State v. Yolanda Terry and Teron Savoy

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Yolanda Terry and Teron Savoy (A-71-12) (072775)
Argued March 18, 2014 -- Decided July 22, 2014
RABNER, C.J., writing for a unanimous Court.
The issue in this appeal is whether State intercepted phone conversations and text messages between a
husband and wife, pursuant to a court-approved wiretap, are protected communications under the marital
communications privilege. A second issue raised in this case is whether New Jersey should adopt a crime-fraud
exception to the marital communications privilege.
At all times relevant to this case, defendants Teron Savoy and Yolanda Terry have been married. In the fall
of 2010, the Ocean County Prosecutor’s Office was investigating Savoy as the alleged leader of a drug trafficking
network. As part of the investigation, the State obtained court orders under the New Jersey Wiretapping and
Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act or Act) authorizing wiretaps of two
cell phones Savoy used. Among many hours of interceptions, the State recorded two or three phone calls and
intercepted five text messages between Savoy and Terry. In those communications, Savoy asked Terry to pick up
money from co-defendant Chardel Holman. The State alleges that Savoy had previously fronted heroin to Holman.
The State also alleges that on October 17, 2010, the police stopped a Lexus in which Savoy was a passenger.
Authorities seized three bags of heroin, $900, and two other cell phones from Savoy. In an intercepted text message
later in the day, Savoy asked Terry to retrieve something from the seized car. The following day, after getting a
warrant, officials searched the Lexus and found twelve grams of heroin.
In June 2011, an Ocean County Grand Jury indicted Savoy, Terry, Holman, and twenty others on charges
of conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and heroin. Savoy is also
charged with being a leader of a drug trafficking network and possession of heroin with intent to distribute. Savoy
and Terry moved to prevent the State from introducing at trial the phone conversations and text messages between
them, arguing that the communications were protected by the marital communications privilege, N.J.R.E. 509. In a
detailed oral opinion, the trial judge denied the motion. The court found that the communications were admissible at
trial because any confidential communication would be disclosed by a third party -- in this case, a law enforcement
officer -- and not a spouse. The trial court also discussed the crime-fraud exception to the marital communications
privilege, which many federal and state courts have adopted, and concluded that “any communication made in this
case in furtherance of drug trafficking is [not] worthy of protection.”
Defendants appealed. In a published opinion, the Appellate Division reversed. State v. Terry, 430 N.J.
Super. 587 (App. Div. 2013). The panel determined that under Rule 509 and the Wiretap Act, the communications
in question were protected. In addition, the panel noted that strong public policy concerns supported applying a
crime-fraud exception to the marital communications privilege. The panel concluded, however, that it could not
bypass the procedures of the Evidence Act of 1960, N.J.S.A. 2A:84A-33 to -44, and unilaterally adopt such an
exception. The Supreme Court granted the State’s motion for leave to appeal. 214 N.J. 233 (2013).
HELD: A confidential marital communication protected under the marital communications privilege does not lose
its privileged status by virtue of a wiretap under the New Jersey Wiretapping and Electronic Surveillance Control
Act. The Court, however, proposes a crime-fraud exception to the marital communications privilege and, pursuant
to the Evidence Act of 1960, transmits it for approval by a joint resolution of the Legislature and for the Governor’s
signature.
1. The Legislature enacted the modern form of the marital communications privilege as part of the Evidence Act of
1960. The privilege also appears in Rule 509 of the Rules of Evidence. The privilege “stems from the strong public
policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the
1
sanctity and tranquility of marriage.” State v. Szemple, 135 N.J. 406, 414 (1994). Outside the context of the
Wiretap Act, the State’s position that the marital communications privilege is personal to the spouses and does not
prevent a third person from testifying, is correct. A marital communication loses its privileged character if it is
overheard by a third party, such as a neighbor, “either accidentally or by eavesdropping.” Terry, supra, 430 N.J.
Super. at 597. However, the State’s position, in effect, that wiretappers who act pursuant to a court order are no
different from neighbors and other private eavesdroppers, is not supported by the language and history of the
Wiretap Act. (pp. 7-10)
2. The Wiretap Act specifically provides that “[n]o otherwise privileged wire, electronic or oral communication
intercepted in accordance with, or in violation of, the provisions of this act, shall lose its privileged character.”
N.J.S.A. 2A:156A-11 (last sentence of section 11). As applied to the marital communications privilege, the statute’s
plain language appears to mean that a confidential communication between two spouses, which would have
remained privileged had there been no interception, does not lose its privileged status by virtue of a wiretap. But for
the State’s act of listening, pursuant to a wiretap order, the marital communication would have remained a private
conversation between two spouses. The Act’s history reveals that a state-authorized wiretap, unlike a private
eavesdropper, does not destroy the privilege. The State’s contrary approach would effectively read the last sentence
of section 11 out of the Wiretap Act. Thus, the Court agrees with the Appellate Division that a confidential marital
communication protected by Rule 509 “does not lose its privileged character because it is intercepted by a wiretap.”
Terry, supra, 430 N.J. Super. at 600. Section 11 of the Wiretap Act preserves the privilege. (pp. 10-17)
3. The Court agrees that the crime-fraud exception should apply to communications between spouses. The societal
purpose behind the privilege is simply not served by safeguarding conversations between spouses about their joint
criminal activities. The current version of Rule 509, in effect, immunizes conversations between spouses about their
ongoing and future joint criminal behavior. Many courts, including all of the eleven federal circuits to consider the
question, have recognized a crime-fraud exception to the privilege. The Appellate Division also catalogued multiple
states that have adopted a crime-fraud exception by statute, rule, or case law. In addition, other evidentiary
privileges in New Jersey -- including the physician-patient and cleric-penitent -- recognize a crime-fraud exception.
The marital communications privilege should be updated to strike an appropriate balance between marital privacy
and the public’s interest in attaining justice. Specifically, Rule 509 should be amended to include a crime-fraud
exception that is similar to the exceptions that apply in federal and state courts throughout the nation as well as other
evidentiary rules in New Jersey. (pp. 17-20)
4. For relatively minor changes to the Rules of Evidence, the Court has historically acted on its own. By contrast,
when a “fundamental change” with “serious and far-reaching” consequences is at stake, the Court should follow the
procedures of the Evidence Act. State v. D.R., 109 N.J. 348, 352, 375-76 (1988). The Evidence Act reflects a
“pragmatic compromise” among the branches of government and calls for the collaborative effort of all three to
adopt significant changes to the Rules of Evidence. Id. at 352, 374-76. Adding a crime-fraud exception to the
marital communications privilege would amount to a “fundamental change” with “serious and far-reaching”
consequences. Id. at 352, 375-76. The Court therefore invokes the procedures of the Evidence Act and declines to
adopt the change on its own. Pursuant to N.J.S.A. 2A:84A-38, the Court proposes a crime-fraud exception to the
marital communications privilege at Appendix A, and transmits it for approval by a joint resolution of the
Legislature and for the Governor’s signature. More specifically, the marital communications privilege should not
protect a communication that relates to an ongoing or future crime or fraud in which the spouses were joint
participants at the time of the communication. If the Legislature and Governor approve a crime-fraud exception to
Rule 509 before defendants’ trial begins, and if the exception were found to be available in this case, it would then
be up to the trial court to determine if the exception applies in light of the facts of this case. At this time, the Court
does not opine on any constitutional ex post facto question. (pp. 20-27)
The judgment of the Appellate Division is AFFIRMED. In addition, the Court forwards to the Senate and
General Assembly, for their approval by joint resolution, and to the Governor for his signature, a crime-fraud
exception to the marital communications privilege.
JUSTICES LaVECCHIA, ALBIN, PATTERSON and FERNANDEZ-VINA and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-71 September Term 2012
072775
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
YOLANDA TERRY and TERON
SAVOY,
Defendants-Respondents.
Argued March 18, 2014 – Decided July 22, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 430 N.J. Super. 587 (2013).
William Kyle Meighan, Assistant Prosecutor,
argued the cause for appellant (Joseph D.
Coronato, Ocean County Prosecutor, attorney;
Samuel J. Marzarella, Supervising Assistant
Prosecutor, of counsel).
Brian J. Di Stefano argued the cause for
respondent Teron Savoy.
John L. Brown, Jr., argued the cause for
respondent Yolanda Terry.
CHIEF JUSTICE RABNER delivered the opinion of the Court.
As part of a criminal investigation, the State intercepted
phone conversations and text messages between a husband and
wife, pursuant to a court order. We must decide whether those
communications are protected under the marital communications
privilege.
1
Rule 509 of the Rules of Evidence embodies the State’s
longstanding marital communications privilege. The rule
provides that “[n]o person shall disclose any communication made
in confidence between such person and his or her spouse.”
N.J.R.E. 509. Underlying the privilege are the well-settled
public policies to encourage spouses to share confidences and to
protect marital harmony and privacy. However, if a bystander or
some other private third party overhears a conversation between
spouses, generally, the privilege is lost.
State investigators in this matter listened to and reviewed
marital communications after they obtained a court order under
the New Jersey Wiretapping and Electronic Surveillance Control
Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act or Act). The
language and history of the Act reveal that the Legislature
intended to keep in place the policies that protect otherwise
privileged communications between spouses. See N.J.S.A.
2A:156A-11. As a result, conversations between spouses that
would otherwise be privileged cannot be intercepted or
introduced in evidence under current law. We agree with and
affirm the judgment of the Appellate Division in that regard.
This case raises a second issue as well. In its present
form, Rule 509 protects communications between spouses about
criminal activities they are jointly planning or committing.
That aspect of the privilege does not serve its purpose and
2
undermines the public’s interest in attaining justice. We
therefore propose a crime-fraud exception to the marital
communications privilege, similar to the approach that eleven
federal circuits and many states have adopted.
Because the proposed amendment presents a fundamental
change to the Rules of Evidence with far-reaching consequences,
we follow the procedures outlined in the Evidence Act of 1960:
we submit a proposed crime-fraud exception –- set forth at
Appendix A –- to the Senate and General Assembly, for their
approval by joint resolution, and to the Governor for his
signature. See N.J.S.A. 2A:84A-38.
I.
The following facts are based on the State’s proffer to the
trial court and are not in dispute. At all times relevant to
this case, defendants Teron Savoy and Yolanda Terry have been
married. In the fall of 2010, the Ocean County Prosecutor’s
Office was investigating Savoy as the alleged leader of a drug
trafficking network. As part of the investigation, the State
obtained court orders that authorized wiretaps of two cell
phones Savoy used. State v. Terry, 430 N.J. Super. 587, 590
(App. Div. 2013).
Among many hours of interceptions, the State recorded two
or three phone calls and intercepted five text messages between
Savoy and Terry. Id. at 591. In those communications, Savoy
3
asked Terry on October 17, 2010 to pick up money from co-
defendant Chardel Holman. The State alleges that Savoy had
previously fronted heroin to Holman. Id. at 590.
The State also alleges that on October 17, 2010, the police
stopped a Lexus in which Savoy was a passenger. Authorities
seized three bags of heroin, $900, and two other cell phones
from Savoy. Ibid. In an intercepted text message later in the
day, Savoy asked Terry to retrieve something from the seized
car. The following day, after getting a warrant, officials
searched the Lexus and found nearly twelve grams of heroin.
Ibid.
In June 2011, an Ocean County Grand Jury indicted Savoy,
Terry, Holman, and twenty others. The indictment charges them
with conspiracy to manufacture, distribute, and possess with
intent to distribute cocaine and heroin, contrary to N.J.S.A.
2C:5-2, 2C:35-5a, and 2C:35-5b(1). Savoy is also charged with
being a leader of a drug trafficking network, N.J.S.A. 2C:35-3,
and possession of heroin with intent to distribute, N.J.S.A.
2C:35-5a(1) and 2C:35-5b(3).
Savoy and Terry moved to prevent the State from introducing
at trial the phone conversations and text messages between them.
They argued that the communications were protected by the
marital communications privilege, N.J.R.E. 509. In a detailed
oral opinion, the trial judge denied the motion. The court
4
found that the communications were admissible at trial because
any confidential communication would be disclosed by a third
party -- in this case, a law enforcement officer –- and not a
spouse. The trial court also discussed the crime-fraud
exception to the marital communications privilege, which many
federal and state courts have adopted, and concluded that “any
communication made in this case in furtherance of drug
trafficking is [not] worthy of protection.”
Defendants appealed. In a published opinion, the Appellate
Division reversed. Terry, supra, 430 N.J. Super. at 610. The
panel rejected defendants’ claim that the State had to show a
“special need” to wiretap Savoy’s cell phones under N.J.S.A.
2A:156A-11. Id. at 593-95. That issue is not part of this
appeal.
The panel also rejected the State’s argument that the
marital communications privilege did not apply. The Appellate
Division reviewed Rule 509 and the Wiretap Act and concluded
that the communications in question were protected. Id. at 596-
600. Finally, the panel noted that strong public policy
concerns supported applying a crime-fraud exception to the
privilege. Id. at 602. The panel concluded, however, that it
could not bypass the procedures of the Evidence Act of 1960,
N.J.S.A. 2A:84A-33 to -44, and unilaterally adopt such an
exception. Terry, supra, 430 N.J. Super. at 605-10.
5
We granted the State’s motion for leave to appeal. 214
N.J. 233 (2013).
II.
The State argues that the marital communications privilege
only prevents one spouse from disclosing confidential
communications with the other. It contends that the privilege
does not bar a third party from testifying “about statements
overheard as a result of a valid wiretap order.” The State
maintains that certain language in the Wiretap Act -- “[n]o
otherwise privileged . . . communication . . . shall lose its
privileged character,” N.J.S.A. 2A:156A-11 –- does not prevent
an investigative agent from testifying about an intercepted
communication.
Although the State submits that the marital communications
privilege does not apply in this case, it argues that New Jersey
should adopt a crime-fraud exception to the privilege for use in
future cases.
Defendants submitted a joint supplemental brief in which
they ask this Court to affirm the judgment of the Appellate
Division. Defendants argue that the Wiretap Act expressly bars
interception of privileged communications, like the confidential
marital communications in this case.
Defendants also argue that New Jersey should not adopt a
crime-fraud exception. If the Court decides otherwise,
6
defendants submit that it must follow the procedures in the
Evidence Act. In any event, defendants contend that any
exception should not apply to this case because the State has
not proven that Terry was a participant in the alleged criminal
activity.
III.
A.
We first address the State’s argument that the privilege
does not prevent the State from presenting evidence of
confidential communications between spouses, which were
intercepted under a wiretap order. The Appellate Division
rejected that claim. We discuss the panel’s ruling at length
because we affirm substantially for the reasons contained in
Judge Leone’s thoughtful opinion.
The Legislature enacted the modern form of the marital
communications privilege as part of the Evidence Act of 1960.
See L. 1960, c. 52, § 22 (codified at N.J.S.A. 2A:84A-22). The
privilege also appears in Rule 509 of the Rules of Evidence.
The current version of the rule provides in part as follows:
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, or in a criminal
7
action or proceeding coming within [Rule
501(2)].
[N.J.S.A. 2A:84A-22; N.J.R.E. 509.]1
The marital communications privilege “stems from the strong
public policy of encouraging free and uninhibited
communication between spouses, and, consequently, of protecting
the sanctity and tranquility of marriage.” State v. Szemple,
135 N.J. 406, 414 (1994). The privilege has traditionally been
viewed as “essential to the preservation of the marriage
1
In addition to the marital communications privilege, New Jersey
recognizes a spousal testimonial privilege, which provides that
[t]he spouse or one partner in a civil union
couple of the accused in a criminal action
shall not testify in such action except to
prove the fact of marriage or civil union
unless (a) such spouse or partner consents,
or (b) the accused is charged with an
offense against the spouse or partner, a
child of the accused or of the spouse or
partner, or a child to whom the accused or
the spouse or partner stands in the place of
a parent, or (c) such spouse or partner is
the complainant.
[N.J.S.A. 2A:84A-17; N.J.R.E. 501(2).]
The spousal privilege applies only to criminal cases. Also,
“[t]he spousal privilege, unlike the marital communications
privilege, is not limited to confidential marital exchanges.
Unless one of the exceptions applies, all testimony is barred
except that bearing on the fact of the marriage.” State v.
Mauti, 208 N.J. 519, 534 (2012). In addition, the marital
communications privilege continues to protect confidential
communications made during the marriage even if the parties
divorce, see id. at 533; N.J.R.E. 509; the spousal privilege
ceases to apply once the marriage ends, State v. Mauti, 416 N.J.
Super. 178, 193 (App. Div. 2010), aff’d, Mauti, supra, 208 N.J.
519; State v. Brown, 113 N.J. Super. 348, 353 (App. Div. 1971).
8
relationship.” Wolfle v. United States, 291 U.S. 7, 14, 54 S.
Ct. 279, 280, 78 L. Ed. 617, 620 (1934) (citations omitted).
One prominent commentator advances another rationale for the
privilege: “All of us have a feeling of indelicacy and want of
decorum in prying into the secrets of husband and wife.” See 1
McCormick on Evidence § 86 at 524 (Broun ed., 7th ed. 2013).
The State, relying on the language of Rule 509 and on
Szemple, supra, 135 N.J. at 417, contends that the marital
communications privilege is personal to the spouses and does not
prevent a third person from testifying. Outside the context of
the Wiretap Act, the State’s position is correct; a marital
communication loses its privileged character if it is overheard
by a third party “either accidently or by eavesdropping.”
Terry, supra, 430 N.J. Super. at 597 (citing Szemple, supra, 135
N.J. at 415 (quoting 1 McCormick on Evidence § 82 at 302-03
(John W. Strong ed., 4th ed. 1992))). The involvement of a
third party, in essence, undermines the rule’s requirement of
confidentiality. Ibid. (citing Szemple, supra, 135 N.J. at
417). As a result, if a neighbor overhears a conversation, or a
friend reads a letter from one spouse to another, those
communications are no longer made in confidence, and neither
spouse can invoke the privilege to prevent disclosure by the
third party. See Szemple, supra, 135 N.J. at 416-20.
9
The State, in effect, argues that wiretappers who act
pursuant to a court order are no different from neighbors and
other private eavesdroppers. The language and history of the
Wiretap Act, which guide our determination, reveal that the
Legislature intended just the opposite.
B.
To give effect to the Legislature’s intent, we begin with
the words of the statute. L.A. v. N.J. Div. of Youth and Family
Servs., 217 N.J. 311, 324 (2014) (citations omitted). The
Wiretap Act specifically provides that “[n]o otherwise
privileged wire, electronic or oral communication intercepted in
accordance with, or in violation of, the provisions of this act,
shall lose its privileged character.” N.J.S.A. 2A:156A-11
(section 11). As applied to the marital communications
privilege, the statute’s plain language appears to mean that a
confidential communication between two spouses, which would have
remained privileged had there been no interception, does not
lose its privileged status by virtue of a wiretap.
The State interprets section 11 differently. It argues
that because the privilege is personal to spouses alone, and a
third party may testify about an overheard conversation under
Rule 509, an intercepted conversation recounted by an
investigator is not “otherwise privileged” within the meaning of
section 11. To the extent the text is ambiguous, we examine the
10
Act’s history for further guidance. State v. O’Driscoll, 215
N.J. 461, 474 (2013).
Several Senators introduced legislation in 1968, S. 943,
192 Leg. (Nov. 15, 1968), which was enacted as the Wiretap Act
the following year, L. 1968, c. 409. The Act outlined a process
that law enforcement officers must abide by when they apply for
a wiretap order. State v. Ates, 217 N.J. 253, 266 (2014).
The last sentence of section 11 of the Act has been largely
unchanged since the bill’s introduction. Once again, it
provides that “[n]o otherwise privileged wire, electronic or
oral communication intercepted in accordance with, or in
violation of, the provisions of this act, shall lose its
privileged character.” N.J.S.A. 2A:156A-11. The Legislature
inserted the word “electronic” in 1993. L. 1993, c. 29, § 10.
The remaining language in the sentence appeared in the original
bill. Compare L. 1968, c. 409, with N.J.S.A. 2A:156A-11.
The sponsors’ statement to the Senate bill explained that
it was modeled after two sources: (a) the federal wiretap act,
specifically Title III of the Omnibus Crime and Safe Streets
Act, 18 U.S.C.A. §§ 2510-2520, which “established minimum
standards for federal and state law enforcement officials to
follow when seeking to intercept wire, oral, and electronic
communications,” Ates, supra, 217 N.J. at 266 (citing 18
U.S.C.A. § 2516(2)); and (b) a model state statute prepared by
11
Professor G. Robert Blakey of the University of Notre Dame Law
School. S. 943 (Sponsors’ Statement), 192 Leg. (Nov. 15, 1968).
We therefore look to both sources.
The last sentence of section 11 mirrored the following
provision contained in Title III: “No otherwise privileged wire
or oral communication intercepted in accordance with, or in
violation of, the provisions of this chapter shall lose its
privileged character.” Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. No. 90-351, Title III, 82 Stat. 197, 218
(codified as amended at 18 U.S.C.A. § 2517(4) (1968)). The
legislative history for section 2517(4) observed that
[t]raditionally, the interest of truth in
the administration of justice has been
subordinated in the law to the interest of
preserving privileged communications where
four relationships have been involved:
physician-patient, lawyer-client, clergyman-
confidant, and husband-wife. The scope and
existence of these privileges varies from
jurisdiction to jurisdiction. The proposed
provision is intended to vary the existing
law only to the extent it provides that an
otherwise privileged communication does not
lose its privileged character because it is
intercepted by a stranger.
[S. Rep. No. 90-1097 (1968), reprinted in
1968 U.S.C.C.A.N. 2112, 2189 (citations
omitted); see also Terry, supra, 430 N.J.
Super. at 598-99.]
The New Jersey Act also incorporated, “to a major extent,”
the model statute drafted by Professor Blakey. See S. 943
(Sponsors’ Statement), supra, at 13. Professor Blakey testified
12
before the Senate Committee on Law, Public Safety, and Defense
on September 16, 1968, and provided the Committee with an
annotated copy of the model statute. Hearing on S. 897 before
the S. Comm. on Law, Pub. Safety, & Def., 192d Leg. 28 (Sept.
16, 1968) (Statement of Prof. G. Robert Blakey). The model act
appeared in a law review article that the Committee kept on
file. Ibid. (citing G. Robert Blakey & James A. Hancock, A
Proposed Electronic Surveillance Control Act, 43 Notre Dame L.
Rev. 657 (1968)).
The last sentence of section 11 of the New Jersey Act is
identical to the end of section 8(f) of the model statute: “No
otherwise privileged wire or oral communication intercepted in
accordance with, or in violation of, the provisions of this Act,
shall lose its privileged character.” Blakey & Hancock, supra,
43 Notre Dame L. Rev. at 675. Professor Blakey added a
footnote to the end of that sentence, which states that
[w]hile most jurisdictions today recognize
one or more categories of privileged
communications, they very often hold them
inapplicable where an eavesdropper seeks to
testify. Thus, the privilege is thought to
be solely that of restricting the testimony
of the spouse, confessor, lawyer, or doctor.
The last sentence of this provision is
designed to change that rule. Otherwise,
the use of electronic surveillance
techniques might indirectly undermine the
various social policies represented by the
various privileges.
13
[Id. at 675 n.39 (emphasis added) (internal
citation omitted).]
Professor Blakey’s footnote responds directly to the
State’s argument and lays it to rest. As Professor Blakey
anticipated, the State here argues that the marital privilege in
Rule 509 is personal to the spouses but does not attach to the
communication. Under that reasoning, a wiretapper, like a
neighbor, would be free to repeat the communication. But, as
Professor Blakey explains, “the last sentence is designed to
change that rule.” Ibid. “Otherwise,” he writes, wiretapping
could undermine the “social policies” underlying various
privileges. Ibid.
Viewed in a different way, the footnote recognizes that but
for the State’s act of listening, pursuant to a wiretap order,
the marital communication would have remained a private
conversation between two spouses. If no one else had heard the
conversation, the spouses could have chosen not to disclose it
and ensured that it remained confidential -- consistent with the
social policies the privilege is designed to protect. The last
sentence of section 11, taken from the model act, demonstrates
that the Legislature did not intend for the Wiretap Act to alter
that outcome. The Act’s history instead reveals that a state-
authorized wiretap, unlike a private eavesdropper, does not
destroy the privilege.
14
The State’s contrary approach would therefore effectively
read the last sentence of section 11 out of the Wiretap Act. As
the Appellate Division observed, the State’s position -- that a
wiretap interception eliminates confidentiality -- would “render
this key provision of N.J.S.A. 2A:156A-11 a nullity.” Terry,
supra, 430 N.J. Super. at 598 (citing Smith v. Dir., Div. of
Taxation, 108 N.J. 19, 27 (1987) (“[I]t is well-established that
a statute should not be construed in a manner that renders any
portion of it a nullity.”)); see also Jersey Cent. Power & Light
Co. v. Melcar Util. Co., 212 N.J. 576, 587 (2013).
We note, as the Appellate Division did, that Maryland’s
highest court reached the same conclusion when it interpreted
similar statutory language. See Terry, supra, 430 N.J. Super.
at 600 (citing State v. Mazzone, 648 A.2d 978, 983 (Md. 1994)).
Under Maryland law, “[o]ne spouse is not competent to disclose
any confidential communication between the spouses occurring
during their marriage.” Md. Code Ann., Cts. & Jud. Proc. § 9-
105 (LexisNexis 2014). And like the New Jersey Act, the
Maryland wiretapping statute provides that “[a]n otherwise
privileged wire, oral, or electronic communication intercepted
in accordance with, or in violation of, the provisions of this
subtitle, does not lose its privileged character.” Id. at § 10-
407(d).
15
Relying on those provisions, defendant Mazzone moved to
suppress the contents of two wiretap interceptions of
conversations he had with his wife. Mazzone, supra, 336 Md. at
387. The Maryland Court of Appeals agreed with the defendant’s
position. It interpreted the language in the Maryland wiretap
statute, which parallels section 11, “to preserve any privilege
that would have existed had there been no interception and no
eavesdropper.” Id. at 389. The Court therefore “view[ed] the
statute as preserving the marital communications privilege and
prohibiting the court-authorized eavesdropper from testifying as
to the contents of the communication.” Id. at 389-90.
We are not aware of any case law in New Jersey that is
directly on point. See Terry, supra, 430 N.J. Super. at 597.
State v. Sidoti, 134 N.J. Super. 426 (App. Div. 1975), offers
little guidance. Although in Sidoti the State introduced
intercepted conversations between the defendant and his wife at
trial, the defendant conceded that the conversations “did not
contain confidential communications.” Id. at 430. In addition,
the Appellate Division observed that “the admission of these
conversations, even if error, was harmless beyond a reasonable
doubt.” Id. at 431 (citations omitted).
For the reasons set forth above, we agree with the
Appellate Division that a confidential marital communication
protected by Rule 509 “does not lose its privileged character
16
because it is intercepted by a wiretap.” Terry, supra, 430 N.J.
Super. at 600. Section 11 of the Wiretap Act preserves the
privilege.
IV.
The State alternatively argues that the crime-fraud
exception should apply to communications between spouses. We
agree. Because that change would modify the Rules of Evidence
in a significant way, we propose an amendment to be adopted in a
manner consistent with the Evidence Act.
In general, courts construe privileges narrowly because
they prevent factfinders from hearing relevant evidence and thus
undermine the search for the truth. State v. J.G., 201 N.J.
369, 383 (2010) (citations omitted). Courts therefore accept
privileges “only to the extent that they outweigh the public
interest” in the need for full disclosure. Szemple, supra, 135
N.J. at 413-14 (citing Trammel v. United States, 445 U.S. 40,
100 S. Ct. 906, 912, 63 L. Ed. 2d 186, 195 (1980)). Because the
marital communications privilege, like other privileges, “‘has
as its only effect the suppression of relevant evidence, its
scope should be confined as narrowly as is consistent with the
reasonable protection of marital communications.’” Szemple,
supra, 135 N.J. at 415 (quoting 1 McCormick on Evidence § 82 at
303 (John W. Strong ed., 4th ed. 1992)).
17
The marital communications privilege is meant to encourage
marital harmony, not to protect the planning or commission of
crimes. The societal purpose behind the privilege is simply not
served by safeguarding conversations between spouses about their
joint criminal activities. See Fellerman v. Bradley, 99 N.J.
493, 503 (1985) (noting that purpose of attorney-client
privilege is not met by its enforcement in crime-fraud context).
The current version of Rule 509, in effect, immunizes
conversations between spouses about their ongoing and future
joint criminal behavior. As the Appellate Division recognized,
that course not only prevents evidence from being gathered and
admitted, it can also “encourage . . . spousal involvement” in
crime, “thwart law enforcement, and increase the risk to the
public.” Terry, supra, 430 N.J. Super. at 602. Those
legitimate policy concerns outweigh any need to protect spousal
communications about joint participation in crime.
For those and other reasons, many courts have recognized a
crime-fraud exception to the privilege. All of the eleven
federal circuits to consider the question have done so. See
United States v. Evans, 966 F.2d 398, 401 (8th Cir.), cert.
denied, 506 U.S. 988, 113 S. Ct. 502, 121 L. Ed. 2d 438 (1992);
United States v. Marashi, 913 F.2d 724, 731 (9th Cir. 1990);
United States v. Malekzadeh, 855 F.2d 1492, 1496 (11th Cir.
1988), cert. denied, 489 U.S. 1029, 109 S. Ct. 1163, 103 L. Ed.
18
2d 221 (1989); United States v. Estes, 793 F.2d 465, 466-68 (2d
Cir. 1986); United States v. Picciandra, 788 F.2d 39, 43 (1st
Cir.), cert. denied, 479 U.S. 847, 107 S. Ct. 166, 93 L. Ed. 2d
104 (1986); United States v. Sims, 755 F.2d 1239, 1243 (6th
Cir.), cert. denied, 473 U.S. 907, 105 S. Ct. 3533, 87 L. Ed. 2d
656 (1985); United States v. Neal, 743 F.2d 1441, 1446-47 (10th
Cir. 1984), cert. denied, 470 U.S. 1086, 105 S. Ct. 1848, 85 L.
Ed. 2d 146 (1985); United States v. Broome, 732 F.2d 363, 365
(4th Cir.), cert. denied, 469 U.S. 855, 105 S. Ct. 181, 83 L.
Ed. 2d 116 (1984); United States v. Ammar, 714 F.2d 238, 258 (3d
Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d
311 (1983); United States v. Mendoza, 574 F.2d 1373, 1381 (5th
Cir.), cert. denied, 439 U.S. 988, 99 S. Ct. 584, 58 L. Ed 661
(1978); United States v. Kahn, 471 F.2d 191, 194 (7th Cir.
1972), rev’d on other grounds, 415 U.S. 143, 94 S. Ct. 977, 39
L. Ed. 2d 225 (1974). The Appellate Division also catalogued
multiple states that have adopted a crime-fraud exception by
statute, rule, or case law. See Terry, supra, 430 N.J. Super.
at 603 nn.16-18.
In addition, other evidentiary privileges in New Jersey
recognize a crime-fraud exception. See N.J.R.E. 504(2)(a)
(attorney-client privilege); N.J.R.E. 506(f) (physician-patient
privilege); N.J.R.E. 511(2) (cleric-penitent privilege);
19
N.J.R.E. 514 (trade-secret privilege); N.J.R.E. 519(b)
(mediation privilege).
The adoption of the Rules of Evidence was not meant to “bar
the growth and development of the law of evidence to the end
that the truth may be ascertained and proceedings justly
determined.” N.J.R.E. 102. With those aims in mind, we believe
that the marital communications privilege should be updated to
strike an appropriate balance between marital privacy and the
public’s interest in attaining justice. Specifically, Rule 509
should be amended to include a crime-fraud exception that is
similar to the exceptions that apply in federal and state courts
throughout the nation as well as other evidentiary rules in New
Jersey.
V.
The question, then, is how to proceed. State v. Byrd, 198
N.J. 319 (2009), contains a comprehensive discussion of the
various options. We adhere to the principles summarized in that
opinion: “evidence rules that dramatically impact the conduct
of trials” should be adopted by way of the Evidence Act, “while
. . . evidence rule changes of lesser consequence” can “be
developed through case law.” Id. at 345 (citations omitted).
For relatively minor changes to the Rules of Evidence, the
Court has historically acted on its own. In State v. Guenther,
181 N.J. 129 (2004), for example, the Court adopted a narrow
20
exception to Rule 608. In general, that rule bars the use of
specific instances of conduct to attack a witness’s character
for truthfulness. N.J.R.E. 608(a). The limited exception the
Court carved out in Guenther allows a defendant to impeach a
witness’s credibility by showing that the witness had made a
prior false criminal accusation. Id. at 154; see also N.J.R.E.
608(b). That exception applies only when the credibility of a
key witness “is the central issue in a criminal case.” Id. at
160. The Court emphasized that it was “not creating a new rule
of evidence, but merely carving out a narrow exception to the
common law rule embodied in N.J.R.E. 608.” Id. at 159.
By contrast, when a “fundamental change” with “serious and
far-reaching” consequences is at stake, the Court should follow
the procedures of the Evidence Act. State v. D.R., 109 N.J.
348, 352, 375-76 (1988). The Evidence Act reflects a “pragmatic
compromise” among the branches of government and calls for the
collaborative effort of all three to adopt significant changes
to the Rules of Evidence. Id. at 352, 374-76.
The Evidence Act contains two different paths to adopt new
evidence rules. Byrd, supra, 198 N.J. at 342. As Byrd
outlines,
[o]ne path allows for a Judicial Conference,
which includes judges, lawyers, and
academics, to consider a draft of new
evidence rules. See N.J.S.A. 2A:84A-34. On
recommendation of the Conference, and
21
approval by the Supreme Court, the proposed
new evidence rules would be announced “on
September 15 next following such Judicial
Conference,” and then filed with the
Legislature and the Governor. See N.J.S.A.
2A:84A-35. Under that approach, unless
rejected by a joint resolution “adopted by
the Senate and General Assembly and signed
by the Governor,” the proposed evidence
rules “take effect on July 1 next
following.” N.J.S.A. 2A:84A-36. . . .
The other path for the adoption of
evidence rules permits the Supreme Court, at
any time and without presentation to a
Judicial Conference, to submit the proposed
rules to the Senate and General Assembly,
for their approval by joint resolution, and
to the Governor for his signature. See
N.J.S.A. 2A:84A-38; see also [D.R., supra,
109 N.J. at 375.]
[198 N.J. at 342-43.]
The Court has followed the Evidence Act “as a matter of
comity” on a number of occasions. D.R., supra, 109 N.J. at 376.
In D.R., the Court declined to adopt a “tender years” exception
to the hearsay rule on its own. Id. at 375-76. Because of the
“significant” nature of the change, and its “serious and far-
reaching” consequences, the Court instead proposed an amendment
to the Rules of Evidence and transmitted it to the Legislative
and Executive Branches consistent with the Evidence Act. Id. at
351-52, 375-76. The current rule can be found at N.J.R.E.
803(c)(27).
In Byrd, supra, the Court likewise embraced a substantial
change to the hearsay rules -- the adoption of a forfeiture-by-
22
wrongdoing exception -- and submitted the proposal to the
Senate, General Assembly, and Governor for their review and
approval. 198 N.J. at 325, 357. The Judiciary later convened a
Judicial Conference, pursuant to N.J.S.A. 2A:84A-34, which
proposed a draft rule. See State v. Rose, 425 N.J. Super. 463,
467 (App. Div. 2012). Because the Legislature and Governor did
not reject the proposal, see ibid., it is now codified at
N.J.R.E. 804(b)(9).
More recently, the Court concluded that there was “neither
warrant nor right” for it “to engraft a new exception” onto the
spousal testimonial privilege. Mauti, supra, 208 N.J. at 541
(emphasis added).
The type of amendment to the evidence rules proposed in
this case is comparable to the modifications recommended in D.R.
and Byrd. Adding a crime-fraud exception to the marital
communications privilege would amount to a “fundamental change”
with “serious and far-reaching” consequences. D.R., supra, 109
N.J. at 352, 375-76. We therefore invoke the procedures of the
Evidence Act and decline to adopt the change on our own.2
Pursuant to N.J.S.A. 2A:84A-38, we propose a crime-fraud
2
The State conceded at oral argument before the Appellate
Division, see Terry, supra, 430 N.J. Super. at 589, and in its
motion for leave to appeal to this Court, that the Supreme Court
should follow the Evidence Act and not proceed unilaterally to
craft a crime-fraud exception. In a later supplemental filing,
the State argued that the Court can act on its own. The State’s
brief did not offer a reason for its new position.
23
exception to the marital communications privilege at Appendix A,
and transmit it for approval by a joint resolution of the
Legislature and for the Governor’s signature. We first discuss
the language of the proposed amendment.
VI.
There are a number of sources to consider for a crime-fraud
exception. As noted earlier, many states and federal circuits
have adopted one, and the New Jersey Rules of Evidence also
contain various models.
Judge Weinstein, in his authoritative treatise on evidence,
observed that most circuits have held that the government may
present “testimony about confidential communications involving
[i] future or ongoing crimes [ii] in which the spouses were
joint participants [iii] at the time of the communications.”
Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence
Manual § 18.05 n.52 (Joseph M. McLaughlin ed., 2014).
Other privileges in the New Jersey rules address some of
the same themes. See N.J.R.E. 504(2)(a) (attorney-client
privilege “shall not extend to a communication in the course of
legal services sought or obtained in aid of the commission of a
crime or a fraud”); N.J.R.E. 506(f) (no physician-patient
privilege if “judge finds that . . . the services of the
physician were sought or obtained to enable or aid anyone to
commit or to plan to commit a crime or a tort, or to escape
24
detection or apprehension after the commission of a crime or a
tort”); N.J.R.E. 511(2) (permitting cleric to waive cleric-
penitent privilege if “the privileged communication pertains to
a future criminal act”); N.J.R.E. 514 (“The owner of a trade
secret has a privilege . . . to refuse to disclose the secret .
. . if the judge finds that the allowance of the privilege will
not tend to conceal fraud or otherwise work injustice.”);
N.J.R.E. 519(b) (no mediation privilege if someone
“intentionally uses a mediation to plan, attempt to commit or
commit a crime, or to conceal an ongoing crime or ongoing
criminal activity”).
Judge Weinstein’s formulation effectively balances the
relevant interests. It promotes the purposes of the privilege:
to encourage the sharing of confidences between spouses and
protect marital harmony and privacy. See Weinstein & Berger,
supra, § 18.05 n.35-37. At the same time, it roots out
communications between spouses who are both involved in criminal
activity, which “are not worthy of protection.” Ammar, supra,
714 F.2d at 257 (citing cases). The above construction also
does not limit the exception to communications about “patently
illegal activity,” a concept that lacks clarity and could prove
difficult to apply. See United States v. Parker, 834 F.2d 408
(4th Cir. 1987) (noting ambiguity of “what is meant by ‘patently
illegal’ activity”), cert. denied, 485 U.S. 938, 108 S. Ct.
25
1118, 99 L. Ed. 2d 279 (1988). Only a minority of circuit
courts have adopted that approach. See Evans, supra, 966 F.2d
at 401; Sims, supra, 755 F.2d at 1243; Kahn, supra, 471 F.2d at
194.
To be clear, under the above test, a confession made in
confidence to an innocent spouse would remain confidential, but
collusion between spouses to advance a joint criminal enterprise
would not. Also, in a criminal investigation that involves a
wiretap order, law enforcement officials would of course be
required to adhere to the minimization requirements and other
safeguards set forth in the Wiretap Act. See, e.g., N.J.S.A.
2A:156A-12.
We therefore propose that Rule 509 be amended in the
following manner: the marital communications privilege should
not protect a communication that relates to an ongoing or future
crime or fraud in which the spouses were joint participants at
the time of the communication. A proposed revision to Rule 509,
with that change, appears at Appendix A. The proposal also
includes stylistic edits designed to make the rule easier to
follow.
VII.
Defendants argue that if a crime-fraud exception is
adopted, it should not apply to them because the State has not
shown that they “were furthering a criminal activity . . . [or]
26
that they conspired to commit a crime.” If the Legislature and
Governor approve a crime-fraud exception to Rule 509 before
defendants’ trial begins, and if the exception were found to be
available in this case, see Rose, supra, 425 N.J. Super. 463
(rejecting ex post facto challenge and holding that forfeiture-
by-wrongdoing exception to hearsay rule applied to wrongdoing
that occurred before new rule’s effective date), it would then
be up to the trial court to determine if the exception applies
in light of the facts of this case. At this time, we do not
opine on the constitutional ex post facto question that
defendants’ argument implicates.
VIII.
Defendants have raised additional arguments that are not
properly before this Court. They argue that the State failed to
show a “special need” to monitor Savoy’s cell phones under
N.J.S.A. 2A:156A-11 –- a claim that the Appellate Division
rejected. See Terry, supra, 430 N.J. Super. at 595. Defendants
also argue that the appellate panel “fail[ed] to discuss whether
interception of spousal communications violates the minimization
requirements of the Wiretap Act.” Because defendants did not
file a cross-appeal, we do not address those arguments.
IX.
For the reasons outlined above, we affirm the judgment of
the Appellate Division. We also forward to the Senate and
27
General Assembly, for their approval by joint resolution, and to
the Governor for his signature, a crime-fraud exception to the
marital communications privilege.
JUSTICES LaVECCHIA, ALBIN, PATTERSON and FERNANDEZ-VINA;
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in CHIEF JUSTICE RABNER’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-71 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
YOLANDA TERRY and TERON
SAVOY,
Defendants-Respondents.
DECIDED July 22, 2014
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1
Appendix A
Proposed Revision to Marital Communications Privilege --
changes to the current rule are in bold; deletions are crossed
out.
N.J.R.E. 509 Marital Privilege -- Confidential Communications
(1) No person shall disclose any communication made in
confidence between such person and his or her spouse.
(2) There is no privilege under this rule
(a) if unless both spouses shall consent to the disclosure or;
(b) unless if the communication is relevant to an issue in an
action between them or;
(c) in a criminal action or proceeding in which either spouse
consents to the disclosure, or;
(d) in a criminal action or proceeding coming within Rule 23(2)
[Rule 501(2)].; or
(e) in a criminal action or proceeding if the communication
relates to an ongoing or future crime or fraud in which the
spouses were joint participants at the time of the
communication.
(3) When a spouse is incompetent or deceased, consent to the
disclosure may be given for such spouse by the guardian,
executor or administrator. The requirement for consent shall
not terminate with divorce or separation. A communication
between spouses while living separate and apart under a divorce
from bed and board shall not be a privileged communication.
2