New Jersey's 10th Legislative District

Holzapfel, McGuckin & Catalano

District 10 (2018)

Holzapfel, McGuckin & Wolfe Legislation Amending Rules of Evidence Regarding Marital Communications Advances

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Bill Changes Marital Communication Privileges During Criminal Trial

In response to a decision by from the New Jersey Supreme Court in the case of State v. Terry, legislation sponsored by the 10th District legislators to amend the rules of evidence to establish a crime-fraud exception to the marital and civil union partnership communications privilege has advanced from the Senate Judiciary Committee.

A bill by Holzapfel, McGuckin & Wolfe would amend the rules of evidence to establish a crime-fraud exception to the marital and civil union partnership communications privilege. (©iStock)

The bill sponsored by Senator Jim Holzapfel, Assemblymen Greg McGuckin and Dave Wolfe amends “The Evidence Act, 1960” which currently provides that no person shall disclose any communication made in confidence between such person and his or her spouse or civil union partner unless both consent to the disclosure.

“The purpose of this bill is to thwart ongoing criminal conspiracies that hide behind an evidentiary privilege designed to protect the sanctity of marriage,” stated Senator Holzapfel.

As part of an investigation into drug trafficking, the Ocean County Prosecutor’s Office, by means of a court authorized wiretap, intercepted phone conversations and text messages between a husband and wife, who attempted to prevent the state from introducing those communications at their trial. The defendants argued that they are protected by the marital communications privilege.

In its current form, this privilege, as defined in the New Jersey Evidence Act, may also be invoked to immunize conversations between spouses and partners about their ongoing and future joint criminal behavior even when these conversations are secured by means of a court authorized wiretap.

“In the case of State v. Terry, the defendants were able to prevent the state from using phone and text conversations which could have changed the outcome of the case,” added Assemblyman McGuckin. “We believe that by amending the statute this will allow law enforcement to use the evidence lawfully obtained through wiretaps when spouses or civil partners are engaging in criminal activities such as drug trafficking as was charged in State v. Terry.”

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