• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.
• Key point: A minister’s observations of a counselee’s demeanor is not protected by the clergy-penitent privilege.
• Key point: The presence of a third party during an otherwise confidential counseling session between a minister and counselee may prevent the conversation from being privileged.
• A Minnesota court ruled that most statements made by a murder suspect to two ministers at a public hospital were privileged. An unemployed psychologist (the “defendant”) lived with a woman and her 23-month-old son. Late one night, while the infant’s mother was at work, the defendant brought the child into a hospital emergency room. The child was not breathing and exhibited multiple bruises and other evidence of abuse. Hospital personnel revived the child and placed him in intensive care. The hospital chaplain was present in the emergency room that night, and met with the defendant in a hallway. She identified herself as the chaplain, and escorted the defendant to the hospital’s family room where they spoke. The defendant recounted to the chaplain his financial difficulties, and asked about the child. During this conversation, the child’s grandmother entered the room and the three of them remained in the room and conversed for several more minutes. Hospital personnel later called a local Baptist pastor to meet with family members. The pastor was introduced to the defendant, and he asked the defendant if he “wanted to talk.” The two went to a hospital waiting area for several minutes and spoke. The defendant explained to the pastor his financial difficulties and stress, and also explained that he was trying to teach the child to be a “polite, little boy” by withholding food until the child said “thank you.” The defendant also stated that he wanted to be a better father than his own father had been. During this conversation a hospital orderly entered the room briefly to get something to drink, and then left. A few days later the child died. A pathologist concluded that the child had died from abuse and malnutrition. The defendant was convicted of second degree murder. He appealed his conviction on the ground that the chaplain and Baptist pastor had been permitted to testify at his trial in violation of the clergy-penitent privilege. The appeals court upheld the conviction. While it agreed with the defendant that the conversations with the chaplain and pastor were privileged under state law, it concluded that this testimony was not prejudicial to the defendant since the evidence against him was overwhelming even without this testimony.
The court began its opinion by noting that the Minnesota clergy-penitent privilege states that “[a] member of the clergy or other minister of religion shall not … be examined as to any communication made to the … minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the … minister’s professional character, without the consent of the person.” The court observed that the purpose of this privilege “is to allow individuals freedom to unburden themselves by seeking spiritual healing without the threat of incriminating themselves.” It further noted that there are three requirements to raising the privilege: (1) the communicant spoke with a minister; (2) the communicant intended for the conversation to be private; and (3) the communicant was seeking spiritual help. The court concluded that these 3 requirements were met in this case with regard to most of the statements made by the defendant to the chaplain and pastor. First, the chaplain and pastor were both ministers. Second, the defendant’s conversations with both individuals were intended to be confidential:
After [the defendant] met [the chaplain] in the hospital hallway, the two went to a hospital reception room and talked for ten to fifteen minutes. When [the grandmother] arrived, the three of them remained in the room talking together for a while longer. The state argues that this three-way conversation indicates that the original conversation between [the defendant and the chaplain] was not private. We draw an opposite inference. The circumstances leading up to the conversation between [the two] and the fact that they retired to a room away from others, support a reasonable belief that they engaged in a confidential conversation prior to being joined by [the grandmother].
The conversation between [the Baptist pastor and the defendant] took place in the hospital waiting room. The state correctly notes that one person entered to get something to drink and then left. This, without more, however, does not undermine the private character of their conversation.
Third, the defendant was seeking spiritual help when he spoke with the chaplain and pastor. The court noted that “these clergy were called to aid a family in crisis. There was no reason for [the defendant] to speak with them about his life other than that they were religious figures, and he was in need of comfort.” Accordingly, the court concluded that most of the statements made by the defendant to the chaplain and pastor were protected from disclosure in court by the clergy-penitent privilege.
However, the court concluded that conversations between the defendant and chaplain while the grandmother was in the room “fall outside of the privilege” since the defendant “could not have intended confidentiality at that moment.” Further, the court concluded that the chaplain’s testimony in court regarding the defendant’s “general demeanor,” observable by all at the hospital, was not based on confidential information and is unprotected by the privilege.” While most of the conversations between the defendant and the chaplain and pastor were privileged, the court concluded that the defendant was not “prejudiced” by the introduction of this evidence in court since there was ample evidence to convict the defendant even without this evidence. Accordingly, it upheld the defendant’s conviction for second degree murder. State v. Orfi, 511 N.W.2d 464 (Minn. App. 1994). 3G2
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