N.J. high court seeks end of law shielding spouses’ communication in criminal cases

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New Jersey’s Supreme Court is recommending that lawmakers change a law that protects the privacy of communications between married partners.

The state’s highest court ruled that New Jersey’s evidence law does not allow prosecutors to use phone calls and text messages between spouses. That ruling came in the case of an Ocean County couple whose messages were intercepted during a drug-trafficking investigation.

The law was enacted to prevent a married person who hears a confession from a spouse from having to testify against that spouse in court.

The justices favor amending the spousal immunity law to be amended so evidence can be presented when both spouses participate in a crime together.

Darren Gelber, former president of the Association of Criminal Defense Lawyers of New Jersey, said he doesn’t believe that change would be far-reaching.

“I don’t think it’s very common for the marital privilege to come up in a case anyway,” he said. “And it’s even less common for a husband and wife to be found to have engaged in criminal activity together acting in unison almost like Bonnie and Clyde.”

Assembly Judiciary Committee chairman John McKeon said he intends to introduce a bill to make the change the justices suggested.

“This is a unique set of circumstances, but, nonetheless, it isn’t anything that should have that dramatic of an impact,” said McKeon, D-Essex. “But when spouses are engaged in criminal conduct that’s one less impediment for law enforcement to bring them into justice, and I think it’s reasonably fair.”

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