EvidenceProf Blog

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

Wednesday, July 23, 2014

Any Reason These Two Should Not Be Married?: Supreme Court of New Jersey Proposes Crime-Fraud Exception to Marital Privilege

Last July, I posted an entry about the opinion of the Superior Court of New Jersey, Appellate Division in State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013). In Terry, the court reversed the trial court's decision to engraft a crime-fraud exception onto New Jersey Rule of Evidence 509, which provides 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 privileged communication.

The exception would have allowed prosecutors to present into evidence wiretapped phone calls between husband and wife Teron Savoy and Yolanda Terry in which they discussed a drug trafficking network run by Savoy. The trial judge reasoned that because these statements were made in furtherance of a crime, they should be admissible, notwithstanding the confidential marital communications privilege contained in Rule 509. The Superior Court of New Jersey, Appellate Division, later reversed, concluding that the trial judge lacked the authority to create a crime-fraud exception out if whole cloth. So, how did the Supreme Court of New Jersey rule in State v. Terry, 2014 WL 3579653 (N.J. 2014)?

The New Jersey Supremes agreed with the trial court in spirit but the intermediate appellate court in principle. According to the court,

In its present form, Rule 509 protects communications between spouses about criminal activities they are jointly planning or committing. That aspect of the privilege does not serve its purpose and undermines the public's interest in attaining justice. We therefore propose a crime-fraud exception to the marital communications privilege, similar to the approach that eleven federal circuits and many states have adopted.

Because the proposed amendment presents a fundamental change to the Rules of Evidence with far—reaching consequences, we follow the procedures outlined in the Evidence Act of 1960: we submit a proposed crime-fraud exception—set forth at Appendix A—to the Senate and General Assembly, for their approval by joint resolution, and to the Governor for his signature

Under the proposed exception,

There is no privilege under this rule...in a criminal action or proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses were joint participants at the time of the communication.



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Then what is the point of the martial privilege? The point of the martial privilege is to protect the institution of marriage, not the ability of the government to prosecute crimes. Now perhaps marriage doesn't need and/or deserve such a privilege. But if that is the case it is better to toss the entire concept of a martial privilege than it is to riddle it with exceptions to the point of making it meaningless.

Posted by: Daniel | Jul 23, 2014 11:11:37 PM

It's similar to the reason we have a crime-fraud exception to most (all?) versions of the attorney-client privilege. It's valuable to have a protected attorney-client communications...but not when those communications are directed toward defrauding the IRS, etc. And it's valuable to have protected spousal communications...but not when those communications are directed toward advancing a drug empire, etc.

I wrote about this a bit in A Public Privilege:


Posted by: Colin Miller | Jul 24, 2014 12:03:45 PM

Thanks for that link CM. I am not persuaded by the analogy. A lawyer--unlike a reporter or a spouse--is not an office of the court or an officer of the law. In other words, a lawyer has a specific expertise in the law and serves as an officer of the court--that creates obvious optical problems (as a minimum) should a lawyer be advising people on how to break the law. A husband doesn't take a vow to uphold the law--he takes a vow to uphold the marriage though. The same with a reporter. So the same public policy interests are not at stake with a crime-fraud exception to the lawyer-client prlividge as they are with a spousal prlividge.

Should there be a crime-fraud exception to the ministerial exception too? What about psychologists? The point is that there are good public reasons why spousal privileges were implemented. I personally don't see the value in undermining them.

Posted by: Daniel | Jul 27, 2014 2:53:49 PM

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