• Key point. In order for statements to be protected by the “clergy—penitent” privilege, they must be made to a minister acting in the course of professional duties. Statements made to a person who is not minister will not be protected by the privilege-even if he or she is acting as a spiritual adviser.

* The Illinois Supreme Court ruled that statements made by a murder suspect to his brother were not protected from disclosure in court by the clergy—penitent privilege since the brother was not a recognized minister. A murderer (the defendant) shot and killed two persons. The defendant was convicted of capital murder and was sentenced to death. He appealed his conviction on the basis of his brother’s testimony, which he claimed should never have been allowed because it was protected by the clergy—penitent privilege. The brother testified that three days following the killings, he paid an unplanned visit to the defendant’s home. He “grabbed him” and asked if he had been “involved” in the crime. According to the brother, the defendant answered “yes.” When asked why he did it, the defendant responded that one of the victims was a drug dealer who owed him money. The defendant claimed that his conversation with his brother was protected by the clergy—penitent privilege, and should never have been disclosed in court. The state supreme court disagreed. It quoted the Illinois clergy—penitent privilege:

A clergyman or practitioner in any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or by the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character of as such spiritual advisor.

The court acknowledged that the brother became a minister of the “Church of the Second Coming” while serving in the United States Army in Germany. However, the court noted that “there was no ordination procedure in this nondenominational church” and that “one became a minister by receiving one’s call from God and by being confirmed by the pastor.” When the brother returned to the United States, he became a police officer and began attending a Baptist church because there were no “Church of the Second Coming” congregation.

The defendant frequently turned to his brother for spiritual advice. When asked whether his conversation with the defendant about the killings was “spiritual advice,” the brother responded that “most of it was about his relationship with God. That was my main concern was him getting right with God.”

The supreme court accepted the trial court’s conclusion that the conversation between the defendant and his brother was not privileged, and therefore it was not improper for it to be disclosed to the jury. It based this decision on two grounds. First, the brother “grabbed” the defendant when questioning him about the killings. As a result, it was not possible to say that the defendant’s statements were made to his brother in his professional capacity as a spiritual advisor. Second, the brother had testified before a grand jury concerning the defendant’s statements without any reference to the fact that he was a minister or that he was acting as a minister during the conversation.

Application. This case illustrates that not every statement made to a spiritual advisor will be protected from disclosure in court by the clergy—penitent privilege. In most states, the statement must be made to a minister acting in a professional capacity as a spiritual advisor. In this case, the court conceded that the brother could be viewed as a minister. But it ruled that the defendant was not confiding in his brother as a spiritual advisor. This conclusion was based on the circumstances of the conversation (the brother “grabbed” the defendant when questioning him), and the fact that the brother testified before a grand jury without asserting the privilege. People v. McNeal, 677 N.E.2d 841 (Ill. 1997). [ The Clergy-Penitent Privilege ]

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