• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in a professional capacity as a spiritual adviser.
• The Kentucky Supreme Court ruled that statements made by a murder suspect to a minister were not protected by the clergy-penitent privilege from disclosure in court. A man approached a farmhouse one night while the father and 2 daughters were away. Only the mother and an 11-year-old son were at home, and the son had gone to bed. The man abducted the woman, raped her, and then killed her with a knife. A subsequent investigation revealed blood under the man’s fingernails and smeared on his pants leg and shoes. He had a fresh scratch on his face and there was a large quantity of blood on the floor and passenger seat of his car. DNA tests showed that the blood on the man’s hands, pants, and shoes matched the victim’s blood, as did the blood in his car. The man was later convicted of murder and rape, and was sentenced to death. On appeal to the state supreme court, the man claimed that the trial court committed reversible error in allowing a minister to testify in violation of the clergy-penitent privilege. The Kentucky clergy-penitent privilege states:
No … ordained minister, priest, rabbi or accredited practitioner of an established church or religious organization [shall] be required to testify in any civil or criminal case or proceedings preliminary thereto, or in any administrative proceeding, concerning any information confidentially communicated to him in his professional capacity under such circumstances that to disclose the information would violate a sacred or moral trust, unless the person making the confidential communication waives such privilege herein provided.
The murderer met with a minister on several occasions following his arrest, at the request of his attorneys. These meetings were intended to prepare the minister for testifying at trial on behalf of the murderer. Specifically, the attorneys intended to have the minister testify concerning a theological opposition to the death penalty, and the “remorse” shown by the murderer. In the course of several meetings, the minister prayed with the murderer; expressed concern over the state of his soul; sought and obtained confessions from him; and urged the murderer to think of the victim’s 3 young children when he expressed “no remorse” over his actions. The minister was called to testify during the trial by the prosecution, and revealed the murderer’s statement to him that the victim was alive and screaming when he raped her. This testimony was crucial to the prosecution’s rape case, since the murderer’s attorneys claimed that the victim was already dead when he raped her. On appeal, the murderer argued that it was wrong for the trial court to permit the minister to testify since the information he shared was protected from disclosure by the clergy-penitent privilege. The state supreme court disagreed. It noted that “[f]or a communication to be covered under the [clergy-penitent] privilege it must be communicated to a member of the clergy when that person is acting as a spiritual advisor and the information is not meant to be transferred to anyone else.” The court added that “communications to a member of the clergy will not be privileged if they are to be relayed to a third party not covered by the privilege.” It pointed out that in this case the minister came in contact with the murderer “in contemplation of testifying at trial,” and that “such a fact alone mitigates against a situation invoking the priest-penitent privilege.” The court also stressed that
there is no testimony at all that the [murderer] used his contacts with the minister to obtain spiritual advice or to discuss his spiritual well-being. [The pastor] testified that his involvement with [the murderer] was for the purpose of preparation by him of a case study in connection with a seminary class which he was then taking …. When asked whether he was told that all his conversations with the [murderer] were confidential, he responded, “not that I can remember.” Due to these facts there was no violation of the priest-penitent privilege in allowing [the pastor] to testify.
In summary, the conversations between the murderer and the pastor were not privileged because (1) the conversations between the minister and the murderer were designed to prepare the minister to testify at trial concerning those communications; and (2) the murderer had not sought out the minister for spiritual counsel. Sanborn v. Commonwealth, 892 S.W.2d 542 (Ky. 1994).
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