The New Jersey Supreme Court recently acknowledged that the marital communications privilege should include a crime-fraud exception, but held that the inclusive procedure contemplated in the Evidence Act, and not judicial fiat, would be the appropriate vehicle for its adoption. We agree.
In State v. Terry, defendant Teron Savoy, charged with serious drug crimes, and his wife, Yolanda Terry, moved to prevent the state from introducing into evidence a wiretapped phone conversation and text message that implicated both of them. They relied on the marital communication privilege of New Jersey Rule of Evidence 509. But the trial judge denied the motion, saying the disclosure would be by a third party, the law enforcement officer, and not the spouse. In addition, the trial judge found that the privilege should not protect drug trafficking communications.
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