Pastor, Church & Law

To a Minister

§ 03.07.03

Key point 3-07.03. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Clergy-penitent privilege laws generally limit the privilege to confidential communications made to clergymen, priests, or ministers of the gospel. Communications made to nuns,93 In re Murtha, 279 A.2d 889 (N.J. 1971); Masquat v. Maguire, 638 P.2d 1105 (Okla. 1981) (privilege did not apply since nun was consulted in her capacity as a hospital administrator and “not in her capacity as a `clergyman'”). Contra Eckmann v. Board of Education, 106 F.R.D. 70 (E.D. Mo. 1985).an elder and deacon in the Christian Church,94 Knight v. Lee, 80 Ind. 201 (1881).lay religious counselors,95 State v. Buss, 887 P.2d 920 (Wash. App. 1995) (“nonordained church counselors”); People v. Diercks, 411 N.E.2d 97 (Ill. 1980).“lay ministers,”96 Farner v. Farner, 480 N.E.2d 251 (Ind. App. 1985).unordained, self-proclaimed ministers,97 State v. Hereford, 518 So.2d 515 (La. App. 1987).and a “born-again” police officer who was a former deacon in his church,98 State v. Welch, 448 So.2d 705 (La. App. 1984). See also Banks v. State, 725 So.2d 711 (Miss. 1998).are not privileged because they are not made to a member of the clergy. But communications made to lay religious counselors whose services are necessary because of the number of people requiring counseling,99 In re Verplank, 329 F. Supp. 433 (C.D. Cal. 1971).to ordained elders,100 State v. Glenn, 62 P.3d 921 (Wash. App. 2003) (court concluded that an ordained church elder was a “minister” for purposes of the clergy-penitent privilege).elders in the Presbyterian Church,101 Cimijotti v. Paulsen, 219 F. Supp. 621 (N.D. Iowa 1963), appeal dismissed, 323 F.2d 716 (8th Cir. 1963).and to a pastoral counselor in a nonprofit counseling center not affiliated with a church102 Blough v. Food Lion, Inc., 142 F.R.D. 622 (E.D. Va. 1992).have been deemed privileged.

A federal appeals court ruled that the IRS could not be prevented from inspecting church records on the basis of the clergy-penitent privilege since the term clergyman applies only to natural persons and not to church corporations.103 United States v. Luther, 481 F.2d 429 (9th Cir. 1973) (the court noted that no evidence was presented in favor of extending the privilege to church corporations).

Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, limits the privilege to confidential communications with a “cleric,” and defines this term as “a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the individual consulting the cleric.” Note that so long as a counselee reasonably believes that a person with whom he or she is seeking spiritual advice is a member of the clergy, the privilege applies even if this belief is unfounded. Many state clergy-privilege laws incorporate this rule.

Cases studies

  • An Arizona court ruled that a woman’s confession of a crime, communicated to a volunteer music minister at her church in an email, was not protected by the clergy-penitent privilege since the music minister was not a clergyman as required by the privilege.
  • A Delaware court ruled that confidential statements made to a church deacon were not protected by the clergy-penitent privilege and therefore the deacon could be compelled to testify in court about them. 104 State v. Price, 881 A.2d 1082 (Dela. Superior 2005).
  • A New Jersey court ruled that statements made by a murder suspect to a deacon were not protected from disclosure by the clergy-penitent privilege. 105 State v. Cary, 751 A.2d 620 (N.J. Super. 2000).
  • Key point. Some state clergy-penitent privilege laws contain unusual rules. For example, the Mississippi clergy-penitent privilege specifies that “a clergy member’s secretary, stenographer, or clerk shall not be examined without the consent of the clergy member concerning any fact, the knowledge of which was acquired in such capacity.”106 MISS. RULES OF EVIDENCE RULE 505.Familiarity with your state’s clergy-penitent privilege is essential.

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