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Ocean County Drug Case Prompts NJ Supreme Court Call for Marital Protection Exemption

Information between a husband and wife charged with drug trafficking in Ocean County would be introduced as evidence if New Jersey lawmakers act on a state Supreme Court recommendation before the trial resumes.

The proposed change to the marital communication privilege would have far-reaching ramifications for criminal cases in which spouses are defendants.

According to information from county Prosecutor Joseph D. Coronato’s office, justices today reconsidered an appellate ruling that prevented admission of phone conversations between Ternon Savoy and Yolanda Terry.

The high court today called on the Legislature to create a “crime fraud exception” to Evidence Rule 509, which bars disclosure of confidential spousal communication.

Savoy was charged in 2013, accused of leading a drug ring in Ocean and Monmouth counties. The attempt by prosecutors to bolster their case with intercepted calls was blocked by defense lawyers. The trial judge overruled, contending that the role of the dialogues in light of the charges left them “not worthy of protection,” authorities said.

Appellate judges reversed the ruling, reasoning that New Jersey’s martial communications privilege has no mitigating clause.

Coronato directed staffers to challenge the decision. “The marital communications privilege suppresses relevant evidence so as to protect the tranquility of a marriage,” Coronato said in a statement, “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.”

The high court today determined that the interest of marital harmony at the heart of  protected communications is outweighed by public good when the dialogues involve suspected criminal activities.

In accepting the Prosecutor’s contention, justices proposed an amendment stating:

“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.”

According to Coronato’s office, the Court viewed its proposal with enough gravity to forward it to the Legislature under the Evidence Act of 1960 (N.J.S.A. 2A:84-38), which is required for all but the most inconsequential alterations to the Rules of Evidence.

The justices also recommended implementation of the change in the Savoy-Terry trial if it is enacted before hearings continue.

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