After a hearing, during which Brown gave the testimony related above, the trial court rendered a decision on the record of October 25, 2007, granting defendant's motion to preclude Brown's testimony under the privilege. Relying on the three-part test articulated in State v. Cary, 331 N.J.Super. 236, 241, 751 A.2d 620 (App.Div. 2000), the court found that the statements made to Brown by defendant were privileged. The State, in this interlocutory appeal, argues:

At a pretrial evidentiary hearing, the trial court heard testimony from Pastor Brown. In deciding whether the communications between J.G. and the Pastor were privileged, the court looked to N.J.S.A. 2A:84A-23, which defines the cleric-penitent privilege, and considered the three-prong test outlined in State v. Cary, 331 N.J.Super. 236, 241, 751 A.2d 620 (App.Div. 2000). The trial judge found that Brown reached out to J.G., that J.G. had known him as a Pastor for many years, that J.G. desired to be baptized, and that the two had spoken in private.

1981) (communication with Catholic nun in her capacity as hospital administrator not within the privilege); Bonds v. State of Arkansas, 837 S.W.2d 881 (Ark. 1992) (communication with minister who was also defendant's employer not privileged, because the communication was in minister's capacity as employer, not spiritual advisor); State of New Jersey v. Cary, 751 A.2d 620 (N.J. App. 2000) (communication with church deacon who was also police officer not privileged, as the deacon was performing at least partially secular function as law enforcement officer at time of communication). See also State of Washington v. Martin, 975 P.2d 1020, 1026 n. 65 (Wash. 1999) (listing cases where communication with clergy was in other than professional capacity as clergy).

In reaching this determination, the judge cited several examples of communications that had been deemed outside a cleric's professional capacity. Id. at 830, citing Masquat v. Maguire, 1981 OK 137, 638 P.2d 1105, 1106 (1981) (concluding that the plaintiff hospital employee communicated with a Catholic nun in her capacity as hospital administrator, not in her religious role, so the communication was not within the privilege), Bonds v. State, 310 Ark. 541, 544–546, 837 S.W.2d 881 (1992) (determining that the defendant's communication with a minister who was also the defendant's employer at an air conditioning business was made to the minister in his capacity as an employer, not as a spiritual advisor), and State v. Cary, 331 N.J.Super. 236, 246–247, 751 A.2d 620 (2000) (noting that the defendant had no reasonable expectation of privacy when his conversation with the church deacon occurred after the defendant was ready to surrender and the deacon had introduced himself as a state trooper, advised the defendant of his right to remain silent, and conducted a pat-down search).

Simply coming to a person, who has some religiously related function, does not create a screen thwarting the admission of otherwise relevant information. 331 N.J.Super. 236, 751 A.2d 620 (2000). Though not directly on point, the Delaware Federal Court case of Pagano v. Hadley, demonstrates the decided limitation of the use of D.R.E. 505 to preclude testimony.

Commonwealth v. Stewart, 547 Pa. 277, 690 A.2d 195 (1997); People v. Johnson, 270 Cal.App. 204, 75 Cal.Rptr. 605 (2d Dist. 1969); Kos v. State, 15 SW 3d 633 (Tex.App.-Dallas 2000).State v. Berry, 324 So.2d 822 (La. 1975); Tankersley v. State, 724 So.2d 557 (Ala.Cr.App. 1998); State v. Richmond, 590 N.W.2d 33 (Iowa 1999); State v. Cary, 331 N.J. Super. 236, 751 A.2d 620 (App.Div. 2000).State v. Orfi, 511 N.W.2d 464 (Minn.Ct.App. 1994).

For the privilege to apply, the communication must be made: "(1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor." J.G., 201 N.J. at 38384 (quoting State v. Cary, 331 N.J. Super. 236, 244 (App. Div. 2000)). Having never made the argument before Judge Gilson, defendant certainly failed to carry his burden.

"[T]hree elements must be present for the privilege to apply; a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor." State v. Cary, 331 N.J. Super. 236, 241 (App. Div. 2000). There is no debate that Imam Bethea was a cleric, as defined by N.J.R.E. 511.

See In re Murtha, 115 N.J.Super. 380, 384–86, 279 A. 2d 889 (App.Div.) (holding that a nun in a teaching order was not “a clergyman, minister or other person or practitioner authorized to perform similar functions” under former Evidence Rule 29, governing clergy-penitent privilege) (internal quotation marks and citation omitted), certif. denied, 59 N.J. 239, 281 A. 2d 278 (1971) ; see also State v. Cary, 331 N.J.Super. 236, 240–47, 751 A. 2d 620 (App.Div.2000) (discussing whether a Baptist Deacon qualifies as a cleric or spiritual advisor under N.J.R.E. 511 ). Nor do the three identified sources necessarily provide the same kind of services.

Privileges "are accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure." State v. Cary, 331 N.J.Super. 236, 244-45, 751 A.2d 620 (App.Div. 2000) (quoting State v. Briley, 53 N.J. 498, 506, 251 A.2d 442 (1969))