EvidenceProf Blog

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

Sunday, January 10, 2021

New Jersey Court Finds Ex Post Facto Clause Not Violated by Retroactive Application of Crime-Fraud Exception to Marital Privilege

As I noted in a prior blog post, New Jersey adopted the crime-fraud exception to the marital privilege in 2015. It contains an exception to the marital privilege

in a criminal action or proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication.

But, given the Ex Post Facto Clause, would this exception apply to private statements made between spouses in 2014? That was the question addressed by the Superior Court of New Jersey, Appellate Division in its recent opinion in State v. Ingram, 2021 WL 71292 (N.J.App.20201).

In Ingram, Ashley D. Bailey was convicted of two counts of second-degree official misconduct. At trial, the State introduced the following text messages between Bailey (a police officer) and her husband:

[Female]: Don't get yourself all worked up. It's nothing you can change about it, if it's done. We had our chance, even me, to throw in the towel and ... get free of it all. And I chose you, so I chose my fate. Shit happens. I guess it was just in God's plan. I'm stressed, but it's nothing I can change.
[Male]: It ain't nothing. Don't worry about it. As long as you're not a crooked cop, we'll be good.
[Female]: That's not true. There's more to it than that. I tried so many times to explain how much more that included, but I chose to be here, so I am just as responsible. I promised myself that I wouldn't make it here, but what can I do about it?
[Male]: It ain't even nothing. People just talking. You off?
[Female]: They talking and they thinking up a plan, babe. But no worries. I'm relieved they foo [sic] what I couldn't. A good plan.
[Male]: How long you going to be out?
[Female]: You're not going to believe what I was ... told tonight.
[Male]: What?
[Female]: It's true.
[Male]: How did that happen?
[Female]: One of the guys working with L3 Narc. Fuck, fuck, fuck. How did I fucking get here? WTF. I am so fucking disappointed with myself. I am so fucking stressed now.
[Male]: What? They know nothing.
[Female]: I don't know what he knows. It's time for me to brace myself. I accept what's for me. I accepted that when I chose you. We chose each other and I'm ready for that battle. I don't care. I chose to love and that's all that matters. You love me and I love you, so let them bring me what I knew would come some day.
[Male]: We gonna be good. Let them watch.
[Female]: I know. If not, we still got each other and that's good enough for me. It's time for you to choose, though. Choose to let us burn or choose to help us beat this. I can't make that decision for us. Look where it got us now. I could use a hug and a foot rub. You up for it?
[Male]: I got us. Watch.

After Bailey was convicted, she appealed, claiming that application of the crime-fraud exception to these text massages violated the Ex Post Facto Clause, which states that "No State shall...pass any...ex post facto Law"

In Calder v. Bull, the Supreme Court held that the Ex Post Facto Clause prohibits the retroactive application of four types of laws:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Facially, New Jersey's crime-fraud exception would seem to fall into the fourth category that alters the laws of evidence. But courts have interpreted this fourth category as only covering new rules of sufficiency, not new rules of admissibility. Or, as the court put it in Ingram,

New rules of evidence generally do not violate the ex post facto clause....It is only when a law lowers the quantum of proof necessary to obtain a conviction that the clause is implicated....

Bailey's objection must fail because the long-standing doctrine is intended to protect the marital privilege, not the planning or commission of crimes. The marital privilege has always been subject to narrow construction, and the crime fraud exception in no way lowered the quantum of evidence needed to convict her.

Therefore, the court found that Bailey was not entitled to relief.



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