Pillow Talk — New Limits on Confidentiality

Most people are aware that communications between a lawyer and client are generally considered to be confidential or “privileged” and may not be disclosed to anyone without their consent. The same is true in regards to discussions between a physician or psychologist and his/her patient. However, most people are not aware that communications between spouses (or partners in a civil union) enjoy the same type of “privilege’ and were generally protected from disclosure absent mutual consent.

While not absolute, such privileges which may permit someone to refuse to testify or which may allow for the exclusion of relevant evidence, were deemed to be the result of a consensus that same was a public good which transcended the normally predominant principle of utilizing all rational means for ascertaining the truth. Among the public policy considerations which would justify shielding the disclosure of such communications includes that: (1) the communications must originate in a confidence that they will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury which would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. McGuinness v. Barnes, 294 N,.J. Super. 519, 523 (Law Div. 1994); Kinsella v. Kinsella, 150 N.J. 276, 294 (1997). Such considerations were deemed satisfied by the recognition of the marital communication privilege under Evidence Rule 509, which conferred a privilege against the disclosure of confidential communications made between spouses. That Rule provided that “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 action or proceeding coming within section 17 of P.L. 1960, c. 52 (C. 2A:84 A-17[Rule 501(2)])”. The requirement for consent did not terminate with divorce or separation as long as those confidential communications were made during the marriage. This privilege arose from the strong public policy of encouraging free and uninhibited communications between spouses, and consequently, of protecting the sanctity and tranquility of marriage, and was viewed as essential to the preservation of the marriage relationship. State v. Szemple, 135 N.J. 406, 414 (1994).

However, in light of the recent New Jersey Supreme Court case of State v. Terry, 218 N.J. 224 (2014) and the Court’s proposed amendment to Rule 509, which is awaiting final enactment in the Legislature, communications between spouses (or civil union partners) relating to an ongoing and future joint criminal or fraudulent behavior will no longer be privileged.

In State v. Terry, the Husband was under investigation for involvement in a drug trafficking network, and as part of that investigation, court authorized wiretaps of his cell phones, the result of which included several intercepted phone calls and text messages between himself and his wife, implicating her in various drug-related criminal activities with him. The husband and wife moved to bar the introduction of these conversations/text messages between them as being protected by the marital communications privilege. The trial court denied their motion, but the Appellate Division reversed on various grounds, concluding that the communications in question were protected, even though noting that strong pubic policy concerns appear to support the applying of a crime-fraud exception to the Rule 509 privilege. The Supreme Court granted the State’s motion for leave to appeal. After rejecting the State’s position that a confidential marital communication protected by Rule 509 lost its privileged character because it was intercepted by a wiretap, the Supreme Court turned its attention to whether a crime-fraud exception should nevertheless apply to communications between spouses. The Court noted that in general courts are to construe privileges narrowly because they prevent fact finders from hearing relevant evidence and thus undermine the search for the truth. Id. at 239. In this instance, the Court was of the view that the scope of the marital communication privilege should be confined as narrowly as was consistent with the reasonable protection of marital communications. The court stated:

“The marital communication privilege is meant to encourage harmony, not 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.” Id at 239-40.

The Court recognized that the existing Rule 509 had the effect of immunizing conversations between spouses about their ongoing and future joint criminal behavior and that legitimate concerns outweighed any need to protect such type of spousal communications. Recognizing that other evidentiary privileges in New Jersey recognized a crime-fraud exception (including the attorney/crime privilege, the physician/patient privilege, the cleric/penitent privilege, the trade secret privilege, the mediation privilege), the Court opined that the marital communications privilege should be updated to strike an appropriate balance between marital privacy and the public’s interest in obtaining justice by amending same to include such a crime-fraud exception. Since the court considered such an amendment to be a “fundamental change”, rather than adopting this change on its own, it invoked the procedures of the Evidence Act, and thereby proposed language for the crime-fraud exception and transmitted same for approval by joint resolution of the Legislature and the Governor’s signature. Indeed, such a bill has been passed and awaits final enactment and signature which would add as an exception from privilege under Rule 509 communications “in a criminal action or proceeding, if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication”.

Hence, going forward “pillow talk” will have limits. While a confession made in confidence to an innocent spouse may remain confidential, spouses will no longer be able to keep “secret” communications of their engaging in criminal or fraudulent activities together, or of plotting or colluding to do so in the future.