Article by Daniel A. Levy, Esq.
When a person is charged in a criminal case, they may be concerned that their husband or wife will testify against them. In fact, people want to know if, under New Jersey law, conversations that they have with their spouse are confidential and protected by law. As discussed below, those conversations generally are protected and confidential, but new legislation may very well change that.
New Jersey law presently provides for a marital privilege that protects all confidential communications between husband and wife. New Jersey Rule of Evidence 509 states, “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. The important questions in a criminal case are whether the communications are actually made “in confidence” and whether one spouse may waive the privilege. The issue of whether the conversation is confidential is very fact specific. A judge would have to look at all of the factors of the situation, like how the communication was conveyed (orally, phone, text, etc.), if others were around to hear it, the expectations of the parties, etc. However, either spouse may waive the privilege and divulge the communication and testify in court in a criminal action. In a civil action (except an action where the spouses are suing each other, or a divorce action) both spouses would need to consent to waive the privilege.
But it is not always the case that one spouse wants to testify against the other spouse. In a criminal investigation, law enforcement may intercept phone calls, texts, and emails through a wire tap. If the evidence is incriminating, they may want to use the evidence at trial. Under the current law, they would not be allowed to. This was the specific question in the recent Supreme Court decision of State v. Terry. The Court told the prosecution that they could not use the evidence because the law says that “no person” may disclose the communication – the law did not limit itself to one of the spouses disclosing the communication.
In the Terry case, the husband was accused of being the leader of a drug ring and his wife was accused of participating in the scheme. The Court observed that this was the type of communication that would fall under the crime-fraud exception to the marital privilege rule, if this case was in Federal court, or in one of the many other states that has this exception. However, New Jersey presently does not have a crime-fraud exception for marital privilege. It does, however, have such an exception for other types of privileged communication, like attorney-client privilege. The Court essentially invited the New Jersey legislature to change the law.
And the legislature is doing just that. On December 15, 2014, the Assembly unanimously voted to change the law so that it 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.” It is believed that the bill will likely be signed into law within the near future.Posted by admin Posted on 19 Dec