• 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.

A North Carolina court ruled that a minister who served as a volunteer chaplain to a sheriff’s department could testify in a murder trial concerning statements made to him by the defendant since the defendant had “waived” the clergy-penitent privilege. A 21-year-old woman (the “victim”) was shot through the head with a .357 caliber magnum revolver by her boyfriend (the “defendant”). The victim and her four-year-old daughter were living with the defendant at the time of the shooting. The defendant gave several versions of the incident to police. In one version, he claimed that he and the defendant were struggling over the gun and it went off. In another version, he claimed that he entered the bedroom with the gun in his hand, “ran into something and the gun went off.” The defendant was prosecuted for first degree murder, and a jury found him guilty. The defendant appealed his conviction on several grounds, including the fact that the trial court improperly allowed a minister who served as a volunteer chaplain for the sheriff’s office to testify concerning a conversation he had with the defendant shortly after his arrest. The sheriff’s office paged the minister, who served as pastor of a Pentecostal Holiness church, and asked him to come to the jail to counsel the defendant. The defendant claimed that the conversation he had with the chaplain was protected from disclosure in court by the clergy-penitent privilege. The appeals court disagreed. It noted that under North Carolina law there are two requirements for the clergy-penitent privilege to apply: (1) the defendant must be seeking the counsel and advice of his minister; and (2) the information must be entrusted to the minister as a confidential communication.

The court noted that the sheriff’s office called the minister to talk to the defendant because of the possibility of the defendant being suicidal. It concluded:

Based on the potential conflict of interest because [the minister] worked for the sheriff’s office, the privilege would be applicable to protect defendant. [The minister] as the chaplain for the sheriff’s office, was aware of defendant’s privilege and asked defendant whether [he] could divulge the information to the officers. The defendant talked to [the minister] and agreed afterwards to allow [him] to share the information with the officers.

At trial, defense counsel initially objected to [the minister] being able to testify based on privilege, but withdrew his objection after defendant stated he waived that privilege. The trial court questioned defendant to make sure he understood that he possibly had a privilege. The trial court specifically asked defendant whether he understood that the [minister] was paged by the sheriff’s department to come talk to defendant, which could possibly keep it from being admissible. Defendant said he understood and still wanted to waive his privilege. [The clergy-penitent privilege statute] provides that the [privilege] “shall not apply where communicant in open court waives the privilege conferred.” Therefore, the trial court did not err when it allowed [the minister] to testify.

Application. Many states have clergy-penitent privilege statutes like the North Carolina statute, and allow persons who confide in a minister to waive the privilege. As a result, ministers who counsel with a criminal defendant may be compelled to testify in a criminal prosecution concerning statements made to them by the defendant-if it is determined that the defendant waived the privilege. State v. Andrews, 507 S.E.2d 305 (N.C. App. 1998). The Clergy-Penitent Privilege

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