NJ Deals Another Blow to Privacy—Marital Privilege Be Gone!


Instead of protecting the privacy rights of married couples, the New Jersey State Assembly hands another tool to the arsenal of prosecutors who investigate people rather than crimes by passing the crime-fraud exception to the marital communications privilege. George Orwell would be proud.

Under the proposed legislation, the spousal privilege that typically applies to communications between 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 and it will soon be considered by the Senate.

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 unless both shall consent to the disclosure.” The privilege stems is rooted in the strong public policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the sanctity of marriage. However, it may be lost if a bystander or some other private third party overhears a conversation between spouses.

The longstanding spousal privilege has its roots in English common law and was first formalized in the English Evidence Amendment Act of 1853. In the United States, the privilege is set forth in the Federal Rules of Evidence as well as the evidence rules of the states.

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 New Jersey 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 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 others communications-related privileges, including those between an attorney and client and a patient and doctor.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

NJ Deals Another Blow to Privacy—Marital Privilege Be Gone!