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Marital Privilege Exception Gets Legislative Approval

Michael Booth, New Jersey Law Journal

 

The New Jersey Senate on June 25 gave final legislative approval to a bill that would restrict when criminal defendants may invoke a privilege that bars communication between spouses from being admitted into evidence.

The Senate passed the measure, A3636, in a 39-0 vote, without debate. It now goes to Gov. Chris Christie, who will likely sign the bill into law.

The bill passed the Assembly in a 73-0 vote in December.

The bill would create a crime-fraud exception to the marital communications privilege. Legislators acted at the behest of the state Supreme Court, which last year urged an approval of changes to the rules of evidence.

The court, in its 2014 ruling in State v. Terry, said it supported the creation of a crime-fraud exception to the privilege, but said it did not believe it could make such a drastic change in the law without the approval of the Legislature and the governor.

“This evidentiary privilege was intended to protect the privacy of married couples and the sanctity of marriage. But in practice, it can shield those who have engaged in unlawful acts from criminal prosecution,” Senate Judiciary Committee Chairman Nicholas Scutari, D-Union, said in a statement in May, when his committee recommended passage.

“This legislation recognizes the importance of marital privacy but also ensures that individuals engaged in illegal activity and who potentially pose a serious risk to the public are not able to escape prosecution by taking advantage of the process,” he said.

In Terry, Chief Justice Stuart Rabner asked lawmakers to follow the lead of all 11 federal circuits and many states by creating the exception.

In the case, the Ocean County Prosecutor’s Office sought to make use of phone calls and text messages between Teron Savoy, the accused leader of a drug trafficking network, and his wife, Yolanda Terry, also charged with participating in the scheme, according to court documents.

The calls and texts were intercepted by wiretapping two cellphones used by Savoy, according to court documents.

Savoy and Terry moved to bar admission of the evidence at trial based on New Jersey Rule of Evidence 509, which provides, “No person shall disclose any communication made in confidence between such person and his or her spouse.” The privilege is also set forth in the Evidence Act of 1960. At present, marital privilege may be overcome only in certain circumstances, such as when either spouse waives it.

Ocean County Superior Court Judge Stephanie Wauters denied the motion, holding the privilege inapplicable because it would be law enforcement, not one of the spouses, who disclosed the communications.

But the Appellate Division reversed, deeming the communications protected even though they were intercepted. The panel agreed with Wauters that a crime-fraud exception for spousal communications was a good idea, but said New Jersey judges lack power to create such an exception.

The Supreme Court affirmed on the applicability of the marital privilege to Savoy and Terry’s case, but called for a change in the law to “strike an appropriate balance between marital privacy and the public’s interest in attaining justice.”

“The marital communications privilege is meant to encourage marital harmony, not to protect the planning or commission of crimes,” Rabner said.

He proposed language that would create an exception for “a communication that relates to an ongoing or future crime or fraud in which the spouses were joint participants at the time of the communication.”

Rabner pointed out that many other jurisdictions—including California, Illinois, New York and Texas—have a crime-fraud exception. And the crime-fraud exception already exists for other evidentiary privileges in New Jersey, he added: attorney-client, physician-patient, cleric-penitent and mediation privileges.

The bill would nullify the privilege on communications between spouses or civil union partners “if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication.”

The sponsors are Assembly Judiciary Committee chairman John McKeon, D-Essex, who is with Springfield’s Hardin, Kundla, McKeon & Poletto; Assemblyman Joseph Lagana, D-Bergen, who is with Chasan, Leyner & Lamparello in Secaucus; Assemblywoman L. Grace Spencer, D-Essex, who is the chief prosecutor for the city of Newark; Scutari; and Senators Kevin O’Toole, R-Essex, who is with O’Toole Fernandez Weiner Van Lieu in Verona and James Holzapfel, R-Ocean, who is with Toms River’s Citta, Holzapfel & Zabarsky.

The law, if signed, would go into effect immediately.

Contact the reporter at mbooth@alm.com.

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