See People v. Peterson, 2015 IL App (3d) 130157 (November). Episode 107 (Duration 25:22).

Last week we explored how the issue of a possible attorney conflict of interest entered into the Drew Peterson case. This week we are looking at how the Illinois clergy privilege pops up in the case.

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You Know the Facts…

Here’s  a quick recap of the Drew Peterson case, in a nutshell.

We have an ex police officer and …

• Wife number three is found dead in her bathtub
• Wife number four, the current wife, goes missing
• But before wife number 4 disappears she talks

Wife number four makes a statement to her pastor to the effect that Defendant was gone from the house at around the time of the drowning of the third wife.

When defendant returned to the house in the morning he was wearing all black, was doing laundry and had another woman’s clothing with him.

Shortly, thereafter he told her the police would be questioning them and he coached her on how to lie about his alibi.

She had this conversion with the pastor in confidence, even though the pastor did bring another person to this counseling session and it happened in a public place.

The Illinois Clergy Privilege

Obviously, it was the State who sought to admit this statement and it was the defendant who was fighting to keep it out.

For this rule of evidence we have to look in the Illinois Code of Civil Procedure.

It states that:

Just to make sure we cover everything…

The Illinois Rules of Evidence don’t mention or discuss the clergy privilege. Instead they only say that…

So, we can’t ignore the case law with respect to this rule. There are are other important issues that need be flushed out.

What Case Law Says About Clergy Privilege

The case law also tells us that the clergy privilege belongs to both the individual making the statement and the clergy member. See People v. Thomas, 2014 IL App (2d) 121001, ¶ 94.

To fall under the protection of the clergy privilege, the “communication must be an admission or confession

(1) made for the purpose of receiving spiritual counsel or consolation
(2) to a clergy member whose religion requires him to receive admissions or confessions for the purpose of providing spiritual counsel or consolation.” People v. Campobello, 348 Ill. App. 3d 619, 635 (2004).

The privilege applies only to admissions or confessions made in confidence.

Furthermore, confidence is destroyed when the statement is made to a clergy member in the presence of a third person unless that person was indispensable to the counseling or counseling activity of the clergy member.

If the clergy member does not object to testifying, the burden is on the person asserting the privilege to show that disclosure is prohibited by the rules or practices of the particular religion involved. Thomas, 2014 IL App (2d) 121001, ¶ 94. In addition, the person who made the statement may waive the privilege by communicating the admission or confession to nonprivileged parties.

Clergy Privilege in Drew Peterson Case

So a superficial reading of the statutes looks like Drew maybe had a point. But the facts on the ground and the case law always rule the day.

The court ruled that in this case it was not error to admit the statement because

• The conversation occurred in public, at a starbucks
• There was another person there with them and it did not look like that person’s presence was required for the counseling
• The pastor was not asserting the privilege
• Defendant did not establish this was for spiritual counseling nor establish that
• The pastor was following any formalized rules of procedures that prohibit the disclosure
• And, oh yea, the wife appeared to have told other people about it

So No – this issue on the appeal was easily tossed a side.

But See…

However, if we are anything here at the Criminal Nuggets we are thorough, and we should compare this case to an earlier case this year.

See People v. Thodos, 2015 IL App (2d) 140995 (September).

In that case, a defendant tells his pastor that he has cut up his ex-wife’s tires. The pastor tells 8 other people in an effort to figure out how to help this guy. Unfortunately, for defendant one of those guys was a cop.

In that case, it was error for pastor to testify against the defendant.

So, I wanted to bring this case to your attention so you can have an example of a case going the other way.