Legal landscape note: This article was originally published in 2015 and describes the law as it stood at that time. New Jersey law changes frequently.
What you say to your spouse in confidence has long been shielded from a New Jersey courtroom. That protection is narrowing: lawmakers moved to strip the privilege where the communication relates to an ongoing or future crime or fraud in which both spouses are participants. If you or your spouse is under investigation, the calls and texts between you may not be as private as you think.
Crime-Fraud Exception to Spousal Privilege Passes Assembly
By David Gialanella, December 15, 2014.
A bill that restricts when criminal defendants may invoke a privilege that bars communication between spouses from evidence has cleared one chamber of the Legislature -- and unanimously so.
The New Jersey Assembly on Dec. 15 passed the measure, which would create a crime-fraud exception to the marital communications privilege, by a vote of 73-0. There were no abstentions.
It's a change the state Supreme Court urged lawmakers to make in a decision earlier this year, State v. Terry.
The measure, A-3636, was introduced on Sept. 15 and, a week later, unanimously approved by the Assembly Judiciary Committee.
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 Evidence Act allows for adopting new evidence rules either by legislation or court rule. Rabner cited prior instances where the court had called on the Legislature for significant revisions to the hearsay rules.
The bill nullifies 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."