Ray Rice & Marital Privilege: Why Neither of New Jersey's Spousal Privileges Will Protect the Running Back

According to ESPN, "Baltimore Ravens running back Ray Rice and Janay Palmer were married Friday...." What makes this both sad and interesting is that"[t]he marriage came one day after Rice was indicted by a grand jury on third-degree aggravated assault for allegedly striking Palmer unconscious." ESPN legal analyst Lester Munson is quoted in the article as saying that

"If the wife claims a spousal privilege, it is likely that she would not be forced to testify against him."..."The prosecution would face the prospect of proving the assault without any testimony from the victim. It is possible, but it would be extremely difficult. Unless a prosecutor has a burning desire to become famous in a case involving Rice, the prosecutor may be likely to invest his time in other, more productive activities."

But is that actually the case?

The assault took place at the Revel Casino and Hotel in Atlantic City, New Jersey, meaning that New Jersey privilege law applies. Like many jurisdictions, New Jersey has two spousal privileges. First, New Jersey Rule of Evidence 509 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. 

This privilege would not cover any statements made by Rice to Palmer (or vice versa) before they were married. And because the assault occurred before the marriage, this privilege isn't like to help Rice at all.

Second, New Jersey Rule of Evidence 501(2) states 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 and the accused shall both consent, 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 the complainant. 

Again, I don't see how this privilege helps Rice. Palmer is now his wife, so this privilege would apply if Rice were charged with a crime against some third person. But Rice is not charged with a crime against a third person; he is charged with an offense against his spouse, making the exclusion in New Jersey Rule of Evidence 501(2)(b) applicable.

Therefore, I don't see how either of New Jersey's marital privileges are applicable to Rice. Moreover, even if they were there is an argument that forfeiture by wrongdoing would trump marital privilege.

-CM