Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

A Florida court ruled that a murderer’s confession to a minister was not protected by the clergy-penitent privilege and therefore a trial court did not commit reversible error in allowing the minister to testify at the murder trial concerning the confession. The minister testified that he warned the defendant several times that he would not treat anything incriminating as confidential. Having been asked by the defendant to accompany him to the police station for questioning, he testified that he warned the defendant against disclosing anything that “was bad” and that if defendant reported anything that “was bad” the minister would have to tell the police about it. Specifically, the minister said: “Be careful what you are about to say to me, because any information that could be damaging … I cannot promise you that I could keep it, because I will become an accessory to whatever.” He added that if the defendant told him something that could get him in trouble with the law, he would have to divulge the information to police. At that point the defendant told the minister that he had killed the victim. The defendant thereupon asked the minister if he could keep the substance of the conversation a secret, but the minister said no. The defendant then told the minister not to bother coming into the police station with him.

The trial court denied the defendant’s motion to suppress his statements to the minister, holding that he had waived any privilege of confidentiality about the conversation. The court found that after the minister had warned defendant against speaking, he “no longer had a reasonable expectation that the communication was going to remain private under those circumstances.”

A state appeals court affirmed the trial court’s decision that the clergy-penitent privilege did not apply to the defendant’s conversation with the minister. The court noted that a state statute specified that “a person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person … voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.”

The court concluded that “the record supports the trial court’s finding that the defendant knew when he voluntarily made the disclosure to the minister that it would not be held confidential and would be subject to disclosure to the police. We find no error in the admission of the confession.” Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).

Application. The clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege, when it was restricted to confessions. However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense, since if a person is willing for others to overhear a conversation he or she is having with a minister, then there is little reason why jurors should be denied access to the contents of that conversation. The court in this case concluded that incriminating statements made by a person to a minister cannot be privileged if the minister states in advance that he or she will not consider incriminating statements to be confidential. Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.