McKeon, Lagana & Spencer Bill to Establish Crime-Fraud Exception to Marital Privilege Gains Final Legislative Approval

Legislation Assembly Democrats John McKeon, Joseph Lagana and L. Grace Spencer sponsored to establish a crime-fraud exception to marital and civil union partnership privileges recently received final legislative approval and now heads to the governor’s desk.

The bill (A-3636) stems from the New Jersey Supreme Court’s ruling in State v. Terry, which proposed an amendment to the New Jersey Rules of Evidence to include a crime-fraud exception to the communications privilege that exists between couples who are married or in a civil union.

“This 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 existing marital and civil union privilege arises from the strong public policy in the state of encouraging free and uninhibited communication between spouses and civil union partners, and, consequently, of protecting the sanctity and tranquility of marriages and civil unions. 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 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,” said Lagana (D-Bergen/Passaic). “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.”

“Everyone should feel free to speak confidentially with his or her spouse or partner, there are some who engage in criminal behavior and then look to abuse that marital privilege as a means of protecting their significant other,” said Spencer (D-Essex). “This legislation will reform the law in an effort to advance both justice and marital and civil union privacy.”

The bill passed unanimously in both houses of the legislature.