§ 41.05 Key Points

• Jurisdiction: United States

§ 41.05 Key Points

Clergy-Penitent Privilege

Every jurisdiction recognizes a clergyman-penitent privilege. There is considerable variations in the states; the statutes differ in three principal respects: their definition of "clergy," their scope, and who is the holder—the cleric, the congregant, or both. The proposed federal rule made the communicant the holder of the privilege. Some state statutes permit the clergy member to refuse to testify even when the penitent has expressly consented, if "the disclosure of the information is in violation of his sacred trust." First Amendment Free Exercise issues obviously are implicated in this context.

The communication must be made for the purpose of obtaining spiritual guidance; consultations for other reasons do not fall within the privilege. The modern privilege is not limited to "confessions" in the doctrinal religious sense; restricting the privilege to confessions would raise First Amendment issues. Like other communication privileges, the privilege requires confidentiality, and the presence of a third party cuts against an intent of confidentiality.

Waiver. Failure to invoke the...