There are two components to your question: are elders “pastors” for purposes of the clergy-penitent privilege? And, is the privilege negated by the presence of third persons?
Are elders “ministers”?
The clergy-penitent privilege, which is recognized in every state, provides that clergy cannot be compelled to testify in a judicial proceeding concerning statements made to them in confidence while acting as a spiritual advisor.
Clergy-penitent privilege laws generally limit the privilege to confidential communications made to clergymen, priests, or ministers of the gospel. Several courts have ruled that deacons and elders are not “ministers” and so communications with them by persons seeking spiritual counsel are not protected by the clergypenitent privilege.
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. This more expansive definition of “minister” may apply to deacons or elders in some cases. This will not always be the case, however.
To illustrate, one court ruled that confidential statements made to a church deacon were not protected by the clergypenitent privilege, and therefore, the deacon could be compelled to testify in court about them. The court rejected the argument that the counselee “reasonably believed” the deacon to be a minister or “similar functionary.” He never observed the deacon “attired in ministerial garb or conducting services” and never heard him say that he was a minister. Further, the court pointed out that the defendant’s father was a pastor, and so he “should be even more aware than the average person that deacons and pastors are hardly one and the same.”
It is possible that in some faith traditions a deacon or elder would be deemed a “minister” for purposes of the clergy-penitent privilege. This will depend on the governing documents, theology, and practice of a church. But this will not always be the case.
The clergy-penitent privilege only protects confidential communications. State clergy-penitent privilege laws define confidentiality in two ways. First, most state laws have adopted the Uniform Rules of Evidence, which defines confidentiality in the context of the “religious privilege” as “a communication … made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” There are two points to note about this definition. First, the communication must be “private,” and second, it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.” According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.”
A minority of state clergy-penitent privilege laws define confidentiality more narrowly to mean that a communication was made in private in the presence of no other persons besides the minister. This is a very different view of confidentiality than the more expansive view taken by the Uniform Rules of Evidence and a majority of the states. In these states, the presence of elders or deacons in the course of pastoral counseling would likely negate the privilege. This illustrates the importance of ministers being familiar with their state’s clergypenitent privilege.
Richard Hammar’s “50-State Child Abuse Reporting Laws Survey for Clergy and Church Leaders” sets forth the text of the clergy-penitent privilege of each state, and this material should be consulted if a question arises regarding the applicability of the privilege. If there is any doubt, legal counsel should be consulted.