Recent Developments in Alabama Regarding Confidential and Privileged Information

In an important decision, an Alabama court ruled that the clergy-penitent privilege does not apply to conversations with a minister in which the counselee communicates a threat to kill or seriously harm another person.

Church Law and Tax1999-11-01

Confidential and Privileged Communications

Key point. The clergy-penitent privilege may not extend to conversations in which a counselee threatens to kill or seriously harm another person, since the counselee has no reasonable expectation that the minister will maintain the confidentiality of such information. The counselee should assume that the minister will feel morally obligated to warn the intended victim.

In an important decision, an Alabama court ruled that the clergy-penitent privilege does not apply to conversations with a minister in which the counselee communicates a threat to kill or seriously harm another person. An adult male (the “defendant”) was convicted of murdering his girlfriend. The defendant appealed his conviction on several grounds, including the fact that the trial court improperly allowed into evidence communications that he insisted were protected by the clergy-penitent privilege. During the trial, the prosecutor asked a pastor to testify regarding certain conversations she had had with the defendant. The pastor testified that the defendant occasionally attended her church, and that he called her on three consecutive nights before the murder. On the first night, the defendant informed the pastor that he was upset because the woman he had been seeing had broken off their relationship. According to the pastor, the defendant was “more agitated” and “very upset” the second night, saying that he knew where his former girlfriend lived and that he would watch her. He also informed the pastor that if his girlfriend did not come back to him, he would kill her. The pastor testified that she tried to dissuade the defendant from carrying out such a plan by telling him that if he killed her he would “bust hell wide open.” Although the pastor tried to get the defendant to tell her his former girlfriend’s name so that she could warn her, he refused. On the third night, the night before the murder, the defendant again told the pastor that he was watching his girlfriend. The pastor again tried to discourage him from committing any violence, telling him that just talking to his former girlfriend would be more productive.

As the pastor began testifying about the defendant’s telephone conversations with her, his defense attorney insisted that she needed to be examined to determine whether her testimony should be excluded on the basis of the clergy-penitent privilege. The trial judge allowed the pastor to testify, but when she began testifying about the second telephone call, the judge allowed the defendant’s attorney to ask her a few questions. The pastor stated that she believed that the defendant did not call her before the murder because she was a pastor, but rather because he was upset and he “just knew that I loved him as a person.” Earlier in the year he had telephoned her because he “got upset over social security things.” She asserted that there was a difference between “talking” and “confidence.” She later testified that “not one time did he say, ‘I am talking to you as a pastor or this is a confidential conversation.'” At the end of these questions, the defendant’s attorney again asked the court to exclude the pastor’s testimony on the basis of the clergy-penitent privilege. The court again refused to do so.

A state appeals court ruled that the defendant’s conversations with the pastor were not protected by the clergy-penitent privilege. It conceded that the defendant had sought out the pastor in her role as a spiritual adviser, and that his statements would appear to be protected by the privilege. However, it carved out an exception in cases like this where a counselee discloses an intent to commit a serious crime. Such conversations are not privileged, the court concluded, because a counselee has no expectation that a minister will maintain the confidentiality of this information:

The confidentiality of the conversations is suspect, not because of the nature of the pastor’s role, but rather because of the nature of the defendant’s disclosure that he intended to kill his former girlfriend if she did not return to him. The pastor, believing that the defendant might carry out his threats, understandably tried to get the defendant to give her his former girlfriend’s name in order to warn her. Although she failed to learn the former girlfriend’s name, she obviously valued protecting the woman’s life over and above keeping the threats confidential.

Unfortunately for clergy placed in such difficult situations, there are no explicit guidelines on how to balance the values of confidentiality and safety to third parties. [The clergy-penitent privilege in Alabama] does not contain any specific provision addressing the confidentiality of threats of violence. However, in defining which communications are confidential, the Advisory Committee’s Notes compare the clergyman privilege and the attorney-client privilege: “The definition of the term [confidential] is consistent with its use in the attorney-client privilege.” Under [Alabama law] communications in which a client seeks the advice of an attorney for aid in the commission or furtherance of a crime are not privileged. Although [the clergy-penitent privilege] does not contain a similar provision covering communications with clergy that indicate an intention to commit a crime, the Advisory Committee’s Notes again draw a parallel with the attorney-client privilege: “Communications to the clergyman in furtherance of a crime or fraud would not qualify as seeking spiritual advice and therefore would not fall within the protection of the privilege.” Therefore, even though the clergyman privilege … does not specifically list exceptions to the general rule, the Advisory Committee clearly intended that the scope of that privilege would be comparable to the scope of the attorney-client privilege.

Because we agree that a privilege should not be used where to do so would allow the commission of future violent crimes, we hold that threats of violence toward third parties that are revealed to clergy are not covered by the “communications to clergyman” privilege and that clergy may testify to those threats in subsequent proceedings. In the present case, the defendant’s statement to the pastor that if his former girlfriend would not come back to him, he would kill her presented the pastor with concern over the safety of another. Although the defendant would not disclose to the pastor his former girlfriend’s name, the defendant had no reasonable expectation that the pastor would keep such a revelation confidential. The policy of preventing violence from occurring strongly outweighs the value of confidentiality. Therefore, the trial court’s admission of the pastor’s testimony regarding the defendant’s threats to kill his former girlfriend was not error.

Application. A number of ministers have had the unpleasant task of being sought out by an individual for counseling who threatens to murder or seriously harm another person. Such cases present ministers with a very difficult choice-honor the confidentiality of the conversation, or disclose the information in order to prevent harm to the other person. This case provides some relief to ministers, in Alabama or in any other state that follows this decision. The court concluded that such conversations are not privileged since they are not confidential. They are not confidential since no rational person would assume that a minister under these circumstances would not disclose the threat to the intended victim. This is an interesting resolution of a serious ethical dilemma that has confronted a number of ministers. Tankersley v. State, 724 So.2d 557 (Ala. App. 1998). [The Clergy-Penitent Privilege ]

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