Supreme Court Sides with OCPO: No Spousal Immunity in Criminal Activity

oc prosecutors offc tls photo2Ocean County Prosecutor Joseph D. Coronato announced that his office presented a successful challenge to the New Jersey Supreme Court regarding the ruling in State v. Yolanda Terry and Ternon Savoy. In May of 2013 an appeals court refused to allow prosecutors to introduce evidence at trial consisting of communications between a husband and wife proving involvement in a crime.

The appeal stemmed from the 2013 case in which it is alleged that Teron Savoy was the leader of a network distributing drugs in Ocean and Monmouth Counties. Investigators intercepted phone communications between Savoy and his wife, Yolanda Terry, in furtherance of their drug trafficking crimes. The defendant’s attorneys attempted to exclude these communications from their trial claiming that they fell within New Jersey’s marital communication privilege which generally excludes from court communications made between spouses. The trial judge ruled the evidence admissible, however, stating that since the communications were made in furtherance of crimes, they were “not worthy of protection.”

But the trial judge’s decision was reversed on appeal. The Appellate Division ruled that the conversations were prohibited from use at trial by the marital communications privilege, and that there is no exception to that privilege in New Jersey even where the communications are in aid of a crime.

Yesterday, the New Jersey Supreme Court referred to the Legislature a proposed “crime fraud exception” to Evidence Rule 509, the marital communications privilege which, via its plain language, prohibits disclosure of any communication made in confidence between spouses, even in furtherance of a crime.

The Supreme Court reasoned that under the rule as it stands now, because the protected communications between the spouses in this case involved criminal activities they were jointly planning or committing, the public’s interest in attaining justice will be undermined via application of the privilege. Therefore, the Court accepted the Prosecutor’s contention that a crime fraud exception should be adopted in this State, and proposed an amendment to Evidence Rule 509 as follows: “There is no privilege under this rule . . . in a criminal proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses were joint participants at the time of the communication.” The Court recognized that safeguarding marital harmony via protection of criminal communications is outweighed by law enforcement purposes in investigating and prosecuting crimes.

Because this is a “fundamental change” in the rules of evidence with “serious and far-reaching” consequences, the Court took the rare step of referring its proposed language to the Legislature under the Evidence Act of 1960, N.J.S.A. 2A:84-38, which requires such a referral for anything except minor or non-consequential changes to the Rules of Evidence. Further, the Court, rejecting the defendants’ position, recognized that should the exception be passed before defendants’ trial begins, the new exception may apply to this case and the communications introduced at trial, subject to defendants’ attempts to prohibit their introduction under other legal theories.

Ocean County Prosecutor Joseph D. Coronato said at the time he directed his office to challenge the appeals court ruling, “The marital communications privilege suppresses relevant evidence so as to protect the tranquility of a marriage, but where evidence of crimes is withheld from a jury, there is an obvious detriment to the public. The Supreme Court should decide whether the privilege applied in this case, and if so, whether a crime or fraud exception to the privilege would better serve the public’s welfare.”

Since the Supreme Court has now decided that question in the affirmative, the Legislature will consider the language proposed by the Court in creating the new crime fraud exception. [TLS]

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