When to Assert the Privilege
Key point 3-08.04. The clergy-penitent privilege does not excuse ministers from appearing in court or at a deposition.
The clergy-penitent privilege does not excuse ministers (or counselees) from appearing in court. Rather, it excuses them from disclosing a privileged communication in court against their will. The proper time to assert the privilege is in court (or at a deposition) when asked to disclose communications protected by the privilege. Of course, ministers do not technically "object" to such a question. The attorney for one of the parties to the underlying legal action ordinarily will object to the question in order to prevent the minister from disclosing the privileged communication. In some cases no objection is made. In such a case ministers are free to inform the judge that they prefer not to answer the question on the ground that it seeks privileged information.