Key point 3-07.01. In order for the clergy-penitent privilege to apply there must be a "communication." A communication includes verbal statements, but it also may include nonverbal acts that are intended to transmit ideas. Mere observations generally are not considered to be communications.
The privilege against divulging confidential communications extends only to actual communications between an individual and a clergyman. Communications obviously include verbal statements, but they also can include nonverbal forms of communication. One court ruled that the delivery of a gun to a minister constituted a "privileged communication" that was not admissible in court. A New York City police officer who also served as assistant pastor of a local church was approached one evening (while in civilian clothes on the church grounds) by an elderly man who addressed the minister by name and stated that he had something at home that he wanted to give him. A few minutes later, the individual returned, and was escorted into an office where he handed the minister a plastic bag containing a .38 caliber revolver.
Not wanting to the leave the gun on church premises overnight, the minister flagged a patrol car that was passing by the church, and handed the gun to the officer driving the vehicle. A few months later, the minister was accused of violating several police department regulations in the proper disposition of the gun. The minister claimed that the incident could not give rise to any disciplinary action since it was a "privileged communication" under New York law and therefore could not be used in any legal proceeding. A state appeals court reversed this ruling, and dismissed the charges. The court concluded that the gun had been delivered to the minister in his capacity as a minister, and that the manner in which the gun was delivered constituted a "confidential" nonverbal communication. The court found it significant that the elderly gentleman had gone to the church with the gun rather than to a police facility, and that the minister was wearing civilian clothes. Lewis v. New York City Housing Authority, 542 N.Y.Y.2d 165 (1989). Another court ruled that the act of a murder suspect in displaying a gun to a minister was a "communication." The court reasoned that the word communication is not limited to conversation but includes "any act by which ideas are transmitted from one person to another." Commonwealth v. Zezima, 310 N.E.2d 590 (Mass. 1974).
Acts that are not intended to "transmit ideas" are not deemed communications. Some courts have ruled that a minister's personal impressions of a person's mental capacity are not privileged,  Buuck v. Kruckeberg, 95 N.E.2d 304 (Ind. 1951). Contra Boyles v. Cora, 6 N.W.2d 401 (Iowa 1942). nor are a minister's personal observations of the demeanor or reactions of another. State v. Kurtz, 564 S.W.2d 856 (Mo. 1978). See also State v. Winn, 828 P.2d 879 (Idaho 1992) (pastor could testify regarding the demeanor of a woman who counseled with him and who was later charged with murdering her son); State v. Orfi, 511 N.W.2d 464 (Minn. App. 1994). In a case involving a challenge to the will of an elderly decedent, a minister who testified concerning the speech, hearing, and sight of the decedent was held not to have "waived" the privilege since he only testified concerning personal "observations." He therefore was permitted to claim the privilege with respect to confidential communications he had with the decedent. Snyder v. Poplett, 424 N.E.2d 396 (Ill. App. 1981). And a minister who assumed the custody of a two-month-old child was permitted to testify concerning the child's condition and the conduct of the child's parents, since this testimony related only to observations and not to communications arising out of spiritual counseling. Jones v. Department of Human Resources, 310 S.E.2d 753 (Ga. App. 1983).
There is no reason why communications transmitted by telephone should not be privileged, if they satisfy the conditions specified by state law. What about correspondence? Should a letter to a minister be privileged? One federal court ruled that a letter written by a prisoner to a priest, requesting the priest to get in contact with an FBI agent and have him visit the prisoner, was not privileged. United States v. Wells, 446 F.2d 2 (2nd Cir. 1971). The court observed, "The letter contains no hint that its contents were to be kept secret, or that its purpose was to obtain religious or other counsel, advice, solace, absolution, or ministration. It merely requested assistance by putting [the prisoner] in touch with the agent and explained [his] purpose and plan in asking this." Under the circumstances, the court concluded that the letter was not confidential. However, the court's decision strongly suggests that a letter written to a minister may be privileged if it (1) seeks religious counsel, and (2) indicates on its face that its contents are to be kept secret.
One court ruled that the clergy-penitent privilege covered personal records of a deceased church member that were in the possession of the pastor. State v. Franklin, 226 S.E.2d 896 (S.C. 1976).
- The Tennessee Supreme Court ruled that the clergy-penitent privilege did not prevent a pastor from testifying in a murder trial regarding his observations of the defendant during the several hours he met with him while awaiting trial.  State v. Reid, 213 S.W.3d 792 (Tenn. 2006).
- A federal court in Virginia ruled that the clergy-penitent privilege applied to a pastoral counselor's written notes.  Blough v. Food Lion, Inc., 142 F.R.D. 622 (E.D. Va. 1992). The court concluded that "to compel the production of these documents would render meaningless the clear protection against disclosure of confidential communications to the clergy." It added, "[The counselor's] notes would reveal the substance of [the woman's] confidential communications to [her]."
- A Texas court suggested that letters written to clergy may be protected by the clergy-penitent privilege.  Easley v. State, 837 S.W.2d 854 (Tex. App. 1992). The court observed, "[N]ot every private conversation with or letter to a member of the clergy is privileged. The privilege extends only to communications that are addressed to a clergyman in his professional capacity. The [trial court] found that the [woman's] letters were not written to the pastor in his professional character as a spiritual adviser. There is nothing in either letter than can remotely be characterized as a request for spiritual guidance or consolation. The letters were nothing more than open threats to destroy the pastor's reputation if he did not provide [her] with an alibi, and could as easily have been addressed to any other man with whom [she] had or could claim to have had a "personal relationship."