Changes Coming to New Jersey’s Marital Communication Privilege

The New Jersey Senate is poised to adopt a crime-fraud exception to the marital communication privilege.

Under the proposed legislation, the marital communication privilege that typically applies to spouses or civil union partners would be unavailable “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 state assembly passed the bill at the end of last year.

The Spousal Privilege

The marital communications privilege is memorialized in the New Jersey Evidence Act of 1960 and Rule 509 of the Rules of Evidence. Rule 509 provides that [n]o person shall disclose any communication made in confidence between such person and his or her spouse.” The privilege is rooted in the strong public policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the sanctity and tranquility of marriage. However, it may be lost if a bystander or some other private third party overhears a conversation between spouses.

The Impact of State v. Terry

In State v. Terry, the New Jersey Supreme Court considered whether intercepted phone conversations and text messages between a husband and wife, pursuant to a court-approved wiretap, are protected communications under the marital communications privilege. The defendants in the case, along with 20 others, were indicted for conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and heroin. The defendants moved to prevent the prosecution from introducing the phone conversations and text messages between them as evidence in their case, arguing that the communications were protected by the marital communications privilege.

The Supreme Court held that a confidential marital communication protected under the marital communications privilege does not lose its privileged status by virtue of a wiretap under the New Jersey Wiretapping and Electronic Surveillance Control Act. However, it also concluded that Rule 509 should be amended to include a crime-fraud exception that is similar to the exceptions that apply in federal and state courts throughout the nation as well as under other evidentiary rules in New Jersey. However, given the significance of the change, it called on New Jersey lawmakers to amend the rule legislatively.

As highlighted by the court, all of the federal appeals courts have adopted a crime-fraud exception to the marital communications privilege. In addition, many states, including New York, have similarly amended their evidentiary rules. In New Jersey, a crime-fraud exception already exists for several other communications-related privileges, including those between an attorney and client and a patient and doctor. It appears that shortly there will also be a crime-fraud exception to the marital communication privilege as well.

For any legal matters, don’t hesitate to consult an attorney.