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McKeon Bill to Establish Crime-Fraud Exception to Marital Privilege Released by Assembly Committee

Legislation Assembly Judiciary Committee Chairman John McKeon sponsored to establish a crime-fraud exception to marital and civil union partnership privileges was released Monday by an Assembly panel.

The bill (A-3636) stems from, State v. Terry, 218 N.J. 224 (2014), by the New Jersey Supreme Court, which proposed an amendment to the New Jersey Rules of Evidence to include a crime-fraud exception to the communications privilege.

“The proposed change would strike an appropriate balance between marital and civil union privacy and the public’s interest in attaining justice,” said McKeon (D-Essex/Morris). “It’s a common sense change that continues to respect marital privileges while also keeping the need for justice in mind.”

Currently, state law provides that 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, or unless the communication is relevant to an issue in an action between them, or in a criminal action or proceeding in which either spouse or partner consents to the disclosure, or in a criminal action or proceeding for which a testimonial privilege does not apply. This privilege against disclosure does not terminate with divorce, dissolution of civil union, or separation.

“The marital and civil union partnership communications privilege arises from the strong public policy in this state of encouraging free and uninhibited communication between spouses and civil union partners, and, consequently, of protecting the sanctity of marriages and civil unions,” McKeon said. “However, in its current form, this privilege also unintentionally serves to immunize conversations between spouses and partners about their ongoing and future joint criminal behavior.”

The bill was released by the Assembly Judiciary Committee chaired by McKeon.

“Amending the statute to conform to the Supreme Court’s proposal will help prevent the marital and partnership privilege from being used for the unintended consequence of immunizing the criminal activity of spouses and partners who invoke the privilege,” McKeon said. “Meanwhile, we will be preserving the general privilege and its intended purpose of protecting and encouraging free and uninhibited communication and confidence between spouses and civil union partners.”