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Legislators Propose Crime Fraud Exception to Spousal Privilege

November 17, 2014 | Posted In Family Law - Family Law |

A few months ago in State v. Terry, the New Jersey Supreme Court urged lawmakers to set limits on existing spousal privilege laws, particularly with respect to those that stipulate when the privilege can be invoked by a defendant in a criminal case. Now, family lawyers in New Jersey report that state legislators have introduced a bill to create a crime-fraud exception to the spousal communication privilege.

Spousal privilege gives a married couple the right to keep conversations between themselves private in some cases, even if the conversation could be incriminating or used as evidence against one partner. Senator Nicholas Scutari, D-Union, introduced the bill in an effort to return this privilege to its original intent. The privilege “was intended to protect the privacy of married couples and the sanctity of marriage,” he said, but now, “in practice…[the privilege] can shield those who have engaged in unlawful acts from criminal prosecution.”

State v. Terry

Scutari also stated that the new bill will recognize the importance of marital privilege and right to privacy between spouses, but will not allow persons who have committed felonies or criminal activity to abuse the privilege to their own benefit. “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,” Scutari noted.

The groundwork for the bill was laid in a recent case, State v. Terry, in which prosecutors attempted to obtain phone calls and text messages between Teron Savoy and his wife, Yolanda Terry. Savoy was accused of leading a drug trafficking network and Terry had been charged with conspiring in the scheme. Investigators used wire taps to intercept the couple’s calls and texts, but Terry and Savoy cited spousal privilege in an effort to keep their conversations private under New Jersey Rule of Evidence 509, which states that “no person shall disclose any communication made in confidence between such person and his or her spouse.”

The state Supreme Court ruled that Rule 509 was applicable to Terry and Savoy, but urged the state to establish a better way to protect privileged conversations while allowing prosecutors to gather evidence against accused criminals. The change in law should “strike an appropriate balance between marital privacy and the public’s interest in attaining justice.”

The New Bill

Scutari’s bill seeks to amend the Evidence Act, which will specify that communications between spouses are not protected if they relate to criminal activity committed by either of the spouses. The bill, S-2411, would establish a crime-fraud exception for spousal privilege, a statute that many other states, including California, New York, Texas, and Illinois, already have in place. Similar stipulations for crime-fraud exceptions already exist for other privileged relationships in New Jersey — physician-patient, cleric-penitent, attorney-client, and mediation.

At Helmer, Conley, and Kasselman, PA, our family lawyers in New Jersey represent clients who have been charged with a crime, or been called to testify against their spouses. If you have questions about your case, contact an HCK lawyer today. 

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