Waiver of the Privilege
Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
The clergy-penitent privilege can be "waived" if a minister or counselee voluntarily discloses a privileged communication to another person. If the privilege is waived it no longer protects communications against compelled disclosure in a court of law or judicial proceeding. To illustrate, one court ruled that a counselee waived any privilege when he disclosed to the police the substance of confidential communications he had made to his minister. Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988). There is some variation among the states regarding a waiver of the privilege. One court observed that the "states are split on the issue of who holds the power to waive the clergyperson-penitent privilege." State v. Szemple, 640 A.2d 817 (N.J. 1994) Most states allow the counselee to waive the privilege, but in some states only the minister can do so. State v. Martin, 959 P.2d 152 (Wash. App. 1998) (only the counselee can waive the privilege under Washington law).
• An Arizona court ruled that a criminal defendant waived the clergy-penitent privilege by sharing incriminating information that he had divulged to his pastor in a confidential counseling session. State v. Baca, 2009 WL 5156236 (Ariz. App. 2009).
• An Indiana court ruled that a confession made by a criminal defendant to a police chaplain was not protected by the clergy-penitent privilege, and therefore could be introduced into evidence at trial, since the defendant had waived the privilege. The court noted that the defendant had waived the privilege by informing the police that he murdered his son. Further, the subsequent conversation with a chaplain was not privileged since the chaplain cautioned him that it was not confidential. Shanabarger v. State, 798 N.E.2d 210 (Ind. App. 2003).
• The New Jersey Supreme Court ruled that a minister was free to waive the clergy-penitent privilege and testify in court regarding a confession made to him by a murderer, even though the murderer did not consent to the disclosure. The court ruled that the minister had the unilateral right to waive the privilege and disclose the confession in court. The court noted that the purpose of the privilege was to protect ministers from being forced to disclose confidential communications in court and "to curb the potential manipulations of a penitent who, through waiver, could compel a clergyperson to reveal communications that were given purposely to mislead." State v. Szemple, 640 A.2d 817 (N.J. 1994).
• A North Carolina court ruled that a minister who served as a volunteer chaplain to a sheriff's department could testify in a murder trial concerning statements made to him by the defendant since the defendant had waived the clergy-penitent privilege. State v. Andrews, 507 S.E.2d 305 (N.C. App. 1998).
One court, citing Roman Catholic and Episcopal clergy, observed that "complex issues" are raised when clergy are bound by an absolute obligation of silence "unwaivable by a penitent." Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988) ("once the penitent has waived the privilege, his penitential need is unserved and the public's evidentiary need disserved by permitting a clergyman to assert the privilege independently").