New Jersey Seeks to Amend Marital Privilege Restriction on Evidence

New Jersey Senate Considers Law to Limit Marital Privilege Evidence Exception

Husband on phone with wifeUnder current New Jersey law, conversations between spouses may not be used in a criminal prosecution, under what is known as the “marital privilege.” If a former Ocean County prosecutor, now a state senator, can muster the votes, the New Jersey Senate will legislate an exception to that privilege. Many other states have already enacted such an exception.

State Senator James Holzapfel proposed a bill earlier this year that would create a “crime-fraud” exception to the longstanding legal principle. Holzapfel says he was motivated to draft the bill after the New Jersey Supreme Court ruled that evidence obtained in a wiretap against a suspected drug dealer could not be used against him because he was discussing his criminal activity with his wife. In its opinion, the Supreme Court said that the law did not allow the evidence to be admitted at trial, but suggested that the New Jersey legislature change the law.

The marital privilege, also known as spousal privilege, typically involves two separate privileges: a communications privilege and a testimonial privilege. Under the testimonial privilege, a person’s spouse cannot be called to testify in court in an adverse proceeding. The communications privilege, the subject of Holzapfel’s bill, prohibits prosecutors from using any communication between spouses against one of them in a criminal proceeding. Experts say the general purpose of the marital, or spousal, privilege, is to encourage spousal harmony and to avoid the situation where one spouse must condemn, or be condemned by, a spouse.

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