Does The Marital Communications Privilege Trump The New Jersey Wiretap Act?

Posted On Thursday, July 18, 2013

That is precisely the question that the New Jersey Supreme Court will wrestle with after granting certification in the criminal case of Yolanda Terry and her husband, Perry Savoy, the alleged leader of a drug network in Ocean and Monmouth Counties, New Jersey.  In the trial court, Terry and Savoy attempted to block prosecutors from using wiretaps of the couple’s incriminating cell phone calls and texts against them.  The trial judge refused their bid to exclude the wiretap evidence, but the New Jersey Appellate Division reversed.  The Court held that under the state’s Wiretap and Electronic Surveillance Control Act, a marital communication remains protected by privilege when it’s intercepted by a wiretap or because an officer will testify to the communication.  The Court also ruled that the intercepted marital communications were not admissible under a crime-fraud exception because the New Jersey Evidence Act of 1960, unlike federal law, did not include such an exception when it codified the marital communications privilege.  Although the Court stated that communications to advance drug trafficking aren’t worth protecting, such policy opinions didn’t matter and wouldn’t allow the Court to sidestep the Evidence Act.  The applicability of a crime-fraud exception to the marital communications privilege is an issue of first impression for the New Jersey Supreme Court.