Confidential and Privileged Communications

In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-07.4. 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 Delaware court ruled that confidential statements made to a church deacon were not protected by the clergy-penitent privilege and therefore the deacon could be compelled to testify in court about them.

A woman (the 'defendant') was charged with various sex offenses involving a minor. At her trial, the prosecutor sought to have a church deacon testify concerning incriminating statements made to him in confidence by the defendant. The defendant objected to this testimony, claiming that it was protected from disclosure by the clergy-penitent privilege.

The Delaware clergy-penitent privilege specifies that 'a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.' It defines a clergyman as 'a minister … or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.'

The court noted that the deacon in this case was 'unquestionably, not a 'minister.' As a result, the defendant had two other options to prove her claim of privilege-first, that the deacon was a 'similar functionary of a religious organization,' or she reasonably believed him to be such. The court rejected both of these arguments.

First, a deacon is not a 'similar functionary' to a minister. It observed, 'Merely an individual's being an important—even critical—functionary in a profession is not identical to his being that particular named professional. A paralegal may not practice law. A nurse, who may well have a more precise working knowledge of a given patient than a physician, is not a physician, and cannot even testify as to injury causation.'

Second, the court rejected the argument that the defendant 'reasonably believed' the deacon to be a 'similar functionary.' She never observed him 'attired in ministerial garb or conducting services' and never heard him say that he was a minister. Further, the court pointed out that the defendant's father was a pastor, and so she 'should be even more aware than the average person that deacons and pastors are hardly one and the same.'

Finally, the court noted that the clergy-penitent privilege applies only to statements made to a minister acting in a professional capacity as a spiritual adviser, and that 'there is little suggestion of that in this case.' It stressed that the deacon thought that the defendant was speaking to him as a 'concerned friend.'

State v. Price, 881 A.2d 1082 (Dela. Superior 2005)

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