Scutari Introduces Bill Addressing Marital Privilege in Criminal Cases

Senator Nicholas P. Scutari (D-Middlesex, Somerset and Union)

TRENTON – Senate Judiciary Chairman Nicholas P. Scutari (D-Union) this week introduced a bill to establish a crime-fraud exception to the marital communications privilege.

“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,” said Senator Scutari. “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.”

The bill (S2411) would implement a recommendation made by the New Jersey Supreme Court in July to create a crime-fraud exception to the marital communications privilege. The court made the recommendation as part of a ruling, in State v. Terry, that found text messages and phone conversations between a husband and wife obtained through a court-approved wiretap were protected under the law.

The legislation would amend “The Evidence Act of 1960”, establishing that communications between spouses in a criminal action or proceedings are not privileged if they relate to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of communication. Currently, the communications can only be used in certain circumstances, including when both spouses consent to the disclosure, when the communication is relevant to an issue in action between them, or involves a criminal action or proceeding in which either spouse consents, among others.

“A number of states have already taken steps to update their evidentiary rules and it is clear that ours need to be revisited,” said Scutari. “This privilege was not intended to immunize conversations between spouses or partners who engage in criminal activity together, yet we have seen it used in this way. This strikes an appropriate balance between privacy and the public’s interest in attaining justice.”

Senator Scutari introduced the bill Monday. Assemblywoman Stender is expected to introduce the companion bill in the Assembly.