Bill To Change Spousal Communication Privileges During a Criminal Trial

A case against an Ocean County married couple alleged drug trafficking is prompting state legislators to introduce a bill allowing communication between spouses and civil union of continuing criminal activity to be used as evidence.Following a recommendation from the New Jersey State Supreme Court, 10^th District Legislators, Senator Jim Holzapfel and Assemblymen Greg McGuckin and Dave Wolfe, will introduce a bill to amend the rules of evidence establishing an exception to the martial and civil union partnership communication privilege.  The rules will amend “The Evidence Act, 1960” which states “no person shall disclose any communication made in confidence between a person and his or her spouse or civil union partner unless both consent to the disclosure.”

“When the husband and wife are both engaged in ongoing criminal activity, that privilege should supersede the right of the public and state to present that testimony to the jury,” said Assemblyman Gregory McGuckin.

As part of an investigation into drug trafficking, the Ocean County Prosecutor’s Office by means of a court authorized wiretap, intercepted phone conversations and text messages between a husband and wife, who attempted to prevent the state from introducing those communications at their trial.  The defendants argued that they are protected by the marital communications privilege.

McGuckin noted while spousal confidentiality is usually legally protected, there is legal precedent for other forms of protected conversations to be submitted as evidence if both parties are trying to further criminal activity.

“The courts have waived attorney/client privilege when the attorney was conspiring additional criminal acts…so we think it is appropriate to address marital privilege in the same way,” said McGuckin.

The Assemblyman is hopeful the amended bill can be go through committee and passed into law in time for the couple’s retrial.

“And rules of evidence are not criminal statutes so there wouldn’t be a problem with double jeopardy or anything like that.”