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Change to Spousal Privilege May Be Coming

Under current evidence rules, no person shall disclose any communication made in confidence between such person and his or her spouse. At present, marital privilege can be overcome only in certain circumstances, such as when either spouse waives it in a criminal action. However, on December 15, 2014, the New Jersey State Assembly passed a bill (by a vote of 73-0) that would create a crime-fraud exception to the marital communications privilege.  

This change has come at the request made by the New Jersey Supreme Court in a recent decision wherein a prosecutor was barred from using texts and recorded phone calls between a married couple who were joint participants in a crime. In the opinion, the Supreme Court noted that "the marital communications privilege is meant to encourage marital harmony, not to protect the planning or commission of crimes." The proposed bill nullifies the privilege on communications between spouses or civil union partners "if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communications." The crime-fraud exception already exists in other evidentiary privileges in New Jersey including the attorney-client and the physician-patient privileges. 

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