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NJ law makes spousal communications fair game for prosecutors

Certain communications have always been given protection from prosecutors during criminal proceedings. For example, your communications to your criminal defense attorney, whether spoken or in writing, are confidential cannot be held against you in court.

Previously in New Jersey, this was also true for certain communications between spouses. That is no longer the case, however, after the New Jersey Legislature passed a law excepting spousal communications from "spousal privilege." Spousal privilege, under the New Jersey Rules of Evidence, holds that communications solely between spouses are private and not admissible in court. The new law was enacted in response to a New Jersey Supreme Court ruling in 2014 that found that evidence obtained by police by wiretapping communications between a suspected drug trafficker and his wife could not be used in court.

 

While the state's highest court therefore suppressed the evidence in last year's case and did not allow it to be used to prosecute the couple implicated, it asked the legislature to address the issue by explicitly excepting spousal privilege when both are implicated in planning a crime.

There is already such an exception for crimes involving fraud. 

The legislature complied, amending the New Jersey Rules of Evidence. Governor Chris Christie signed the bill into law this November. The upshot is that spousal communications, if overheard or gathered because of wiretapping, can be used in court to prosecute those accused of committing, or planning to commit, a crime.

If you have been charged with a crime or have questions regarding your rights during criminal prosecution, contact Markowitz & O'Donnell, LLP.

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