EvidenceProf Blog

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

Friday, July 3, 2015

NJ Senate Approves Bill to Create Crime-Fraud Exception to Marital Privilege

I've done a couple of posts about State v. Terry, 2014 WL 3579653 (N.J. 2014) 68 A.3d 177 (N.J.Super.A.D. 2013) (here and here). In Terry, the Supreme Court of New Jersey proposed a crime-fraud exception to the marital privilege. The proposed exception works as follows: If Hal tells his wife Wanda that he murdered Vince, that statement would be privileged because it was made in confidence by a husband to a wife. Conversely, if Hal discussed with Wanda how they could poison Vince, the statement would not be privileged because the statement was directed toward advancing a crime or fraud.

This is a logical exception that applies in most states, and the New Jersey Senate unsurprisingly gave final legislative approval to a bill that would codify this crime-fraud exception. According to an article in the New Jersey Law Journal,

The bill would create a crime-fraud exception to the marital communications privilege. Legislators acted at the behest of the state Supreme Court, which last year urged an approval of changes to the rules of evidence.

The court, in its 2014 ruling in State v. Terry, said it supported the creation of a crime-fraud exception to the privilege, but said it did not believe it could make such a drastic change in the law without the approval of the Legislature and the governor.

"This evidentiary privilege was intended to protect the privacy of married couples and the sanctity of marriage. But in practice, it can shield those who have engaged in unlawful acts from criminal prosecution," Senate Judiciary Committee Chairman Nicholas Scutari, D-Union, said in a statement in May, when his committee recommended passage.

"This legislation recognizes the importance of marital privacy but also ensures that individuals engaged in illegal activity and who potentially pose a serious risk to the public are not able to escape prosecution by taking advantage of the process," he said.



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Good time for it, I guess, since conspirators could otherwise marry each other to aid the conspiracy regardless of their respective sexes.

Posted by: Bacchys | Jul 3, 2015 10:24:34 AM

Considering many states have a crime-fraud exception for attorneys, it makes sense that there should be one for spouses.

Posted by: Erik M | Jul 9, 2015 7:02:40 PM

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