When Can a Private Talk With Clergy Be Used as Evidence in a Criminal Case?

The people we confide in are rarely just one thing to us. Your pastor is also the person who married you. Your priest coached your kid's team. The person you would go to about the worst thing you have ever done is often a friend, a relative, or a colleague as well.

Arizona law protects a confession made to clergy. The Legislature created that protection for much the same reason the law protects what you tell a lawyer or a doctor — there are things people need to be able to say somewhere. But when a conversation later becomes evidence in a criminal case, a court has to sort out what that conversation actually was.

In August 2026, the Arizona Supreme Court laid out how that sorting is supposed to work, and the answer starts with a question no Arizona decision had answered under this statute before: what makes something a confession in the first place?

A recorded conversation

After allegations surfaced that a pastor had sexually abused a child, he met privately with a fellow pastor at his church. The two men were also relatives and had been friends for decades.

The other pastor recorded the conversation without his knowledge, then shared the recording with the child's family and with members of the congregation. The family reported the matter to law enforcement, and the State later filed charges.

Before trial, the accused pastor asked the court to keep the recording and the transcript out of evidence, arguing the conversation was a protected confession. The trial judge held a hearing, heard both men testify, reviewed the transcript, and rejected the claim. The court of appeals reached the opposite conclusion. The State asked the Supreme Court to settle the standard.

What the privilege is actually for

Arizona's clergy-penitent privilege protects what the courts have described as a genuine human need — to disclose to a spiritual counselor, in confidence, what a person believes to be a wrong they have committed, and to receive spiritual consolation and guidance in return.

But every privilege comes at a cost. It keeps evidence from a court and makes finding the truth harder, which is why Arizona construes privileges narrowly. And this particular privilege is narrower than some by its own terms. The spousal and attorney-client privileges protect communications generally. This one protects only a confession.

Which made a gap suddenly important: when the court of appeals took up this case, no Arizona decision had defined what counts as a "confession" under this criminal privilege statute.

Defining it without deciding theology

The Court supplied the definition, adapting one it had already adopted weeks earlier, under the child-abuse reporting statute, in a related case: a confession is a confidential acknowledgment or admission of a crime, sin, or fault to a member of the clergy for the purpose of absolution.

Then it did something careful with the word "absolution." It read the word by its function, not by denomination. No formal rite is required. It is enough that the person disclosed a wrong to clergy while seeking spiritual absolution, consolation, or guidance. The Court noted the constitutional reason for reading it that way: a definition requiring a formal ceremony would favor faiths that practice one over faiths that do not.

There is a real tension here that the Court addressed head-on. In the related case, it had held that whether something counts as a confession under a different statute is an inherently doctrinal question that courts may not decide. So how can a judge apply this test?

The answer is that the test asks a factual question, not a theological one. A court is not deciding whether a communication satisfies any faith's requirements. It is asking what the communication was for. That question a judge can answer.

The rest of the framework

Once a confession is established, three more requirements follow, and the Court clarified each.

Was the person receiving it clergy? The recipient must be recognized as clergy under the religious organization's rules and customs. The Court made clear this is not limited to faiths that ordain — reading it that way would favor some denominations over others.

Were they acting as a spiritual leader? Here the Court adopted a two-part test. It begins with the speaker's own understanding of the relationship, because the privilege exists to protect that expectation. But that belief must also be objectively reasonable under the circumstances. That combination protects someone whose sincere understanding turns out to be mistaken, while keeping the privilege from turning on a person's undisclosed private intentions.

Did it follow the church's practices? The confession must accord with the organization's rules, customs, or practices — with the party claiming the privilege bearing the burden of establishing that.

The Court also confirmed that the privilege belongs to the person who made the confession, and that it can be impliedly waived by a course of conduct inconsistent with keeping it confidential. It expressly did not decide whether that happened here, because it did not need to.

Why this conversation did not qualify

The trial judge found that the discussion centered on the fallout: how the allegations would affect the congregation's view of him, church administration, whether the family intended to go to law enforcement, and whether he should leave the state. The judge did not find credible the testimony that he had been seeking spiritual guidance.

The Supreme Court held those findings were supported by reasonable evidence — and that the court of appeals had made two errors. It never defined "confession" before deciding whether this was one. And it reweighed the evidence instead of deferring to the trial judge, who had heard the witnesses and assessed their credibility. On review, the question is not whether the evidence could support a different conclusion, but whether reasonable evidence supports the one the trial court reached.

Then the Court said something that cuts in both directions, and it is the most useful sentence in the opinion:

A communication does not stop being a confession just because practical matters also come up. And a communication does not become a confession just because it contains admissions of wrongdoing, spiritual discussion, or a prayer.

Here, the conversation did include admissions, spiritual discussion, and a closing prayer. On this record, those features did not establish that it was made seeking absolution.

Because it was not a confession, the analysis ended there. The Court vacated the court of appeals' opinion, affirmed the denial of suppression, and sent the case back for further proceedings. It did not decide guilt, and it did not impose any sentence. The charges remain allegations.

What does this decision teach us?

• The privilege protects a confession, not a conversation. Unlike some other privileges, this one covers a specific kind of communication, and the threshold question is whether the communication was one.
• Purpose is what the law examines. Under this ruling, a court asks what the communication was for — seeking spiritual absolution, consolation, or guidance — not whether it satisfied any religion's formal requirements.
• The test is built to fit many faiths. No ordination requirement and no formal rite requirement, because a narrower reading would prefer some denominations over others.
• Belief matters, but it has to be reasonable. The speaker's understanding that they were talking to a spiritual leader counts, provided that understanding is objectively reasonable in the circumstances.
• Trial courts hold the fact-finding role. A judge who hears the witnesses makes the credibility findings, and an appellate court asks whether reasonable evidence supports them rather than substituting its own view.