Rodriguez-Ramirez v. State, No. 1 CA-SA 230182 (App. Div. I, April 29, 2025) (J. Gass) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2025/Rodriguez-Ramirez%20Final.pdf

A.R.S. § 13-4062.3  PRECLUDES ADMISSION OF A CONFESSION MADE BY A PRIEST TO A CO-PRIEST ACTING IN A PROFESSIONAL CAPACITY WHERE THE CONFESSION INVOLVED THE CO-PASTOR PROVIDING SPIRITUAL ADVICE, CONSISTENT WITH THE RULES, CUSTOMS AND PRACTICES OF THE CHURCH AND WHERE THE PRIEST MAKING THE CONFESSION REASONABLY BELIEVED THE CONFESSION TO BE CONFIDENTIAL

Defendant, a pastor at a Phoenix church was charged with sexual offenses with a co-pastor's niece.  He had conversations with another pastor in the church about the underlying facts before he was charged. Unbeknownst to him the conversation was recorded and distributed to other priests and the congregation. The recording was received into evidence by the trial court. Significantly, the decision to admit the recording was made after the court read a transcript of the recording and heard argument about its content. Defendant did make a record that he did not object to the disclosure to the court of the transcript with the understanding he was not waiving the clergy—penitent privilege. The trial court determined the co-pastor was not acting in a “professional character” at the time of the conversations and the defendant did not “reasonably” believe the confession to be confidential and therefore the privilege did not apply. The Arizona Court of Appeals accepted special action jurisdiction to consider whether the clergy—penitent privilege A.R.S. § 13-4062.3 barred admission of the recording. The court of appeals granted the relief requested and remanded the matter to the trial court.

While deciding whether a privilege should apply to evidence the court should focus on the surrounding circumstances of the communication and not the content of the communication, here the defendant expressly consented to its consideration by the court so there is no error on this point. The holder of a privilege may waive the privilege for a limited purpose.

 “A clergyman or priest [shall not be examined as a witness], without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.” A.R.S. § 13-4062.3

 Here, the confession was made to a member of the clergy,  who in a “professional character” offered spiritual advice.  A prominent feature of the confession was defendant's struggle to control “unwanted urges,” concern about what he did, a desire to protect the congregation, the alleged victim and her family.  The confession was received consistent with the church's discipline process defined as “the duties and obligations of the clergyman and the rules and customs of the cleric's faith.” This the court of appeals found the facts established that the defendant had a reasonable belief the confession was confidential and that the privilege therefore precluded its admissibility.