No (Giu)dice?: The Indictment of 2 Stars of The Real Housewives of New Jersey & NJ's Spousal Privilege

Yesterday, Teresa and Giuseppe (Joe) Giudice were indicted on 39 charges, primarily "stem[ming] from false income statements on loan and mortgage documents and failure to file tax returns." Here is a copy of the indictment. While the potential trial would be held in federal court -- the United States District Court for the District of New Jersey -- New Jersey state privilege law would apply pursuant to Federal Rule of Evidence 501. So, what does that mean?

New Jersey Rule of Evidence 509, New Jersey's confidential marital communications privilege, states that

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). 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. 

Many states have crime-fraud exceptions to their confidential marital communications privileges, meaning that, in those states, one Giudice could testify against the other Guidice regarding private conversations in which they planned the crimes (if, for instance, one of the two struck a plea deal).

In New Jersey, however, that is not the case. In State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013), the trial judge engrafted a crime-fraud exception onto New Jersey Rule of Evidence 509. The Superior Court of New Jersey, Appellate Division, then removed this new appendage, concluding as follows:

We must disagree with the trial judge's reasoning. The fact that the spousal testimonial privilege was at issue in [prior cases] does not mean that we are free to create exceptions to other privileges. The fact that the Legislature codified a crime-fraud exception to the attorney-client privilege does not mean that we can add that exception to the marital communications privilege because the privileges are “akin”....Rather, under the Supreme Court's decisions in Byrd and Mauti, we may not engraft a crime-fraud exception onto the marital communications privilege.  

So, what would happen if the prosecutor wants to get one Giudice to testify about private communications with the other Giudice? No (Giu)dice. And while the fact that the Giudices now have most of their lives recorded might mean that their current conversations are not confidential, the charged crimes allegedly occurred before their reality show, meaning that the privilege contained in New Jersey Rule of Evidence 509 should apply (although it appears that some of the allegations in the indictment relate to failing to disclose income from their TV show in bankruptcy filings).

-CM