What is the privilege recognized by the state? And who owns the privilege? This subsection will focus on the ownership of the privilege. Each state provides the rule regarding clergy privilege but most also provide in their rules of evidence the particularities of who can claim the privilege.
In some states, their statutes or rule of evidence explicitly state that a clergyman can claim the privilege independently of the communicant. In other states, the conferring of the privilege to the clergyman is implied.
For example, Alabama has an explicit inclusion of clergyman in its rule of evidence, which reads:
(c) The privilege may be claimed by the communicating person, by that person's guardian or conservator, or by that person's personal representative if that person has died, or by the clergyman.
The other states that explicitly include clergy are: Alabama, California, Colorado, Illinois, Missouri, New Jersey, and Virginia*.
*Virginia seems to imply only the clergy and not the penitent can claim privilege
For other states, who can claim the privilege is a bit more ambiguous but the ability for a clergyman to claim the privilege, independent of the communicant is implied.
An example is Indiana, whose statute indicates:
Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications:
(3) Clergymen, as to the following confessions, admissions, or confidential communications:
(A) Confessions or admissions made to a clergyman in the course of discipline enjoined by the clergyman's church.
(B) A confidential communication made to a clergyman in the clergyman's professional character as a spiritual adviser or counselor.
The other states that imply the clergy can independently claim privilege are: Georgia, Indiana, Iowa, Maryland, Ohio, Oregon, Pennsylvania, West Virginia, and Wyoming*.
*Wyoming simply states "The following persons shall not testify in certain respects: . . .
(ii) A clergyman or priest concerning a confession made to him in his professional character if enjoined by the church to which he belongs."
Over half of the states only recognize the penitent's privilege. Most state that a clergyman can claim the privilege but only on the penitent's behalf.
An example of one of these statutes from Hawaii reads:
(c) Who may claim the privilege. The privilege may be claimed by the communicant or by the communicant's guardian, conservator, or personal representative. The member of the clergy may claim the privilege on behalf of the communicant. Authority so to do is presumed in the absence of evidence to the contrary.
Some are more ambiguous but given the language about waiver indicate it is the communicant only who holds the privilege like in Connecticut:
A clergyman, priest, minister, rabbi or practitioner of any religious denomination accredited by the religious body to which he belongs who is settled in the work of the ministry shall not disclose confidential communications made to him in his professional capacity in any civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege herein provided.
The states (and district) that recognize only the communicant's privilege are the following: Alaska, Arizona, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, and Wisconsin
