In its opinion yesterday in State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. I agree with the court's conclusion but not its reasoning....
I think that the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential. Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege? It seems to me that the court placed a burden on the defendant that does not exist under the law.
With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent. In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson. If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.
There is, however, an exception to this general rule, and that is why the court's third point was correct. When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995). And that's exactly what happened in J.G.. Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.
Even though I've included a lengthy excerpt, there is much more to Miller's post. I recommend checking the whole thing out for a detailed discussion of the scope of the privilege.