Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: The clergy-penitent privilege may be “waived” when a counselee shares the same information with another person.

• A New York court ruled that a murderer did not “waive” the clergy-penitent privilege when he disclosed to police a confession he had made to two ministers. A drug dealer murdered his girlfriend in New York, and then took a bus to Miami. A clerk at the bus station in Miami noticed that the murderer was “in deep need” and asked him to come over to the ticket counter. The clerk spoke with the murderer and repeatedly assured him that God loved him. The murderer related to the clerk that he had grown up in the church and had become involved in drugs after leaving the church. He also admitted that he had killed someone. The clerk called his pastor, and a few minutes later the pastor, along with another pastor (a former police detective), arrived at the station. The ministers took the murderer to a church service, and following the service they spoke with him further. The murderer confessed to the ministers that he had murdered a woman in New York, and the ministers urged him to turn himself in to the police. The murderer later contacted the police and confessed to the killing. At the murder trial, the court concluded that the statements the murderer made to the ministers were covered by the clergy-penitent privilege. But, the court also ruled that the murderer had “waived” the privilege by telling the police the same thing he had told the ministers. As a result, the court let the ministers testify regarding the murderer’s confession. The murderer was convicted, and he appealed his conviction in part because the trial court had permitted the ministers to disclose his confession.

The New York Court of Appeals (the highest state court in New York) agreed with the trial court that the statements made by the murderer to the two ministers were protected by the clergy-penitent privilege from disclosure in court, and it reversed the trial court’s ruling that the murderer had waived the privilege. The New York clergy-penitent privilege states: “Unless the person confessing or confiding waives the privilege, a clergyman … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor.” The court noted that the privilege protects clergy and counselees from being forced to testify in court regarding communications made in confidence in the course of spiritual counseling. The court noted that the purpose of the privilege was to recognize “the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance.” The court acknowledged that “not every communication between a cleric and a congregant will justify application of the privilege,” and that “the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.” However, the court concluded that the murderer’s confession to the two ministers in this case was privileged since his contact with the ministers “had been initiated for the purpose of obtaining spiritual guidance and solace” and he “had bared his soul only after attending a church service” and “discussing his standing under religious laws with the two ministers.”

The court ruled that the murderer had not waived the privilege by repeating to the police the same confession he had made to the ministers. However, it based this ruling on a legal technicality. When the murderer made his confession to the police he was speaking without the benefit of legal counsel and accordingly his comments to the police were not admissible in court under the so-called “exclusionary rule”. The court concluded that the prosecutor could not avoid this rule by allowing the ministers to testify regarding the same confession, since “any waiver defendant may have made would be inconsistent with the principles and purposes underlying the exclusionary rule.” In summary, were it not for the improper questioning of the murderer without the presence of an attorney, the court likely would have agreed with the trial court that the murderer “waived” the privilege by disclosing to the police the same information he had disclosed to the ministers. People v. Carmona, 606 N.Y.S.2d 879 (Ct. App. 1993).

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