By: Kathryn Somerset*
November 3, 2014
On July 22, 2014, the New Jersey Supreme Court unanimously opined that communications between spouses are protected under the marital communications privilege during a criminal trial, even where they are intercepted appropriately via wiretap. According to the 7-0 holding in State v. Terry and Savoy, the New Jersey Wiretap and Electronic Services Control Act (hereinafter “the Wiretap Act”) expressly shields, “confidential communications between two spouses, which would have remained privileged had there been no interception,” from losing their privilege through wiretapping by state officials. Nevertheless, the Court agreed with the State’s growing concerns over potential abuse of this privilege in a criminal context, and thus proffered an amendment to Evidence Rule 509. This amendment would establish a crime-fraud exception in cases where confidential marital communications via electronic services are used to plan and later engage in criminal activity: the exact circumstances before the Court in State v. Terry and Savoy. While the Court ultimately upheld the protection of the communications and did not opt to modify Evidence Rule 509 without the Governor’s approval, the State should consider the Court’s proposed amendment a victory.
II. Preserving the Spirit of Statutes
Although the Court lacked precedential guidance on whether communications between spouses subject to wiretapping by state officials are protected under the marital communications privilege from being admitted as evidence in a criminal trial, the Court did look to the legislative history of the statute, which revealed that “a state- authorized wiretap, unlike a private eaves- dropper, does not destroy the privilege.” This decision stemmed from a factual backdrop that gave the Court an opportunity to examine the implications of the Wiretap Act.
To begin, in June 2011, Yolanda Terry, Teron Savoy, and twenty other individuals were indicted by an Ocean County Grand Jury on charges of conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and heroin. Further, Savoy was charged with being a leader of a drug trafficking network and possession of heroin with intent to distribute. These charges stemmed from an investigation by state officials beginning in 2010. Then, in 2010, when state officials initiated their investigation into Savoy, believing him to be the leader of a drug trafficking network, they obtained court orders permitting the wiretapping of two of Savoy’s cell-phones. After obtaining the orders, state officials intercepted hours of conversations and recorded two or three phone calls and five text messages between Savoy and Terry, his wife. These conversations, later used to indict the two individuals in the aforementioned crimes, detailed plots to collect drug money and to retrieve something from a car seized by officials, which was later identified by officials as heroin.
The defendants, Savoy and Terry, moved to prevent the admissibility of these conversations by arguing that they were protected under the marriage communications privilege of Evidence Rule 509. The trial judge denied the motion finding that the confidential communications were in effect disclosed to a third party and that conversations made in the furtherance of drug trafficking were not what the marital communications privilege was intended to protect. In response, Savoy and Terry appealed, and the New Jersey Appellate Court overturned the decision of the trial judge. The Appellate Division held that while public policy supported a crime-fraud exception, the Court could not adopt the exception and bypass the Evidence Act of 1960; thus, the communications at issue were entitled to protection. Subsequently, the State appealed, and the New Jersey Supreme Court granted certiorari. While ultimately upholding the Appellate Division’s opinion, the New Jersey Supreme Court highlighted multiple issues before the Court: the purpose of the marriage communications privilege under Evidence Rule 509, the legislative intent as to the Wiretap Act, and the potential for implementing a crime-fraud exception to prevent the abuse of the marriage communications privilege.
The N.J. Supreme Court considered the purpose of the marital communications privilege both under Evidence Rule 509 and the Evidence Act of 1960. The Court emphasized the importance of sanctity and tranquility in the marriage and protecting any confidential communications between spouses. The State, not contending the public policy of protecting martial communications generally, maintained that the privilege itself is still subject to a third party exception: the privilege is destroyed when a third party intercepts the communication by either accidentally overhearing or eavesdropping. The State then showed similarities between such an exception and the Wiretap Act by comparing the wiretapping by officials to a third party eavesdropping on Savoy and Terry’s conversations. However, the Court rejected this argument, reasoning that the Wiretap Act expressly provides that wiretapping does not destroy a privilege. The Court stated the Legislature’s intent was made clear in section 11: “[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.’’ The Court noted that the State’s analysis would effectively bypass the last sentence of section 11 from the Act.
After determining that the law did not provide a foundation for the communications’ admissibility, the State prompted the court to consider the public policy implications of permitting protection in cases such as State v. Terry and Savoy. The State contended that by permitting spouses to abuse the marriage communications privilege by allowing them to shield communications made in furtherance of criminal activity, the court was effectively destroying the purpose of the privilege. The State then proposed a crime-fraud exception to the privilege— which it argued and was observed by the trial judge—already applied in nearly all of the federal circuits. This exception would prohibit spouses, such as Savoy and Terry, from abusing evidentiary protection in criminal trials by shielding intercepted communications related to criminal activity. The N.J. Supreme Court, agreeing with the states’ line of thinking, proposed an amendment to Evidence Rule 509 to the Senate and General Assmebly for their approval and to the Governor for signature. The Court opted not to implement the amendment unilaterally because the change would be fundamental to the Rules of Evidence; thus, the Court chose to defer to the procedure laid out by the Evidence Act of 1960 and merely recommend the amendment.
Although the Supreme Court of New Jersey did not deem the conversations between Savoy and Terry admissible in court, the State should consider the proposition of the amendment to Evidence Rule 509 a victory. The New Jersey Legislature will now analyze the amendment, having been approved by the Court. Ultimately, if the amendment is implemented, state officials will have the ability to use conversations made in furtherance of a crime to indict individuals and protect the community from future law breaking; otherwise without such an amendment this would be deemed inadmissible by the Evidence Act of 1960. Importantly, this amendment will only affect communications detailing future or ongoing crimes in which both spouses are a party; thus, if one spouse confesses a past crime to another spouse via cell-phone, the privilege will remain intact even when intercepted via wiretap. Accordingly, under the proposed amendment, the original purpose of the privilege—to protect the sanctity and tranquility in marriage by preventing forcible testimony of one spouse against another in a criminal trial—will enjoy continued protection, and at the same time, state officials will have an additional aid in preventing future crime. Currently, the proposed amendment is still up for review.
 See generally Salvador Rizzo, N.J. Sup. Ct. Says Privacy Rights Should be Scaled Back for Married Couples, THE STAR-LEDGER (July 23, 2014, 9:26 AM), available at http://www.nj.com/politics/index.ssf/2014/07/ nj_supreme_court_says_privacy_rights_should_be_scaled_back_for_married_couples_plotting_crimes.html
 State v. Terry, 94 A.3d 882, 888 (N.J. 2014).
 Id. at 883.
 See generally id. at 891-92.
 Id. at 889.
 Joshua Alston, Recorded Marital Comm. Isn’t Evidence: NJ High Ct., LAW 360, (July 22, 2014, 5:48 PM), available at http://www.law360.com/articles/559774/recorded-marital-communication-isn...
 Rizzo, supra note 1.
 Rizzo, supra note 1.
 Terry, 94 A.3d at 885.
 Rizzo, supra note 1.
 Terry, 94 A.3d at 885.
 State v. Terry, NEW JERSEY LAW JOURNAL, (May 15, 2013), available at http://www.njlawjournal.com/id=1202600296703/State-v-Terry?slreturn=20140911082941.
 Terry, 94 A.3d at 882
 See generally id. at 885.
 See id. at 887.
 Id. at 888. The Court noted how the last sentence in section 11 reflected a provision in the federal Wiretap Act known as 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.’ Id.
 Terry, 94 A.3d at 889.
 See generally id. at 890.
 See State v. Terry, 66 A.3d 177, 186-88 (N.J. App. Div. 2013).
 Id. at 188.
 Terry, 94 A.3d at 885.
Sen. No. 2411, 216th Leg. (N.J. 2014), available at http://www.njleg.state.nj.us/2014/Bills/S2500/2411_I1.HTM.