Marital Privilege and The Wiretap Act – State v. Terry & Savoy

Today, the New Jersey Appellate Division published its decision in the case of State v. Terry & Savoy (husband and wife), which addressed the issue of whether communications between husband and wife that are intercepted through the NJ Wiretap and Electronic Surveillance Control Act (“the Wiretap Act”), N.J.S.A. 2C:156A -1 to -34, are protected by the marital communications privilege.

The matter came before the NJ Appellate Division by way of an appeal brought by the defendants (husband and wife) from the denial of a motion in limine to exclude certain cellphone calls and text messages between them that were intercepted by wiretaps. The critical argument was that the communications were protected by the marital privilege. The Appellate Division agreed and reversed the Trial Division’s ruling.

By way of background, law enforcement authorities were apparently investigating Savoy, who was believed to be the leader of a drug distribution network in Monmouth and Ocean Counties. In that network, he allegedly directed multiple individuals, including his wife, Terry. Beginning in October 2010, the State obtained orders authorizing wiretaps on two cellular telephones used by Savoy. Through the wiretap, the State learned that Savoy often directed Terry to collect drug proceeds and handle various other aspects of the drug distribution operation. Savoy and Terry (along with a number of other co-defendants) were subsequently arrested and charged with a host of drug-related offenses, including Conspiracy to Possess With Intent to Distribute Heroin and Conspiracy to Possess With Intent to Distribute Heroin. Savoy was also charged with being the Leader of a Drug Trafficking Network.

At the time of trial, the State confirmed its intent to offer (as evidence of the drug distribution operation and underlying conspiracy) certain cellphone conversations and text messages between Savoy and Terry. Savoy and Terry filed a motion in limine to prevent such evidence from being offered at the time of trial, claiming that the evidence was privileged marital communications. The Trial Division denied the motion and defendants appealed.

The marital communications privilege was enacted in NJ in 1960. It is contained, in its current form, within N.J.R.E. 509 and provides, in pertinent part:
No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall 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 consents to the disclosure…

While there are certainly cases in which the NJ Supreme Court has held that marital communications can lose their privilege when overheard by third parties, there is a clear distinction between the (arguably) voluntary involvement of a third party in communications and the involuntary interception of communications through the Wiretap Act.

As such, the Appellate Division concluded that interception does not cause marital communications to lose their privileged character, despite their content, and reversed the Trial Division’s decision.

Click here to read the opinion in its entirety.

The interesting issue, however, is whether the Legislature will now add a crime-fraud exception to the marital privilege, as urged by both the Appellate Division and Trial Division. Stay tuned…