruled that the statements to the deacon were not privileged. The New Jersey clergy-penitent privilege statute specifies: “Any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role.” The court noted that based on this language three elements must be present for the privilege to apply; a person’s communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor.

The court noted that it was not clear whether or not a Baptist deacon is a “cleric” for purposes of the clergy-penitent privilege. However, even if deacons are clerics, the statements made to the deacon in this case were not privileged since they were not made to the deacon while acting in a professional character as a spiritual advisor. It observed,

To be privileged, confidential communications must be made to a cleric “in the cleric’s professional character, or as a spiritual advisor in the course of the discipline … of the religious body to which the cleric belongs or … the cleric professes ….” The uncontested evidence, however, reflects a dual role played by [the deacon] in his relationship with David; he acted as both deacon and police officer. [The pastor] did not summon the deacon for help until David had decided he wanted to surrender. The deacon indicated that part of his role in meeting with David was spiritual in nature. Yet, he also testified that he introduced himself to David as both a deacon and state trooper. During their conference, despite praying with David, the deacon reminded David of his right to remain silent and, in fact, at one point, searched David. It is obvious that the deacon acted in both capacities during his meeting with David and understood that he was present to perform the secular function of assisting David’s surrender to the police. Moreover, given the fact that David knew that the deacon was a state trooper and had warned him of his right to remain silent and searched him, it is difficult to comprehend how he could have “reasonably expected” that his communications with the deacon would remain confidential.” Therefore, given the deacon’s dual capacity during David’s confession, David’s communications to him were not made in a deacon’s “professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body ….” The communications were made to the deacon when he was at least partially performing a secular function as a law enforcement official, and are not privileged.

Application. This case is important for two reasons. First, the court suggested that in some cases deacons can be deemed “clergy” for purposes of the clergy-penitent privilege, depending of course on the theology and practice of a particular church. This is a novel ruling. Second, the court concluded that the statements to the deacon were not privileged since he was serving in a “dual capacity” during the conversation, and his status as a police officer superseded his role as a deacon as evidenced by his informing David of his right to remain silent and by his searching David for weapons. This ruling demonstrates that the availability of the privilege will depend on whether or not the “minister” was being sought out in a professional capacity as a spiritual advisor. The answer to this question is often unclear. Clergy can help to ensure the availability of the privilege by asking counselees at some point during a conversation the following question, “Are you seeking me out in my professional capacity as a spiritual advisor, or for some other purpose?” If a counselee responds that he or she sought out the minister as a spiritual advisor, then this will be very relevant evidence in demonstrating that the conversation was privileged despite the presence of conflicting or ambiguous evidence. State v. Cary, 751 A.2d 620 (N.J. Super. 2000).

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