Communications Between Spouses: Are They Privileged When Wiretapped?

by Wilentz, Goldman & Spitzer P.A.
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The New Jersey Supreme Court decided that a couple’s private communications remain protected under the marital communication privilege pursuant to N.J.R.E. 509 despite those communications being wiretapped by State investigators. In State v. Terry, the couple was indicted along with twenty other individuals on charges of conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and heroin. When the State moved to introduce evidence of wiretapped communications between the husband and wife, Teron Savoy and Yolanda Terry, the couple claimed that the communications were protected by marital privilege. The trial court denied the couple’s motion and stated that since the communications were disclosed to a third party, the state investigators, it had lost its privilege. Further, the trial court noted that the privilege was not meant to protect crimes or frauds. The defendants appealed and the Appellate Division reversed the trial court’s determination which was affirmed by the New Jersey Supreme Court.

The Court  reasoned that the public policy of the N.J.R.E. 509 is to encourage free and open communication between spouses and that the State’s contention that communications between husband and wife lose its privilege when intercepted by a wiretap would undermine the social policies of any privilege. The Court noted that if it had not been for the wiretap the communications would have remained privileged and the defendants could not have been compelled to disclose it. The Court concluded that a communication “does not lose its privileged character because it is intercepted by a wiretap.”

Due to the particular facts of this case, the Court noted that the policy behind the marital privilege is to protect marital harmony not to protect the planning or commission of crimes. In its opinion, the New Jersey Supreme Court came up with a crime-fraud exception to the privilege which they submitted to the New Jersey legislature for approval. Stay tuned to see what happens in the New Jersey Legislature on this issue.

Do you think a communication between a husband and wife should be protected by the marital privilege regardless of the communication’s content?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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