Use of the Clergy-Penitent Privilege

When can the privilege be raised?

Church Law and Tax 1994-05-01 Recent Developments

Confidential and Privileged Communications

Key point: The “clergy-penitent privilege” is a rule of evidence that prohibits the disclosure of privileged communications at trial when the privilege is properly raised.

A New York court ruled that the clergy-penitent privilege could not be used to attack a warrantless arrest. The body of a woman was found at a church camp. A few weeks later, another woman went to the home of a local pastor and confessed that she had killed the deceased. When the woman left, the pastor called the police and advised them of the confession. Based entirely on this information, the police arrested the woman, obtained a confession from her, and charged her with murder. The woman was later found guilty of second degree murder by a jury and sentenced to a term of imprisonment of not less than 22 years. The woman appealed her conviction, claiming that her arrest had been unlawful since it was based on the improper and unauthorized disclosure of her privileged communication with the pastor. A state appeals court disagreed, noting simply that “the clergyman-penitent privilege is an evidentiary rule proscribing the revelation of privileged communications at a trial when the privilege is asserted by the protected party. Here, revelation of [the woman’s] confession to the police provided probable cause for her arrest and subsequent prosecution.” In other words, if the woman’s conversation with the pastor was privileged, the legal effect of this would be to prevent the pastor from testifying in court about the conversation. The privilege does not apply in making a decision whether or not the police have probable cause to make an arrest. As a result, the woman’s arrest was lawful, as was her conviction. People v. Ward, 604 N.Y.S.2d 320 (A.D. 3 Dept. 1993).

See Also: Miscellaneous Considerations

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