EvidenceProf Blog

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

Monday, September 13, 2010

Real Housewife Of New Jersey: NJ Court Denies Motion To Enjoin Marriage To Prevent Application Of Spousal Testimonial Privilege

New Jersey Rule of Evidence 501(2) provides that

The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse consents, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is complainant.

In Matter of Kozlov, 398 A.2d 882 (N.J. 1979), however, the Supreme Court of New Jersey found that a criminal defendant can "pierce" this spousal testimonial privilege if three conditions are satisfied:

(1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) "by a fair preponderance of the evidence," the party must show "that the information [cannot] be secured from any less intrusive source."

In its recent opinion in State v. Mauti, 2010 WL 3488654 (N.J.SuperA.D. 2010), the Superior Court of New Jersey, Appellate Division, reviewed a trial court opinion permitting the prosecution to pierce the spousal testimonial privilege. Understandably, the court reversed this ruling.

In Mauti, "Joanne" L. alleged that James Mauti, a physician, her employer, and her older sister's boyfriend, sexually assaulted her. After several unsuccessful attempts to secure the voluntary appearance of the older sister, Jeannette, before the Grand Jury, the State subpoenaed her to appear, and she rendered testimony against Mauti, resulting in him being charged with first degree aggravated sexual assault. Before trial, however, Jeannette and Mauti announced their formal engagement to be married, prompting the State to file an order to show cause seeking to enjoin the marriage until the resolution of the pending criminal charge, but the trial court denied the motion, and the Appellate Division later denied the State's emergent application seeking the reversal of the trial court's ruling and the imposition of temporary restraints on the marriage.

Thereafter, Mauti and Jeannette wed, prompting defense counsel to fax a letter to the prosecutor's office stating that Jeannette was "now the holder of a spousal privilege pursuant to N.J.R.E. 501(2)" and that she was invoking her right not to testify against her husband. The State responded by filing a motion to pierce the spousal testimonial privilege, and the trial court granted it, finding that the State had satisfied the three conditions laid out in Kozlov.

Mauti thereafter appealed, and the Appellate Division correctly found that

Here, the State's application to pierce the spousal testimonial privilege in N.J.R.E. 501(2) does not involve a conflict between a defendant's constitutional right to a fair trial and a statutory right, nor is it grounded in a claim of waiver. The State's application simply seeks to compel defendant's spouse to testify about events she witnessed and actions she took after learning of the alleged assault against her sister.

Nonetheless, the court

recognize[d] the facts presented here create a morally compelling case for finding a means of piercing the spousal privilege in N.J.R.E. 501(2). Jeannette's role went far beyond that of a mere witness to defendant's incriminating behavior. By her own admission, Jeannette removed materially incriminating evidence from the crime scene. She thereafter consciously and affirmatively attempted to destroy or tamper with this evidence, by removing forensic or trace materials that could have empirically corroborated the complaining witness's account of the sexual assault. These acts are more akin to the acts of an accomplice than those of a supportive spouse. Finally, in a twist of irony, Jeannette was not defendant's spouse when she accomplished these acts.

Nonetheless, the court found ultimately found that the spousal testimonial privilege is still an enforceable privilege in New Jersey and that it could not create an exception to allow for the admission of Jeanette's testimony in this case, so it reversed the trial court's ruling.



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