Newark, NJ- We recognize marriages are unique and privileged relationships; spouses share with each other intimate and private information they would never share with others. They have the expectation that profoundly personal secrets are confidential and will not to be shared with others. This trust is intrinsic to a strong and stable marriage since your spouse is supposed to be your most trusted ally.
Our laws, like our society, recognize the intimacy of spousal communication, and consider these communications to be privileged, much like communication between, doctors and patients, attorneys and clients, clergy and parishioners. There is an understanding that communications between spouses and other privileged relationships could cause harm to an individual or relationship if exposed. And, in certain circumstances, this confidential information could also lead to an arrest and criminal prosecution.
Under federal law and New Jersey law, one spouse cannot be compelled to testify against the other spouse in criminal proceedings, but not all of their communications are private. For in instance, conversations that can be overheard by a third party are not privileged.
To assert spousal privilege in New Jersey criminal proceedings, a couple must be married at the time of trial. There are many exceptions to state’s spousal privilege rules, so when you are facing criminal charges its important you seek the advice of a New Jersey criminal defense attorney to determine how these laws apply in your case.
Of course, each state reserves the right to amend laws pertaining to spousal privilege and frequently does so.
In, State v. Yolanda Terry and Teron Savoy, the New Jersey Supreme Court was called on to clarify if text messages and other cell phone communications between a married couple can be considered privileged information and if that information can be used as evidence in criminal trials.
Both Savoy and Terry were on trial for drug trafficking and other related charges. Because police suspected the couple of criminal activity, they obtained a warrant under the New Jersey Wiretapping and Electronic Surveillance Control Act and began monitoring the cell phone communications between Savoy, Terry and some of their associates.
One day after intercepting communication between Terry and Savoy, police pulled over Savoy and one of his associates, and found them in possession of drugs and cash. During the arrest, police seized two additional cell phones in Savoy’s possession. Later that day, police intercepted text messages sent on one of the seized phones in which Savoy instructed Terry to get something out of a car, which had also been seized.
After obtaining a warrant based on the intercepted texts, police searched the car found drugs hidden inside that they missed in their prior search. Finding these drugs led to additional charges and more jail time for Savoy and Terry.
As part of their criminal defense, Savoy and Terry asserted the evidence against them was inadmissible because their communications were protected by spousal privilege under the New Jersey’s Rules of Evidence. The trial judge allowed the communications to be entered into evidence on the basis that they were observed by a third party—in this case, the police officer—and therefore did not count as privileged communication.
Savoy and Terry appealed the decision and an appellate court later determined their communication was still privileged even though law enforcement had a wiretap. The New Jersey Supreme Court agreed with this the Appellate Division, but recommended the legislature amend New Jersey’s Rules of Evidence to include a crime-fraud exception to the marital privelege.
As you can see by the NJ Supreme Court case, not all communication between a married couples is privileged, and the rules governing this privilege are confusing and complicated. If you are facing criminal charges, contact my Newark office so we can talk about your charges, an effective defense strategy and whether spousal privilege applies in your case.
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