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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, December 17, 2008

The Hands That Hold The Privilege: Cape May Murder Trial Reveals That New Jersey Places Confidential Marital Communications Privilege In Hands Of Both Spouses

A murder trial in Cape May, New Jersey gives me the opportunity to delve into New Jersey's confidential marital communications privilege.  The state has charged Jesse Watkins with first-degree murder in connection with his alleged killing of Craig White.  And according to Superior Court Judge Raymond Batten, Watkins' ex-wife, Karen Fox, will be able to testify at trial regarding Watkins' private confession to her.

According to Fox, in 1990, before her marriage to Watkins, she disclosed to him that she had an abortion before she met him.  Watkins then revealed a secret of his own:  He had learned that Fox was also dating White, his cousin, so he "took White out to a field, had him dig a hole and then shot him with a shot gun."  Notwithstanding this confession, Watkins and Fox later married in 1997 and divorced in 2000.

So, why wasn't Watkins' confession to Fox covered by New Jersey's confidential marital communications privilege?  Well, without even having to look at the privilege, it is clear that the confession was given before the couple was married, meaning that Fox could testify about it under any state's version of the privilege.  When we look at New Jersey's version of the privilege, though, we see that it has some eccentricities.  According to New Jersey Rule of Evidence 509,

     "No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2) [Rule 501(2)]. When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication."

The first point I want to make about this privilege is that it is the rarest type of confidential marital communications privilege.  The vast majority of states place the privilege either in the hands of the defendant spouse, who can prevent his spouse from testifying against him, or in the hands of the testifying spouse, who can choose whether to testify against the defendant spouse.  New Jersey is thus one of very few states that requires the consent of both spouses to have the privilege waived.

The second point is that I have come across very few confidential marital communications privileges that address the separation situation (although some courts read these in).  So, according to New Jersey, if you have a "War of the Roses" type situation where spouses are separated but living under the same roof, the privilege still applies.  And if spouses are separated and living apart but they briefly reconcile for a night of passion, the privilege still applies as well.      

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/12/spousal-confess.html

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