Key point 3-08.10. The clergy-penitent privilege does not prevent clergy from disclosing confidential communications to the police. Rather, it prevents clergy from disclosing the content of privileged communications in court. Clergy who choose to inform the police about information shared with them in confidence are providing no more than a “tip.” The police will need to confirm the information through their own investigation, since the minister will be prevented by the privilege from disclosing the information in court.
Clergy sometimes feel morally obligated to inform the police about a confession of criminal activity made to them in confidence. They often resist doing so, however, out of a desire to honor the confidential nature of the communication. One consideration that may be helpful in resolving this dilemma is the fact that the minister’s disclosure of the information to the civil authorities will constitute little more than an unsubstantiated “tip.” The minister will be prevented by the privilege from disclosing the information in court, and so the authorities will need to confirm the minister’s account through their own investigation. In many cases the identity of the minister is never disclosed.
Example. The body of a woman was found at a church camp. A few weeks later, another woman went to the home of a local pastor and confessed that she had killed her. When the woman left, the pastor called the police and advised them of the confession. Based entirely on this information, the police arrested the woman, obtained a confession from her, and charged her with murder. The woman was later found guilty of second degree murder. The woman appealed her conviction, claiming that her arrest had been unlawful since it was based on the improper and unauthorized disclosure of her privileged communication with the pastor. A state appeals court disagreed, noting simply that “the clergyman-penitent privilege is an evidentiary rule proscribing the revelation of privileged communications at a trial when the privilege is asserted by the protected party. Here, revelation of [the woman’s] confession to the police provided probable cause for her arrest and subsequent prosecution.” In other words, if the woman’s conversation with the pastor was privileged, the legal effect of this would be to prevent the pastor from testifying in court about the conversation. The privilege does not apply in making a decision whether or not the police have probable cause to make an arrest. As a result, the woman’s arrest was lawful, as was her conviction. 155 People v. Ward, 604 N.Y.S.2d 320 (A.D. 3 Dept. 1993).