• Key point. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.
The Mississippi Supreme Court ruled that a communication made by a prison inmate to a deacon was not protected by the clergy-penitent privilege. A murder suspect (the “defendant”) was incarcerated in a county jail while awaiting trial. A church deacon regularly visited the jail, sometimes with his pastor, to provide spiritual assistance to the inmates. On one occasion, the deacon was meeting with several inmates and discussing their Christian duty to forgive in order to be forgiven. The defendant was listening to this discussion, and at one point asked the deacon to come and speak with him. He asked the deacon if one had to forgive someone who killed their mother or father. The deacon replied that one could not refuse to forgive another for anything and still claim to serve God. At the close of their conversation, the defendant shook the deacon’s hand, and said “you have got to forgive all.” The deacon later testified in the defendant’s murder trial, and repeated their conversation. The defendant insisted that the conversation was protected by the clergy-penitent privilege, and should not have been admitted. Rule 505 of the Mississippi Rules of Evidence sets forth the clergy-penitent privilege for that state. It specifies that “a person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.” The rule defines a “clergyman” as “a minister, priest, rabbi or other similar functionary of a church, religious organization, or religious denomination.”
The court concluded:
[A deacon] is not a clergyman within the plain meaning of the definition of Rule 505, which states that “a clergyman is a minister, priest, rabbi or other similar functionary of a church, religious organization, or religious denomination …. [The deacon] testified quite clearly that he was not a minister and did not purport to be one, even though he did discuss spiritual issues in the abstract with people as part of the exercise of his faith. He also testified that anyone from his church, not just deacons, could go and provide the same type of consolation to inmates. He expressly stated that he did not discuss personal problems with the inmates as part of his spiritual tutoring. Thus, we conclude that [the deacon] was not acting in the role of minister within the plain meaning of the rule.
Application. It is common for nonminister church volunteers to provide spiritual counseling and support to inmates in local jails. This case illustrates the principle, recognized in most if not all states, that communications must be made to a minister in order to be protected by the clergy-penitent privilege. Some states define the term “minister” to include a person who is thought to be a minister by a counselee. But this was not the case here, since the Mississippi clergy-penitent privilege does not contain such an exception, and even if it did, the defendant clearly knew that the deacon was not a minister. Banks v. State, 725 So.2d 711 (Miss. 1998). [The Clergy-Penitent Privilege ]
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