New Jersey Recognizes “Maritial Communication Privelege” and “Spousal Privilege”

On January 23, 2012, State v. James J. Mauti, 208 N.J. 519 (2012) – In a unanimous opinion, the Supreme Court affirmed the Appellate Division, finding that the spousal privilege (N.J.R.E. 501(2)) could not be pierced by applying the factors set forth in In re Kozlov, 79 N.J. 232 (1979).

The Court recognized that privileges inhibit the truth-seeking function but are regarded as serving a more important public interest than the need for full disclosure; thus they stand in a “disfavored status.” Any party can waive a privilege, and may do so implicitly where they put a confidential communication in issue in litigation. The current Evidence Rules recognize two marital privileges — the “marital-communications privilege,” which deals with marital communications, and the “spousal privilege,” in which one spouse can refuse to testify against the other. And privileges are not absolute; occasionally they may yield to competing legal principles. But Kozlov did not establish a broad equitable balancing test subjecting any privilege to piercing if the adversary “needs” relevant evidence they cannot obtain elsewhere. Because the witness did not hold the privilege when the crimes occurred or during her grand jury testimony because she was not married to defendant at that time, she had no privilege and there was nothing for her to waive. The Court also determined that her post-marriage invocation was not the kind of “strategicdealing” that courts had condemned. And, as the Court put it, “[o]ur own conclusions about what would be better policy are simply of no consequence.”

Justice Long delivered the opinion of the Court, in which Chief Justice Rabner and Justices LaVecchia, Albin, Hoens, and Patterson; and Judge Wefing (temporarily assigned) join in.

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