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.
An Indiana appeals court affirmed a trial court’s conviction of a defendant for the murder of his wife; the appeals court rejected the defendant’s claim that his conviction had to be reversed because the trial court permitted a pastor to testify regarding an incriminating statement the defendant had made to him.
No reason to believe “the defendant expected any confidentiality”
Following a jury trial, a defendant was convicted of murdering his wife and sentenced to a prison term of 75 years. The jury rejected the defendant’s claim that he shot his wife in self-defense because she was attacking him with a large kitchen knife.
The court allowed the defendant’s pastor to testify about a conversation he had with the defendant while he was in prison awaiting trial. During that conversation, the defendant stated that he had attempted to corroborate his story by “planting” a knife at the scene of the incident.
On appeal, the defendant argued that the pastor’s testimony regarding the defendant’s incriminating statement should not have been allowed as evidence at trial because it was protected from disclosure by the clergy-penitent privilege. The appeals court began its opinion by quoting the Indiana clergy privilege:
Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications . . . (3) Clergymen, as to the following confessions, admissions, or confidential communications. . . . A confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor. Indiana Code section 34-46-3-1.
The defendant argued that the incriminating statement he made to the pastor was privileged because it was a “confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor.” The court noted that the incriminating statement was made during a meeting in the defendant’s prison cell that was called by the pastor in order to provide the defendant with a letter suspending his church membership. The court concluded:
We find nothing in this conversation between the pastor and defendant that . . . indicates that the defendant expected any confidentiality on the pastor’s part or that the defendant was seeking spiritual advice or counseling from the pastor in the pastor’s professional character. Furthermore, the pastor testified that confession was not part of [his church’s] discipline; the church recognized the need for discretion but not confidentiality; and if a member of the church reported a crime to him, he believed it was his responsibility to report the crime to the authorities. Based on the foregoing, we find that the incriminating statement the defendant made to his pastor was not protected under [the clergy privilege]. Thus, the trial court did not abuse its discretion when it allowed the pastor to testify over defendant’s objection.
What this means for churches
This ruling demonstrates that the availability of the clergy-penitent privilege will depend on whether the minister was being sought out in a professional capacity as a spiritual adviser. 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: “Are you seeking me out in my professional capacity as a spiritual adviser, 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 relevant if not compelling evidence in demonstrating that the conversation was privileged despite the presence of conflicting or ambiguous evidence.
For additional guidance on this issue, see the “What this means for churches” section in “Pastor Allowed to Testify at a Man’s Sexual Abuse Trial.”
Elliott v. State, 152 N.E.3d 27 (Ind. App. 2020).