State v. Yolanda Terry and Teron Savoy

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Yolanda Terry and Teron Savoy (A-71-12) (072775)

Argued March 18, 2014 -- Decided July 22, 2014

RABNER, C.J., writing for a unanimous Court.

The issue in this appeal is whether State intercepted phone conversations and text messages between a
husband and wife, pursuant to a court-approved wiretap, are protected communications under the marital
communications privilege. A second issue raised in this case is whether New Jersey should adopt a crime-fraud
exception to the marital communications privilege.

At all times relevant to this case, defendants Teron Savoy and Yolanda Terry have been married. In the fall
of 2010, the Ocean County Prosecutor’s Office was investigating Savoy as the alleged leader of a drug trafficking
network. As part of the investigation, the State obtained court orders under the New Jersey Wiretapping and
Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act or Act) authorizing wiretaps of two
cell phones Savoy used. Among many hours of interceptions, the State recorded two or three phone calls and
intercepted five text messages between Savoy and Terry. In those communications, Savoy asked Terry to pick up
money from co-defendant Chardel Holman. The State alleges that Savoy had previously fronted heroin to Holman.
The State also alleges that on October 17, 2010, the police stopped a Lexus in which Savoy was a passenger.
Authorities seized three bags of heroin, $900, and two other cell phones from Savoy. In an intercepted text message
later in the day, Savoy asked Terry to retrieve something from the seized car. The following day, after getting a
warrant, officials searched the Lexus and found twelve grams of heroin.

In June 2011, an Ocean County Grand Jury indicted Savoy, Terry, Holman, and twenty others on charges
of conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and heroin. Savoy is also
charged with being a leader of a drug trafficking network and possession of heroin with intent to distribute. Savoy
and Terry moved to prevent the State from introducing at trial the phone conversations and text messages between
them, arguing that the communications were protected by the marital communications privilege, N.J.R.E. 509. In a
detailed oral opinion, the trial judge denied the motion. The court found that the communications were admissible at
trial because any confidential communication would be disclosed by a third party -- in this case, a law enforcement
officer -- and not a spouse. The trial court also discussed the crime-fraud exception to the marital communications
privilege, which many federal and state courts have adopted, and concluded that “any communication made in this
case in furtherance of drug trafficking is [not] worthy of protection.”

Defendants appealed. In a published opinion, the Appellate Division reversed. State v. Terry, 430 N.J.
Super. 587 (App. Div. 2013). The panel determined that under Rule 509 and the Wiretap Act, the communications
in question were protected. In addition, the panel noted that strong public policy concerns supported applying a
crime-fraud exception to the marital communications privilege. The panel concluded, however, that it could not
bypass the procedures of the Evidence Act of 1960, N.J.S.A. 2A:84A-33 to -44, and unilaterally adopt such an
exception. The Supreme Court granted the State’s motion for leave to appeal. 214 N.J. 233 (2013).

HELD: A confidential marital communication protected under the marital communications privilege does not lose
its privileged status by virtue of a wiretap under the New Jersey Wiretapping and Electronic Surveillance Control
Act. The Court, however, proposes a crime-fraud exception to the marital communications privilege and, pursuant
to the Evidence Act of 1960, transmits it for approval by a joint resolution of the Legislature and for the Governor’s
signature.

1. The Legislature enacted the modern form of the marital communications privilege as part of the Evidence Act of
1960. The privilege also appears in Rule 509 of the Rules of Evidence. The privilege “stems from the strong public
policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the

1
sanctity and tranquility of marriage.” State v. Szemple, 135 N.J. 406, 414 (1994). Outside the context of the
Wiretap Act, the State’s position that the marital communications privilege is personal to the spouses and does not
prevent a third person from testifying, is correct. A marital communication loses its privileged character if it is
overheard by a third party, such as a neighbor, “either accidentally or by eavesdropping.” Terry, supra, 430 N.J.
Super. at 597. However, the State’s position, in effect, that wiretappers who act pursuant to a court order are no
different from neighbors and other private eavesdroppers, is not supported by the language and history of the
Wiretap Act. (pp. 7-10)

2. The Wiretap Act specifically provides that “[n]o otherwise privileged wire, electronic or oral communication
intercepted in accordance with, or in violation of, the provisions of this act, shall lose its privileged character.”
N.J.S.A. 2A:156A-11 (last sentence of section 11). As applied to the marital communications privilege, the statute’s
plain language appears to mean that a confidential communication between two spouses, which would have
remained privileged had there been no interception, does not lose its privileged status by virtue of a wiretap. But for
the State’s act of listening, pursuant to a wiretap order, the marital communication would have remained a private
conversation between two spouses. The Act’s history reveals that a state-authorized wiretap, unlike a private
eavesdropper, does not destroy the privilege. The State’s contrary approach would effectively read the last sentence
of section 11 out of the Wiretap Act. Thus, the Court agrees with the Appellate Division that a confidential marital
communication protected by Rule 509 “does not lose its privileged character because it is intercepted by a wiretap.”
Terry, supra, 430 N.J. Super. at 600. Section 11 of the Wiretap Act preserves the privilege. (pp. 10-17)

3. The Court agrees that the crime-fraud exception should apply to communications between spouses. The societal
purpose behind the privilege is simply not served by safeguarding conversations between spouses about their joint
criminal activities. The current version of Rule 509, in effect, immunizes conversations between spouses about their
ongoing and future joint criminal behavior. Many courts, including all of the eleven federal circuits to consider the
question, have recognized a crime-fraud exception to the privilege. The Appellate Division also catalogued multiple
states that have adopted a crime-fraud exception by statute, rule, or case law. In addition, other evidentiary
privileges in New Jersey -- including the physician-patient and cleric-penitent -- recognize a crime-fraud exception.
The marital communications privilege should be updated to strike an appropriate balance between marital privacy
and the public’s interest in attaining justice. Specifically, Rule 509 should be amended to include a crime-fraud
exception that is similar to the exceptions that apply in federal and state courts throughout the nation as well as other
evidentiary rules in New Jersey. (pp. 17-20)

4. For relatively minor changes to the Rules of Evidence, the Court has historically acted on its own. By contrast,
when a “fundamental change” with “serious and far-reaching” consequences is at stake, the Court should follow the
procedures of the Evidence Act. State v. D.R., 109 N.J. 348, 352, 375-76 (1988). The Evidence Act reflects a
“pragmatic compromise” among the branches of government and calls for the collaborative effort of all three to
adopt significant changes to the Rules of Evidence. Id. at 352, 374-76. Adding a crime-fraud exception to the
marital communications privilege would amount to a “fundamental change” with “serious and far-reaching”
consequences. Id. at 352, 375-76. The Court therefore invokes the procedures of the Evidence Act and declines to
adopt the change on its own. Pursuant to N.J.S.A. 2A:84A-38, the Court proposes a crime-fraud exception to the
marital communications privilege at Appendix A, and transmits it for approval by a joint resolution of the
Legislature and for the Governor’s signature. More specifically, the marital communications privilege should not
protect a communication that relates to an ongoing or future crime or fraud in which the spouses were joint
participants at the time of the communication. If the Legislature and Governor approve a crime-fraud exception to
Rule 509 before defendants’ trial begins, and if the exception were found to be available in this case, it would then
be up to the trial court to determine if the exception applies in light of the facts of this case. At this time, the Court
does not opine on any constitutional ex post facto question. (pp. 20-27)

The judgment of the Appellate Division is AFFIRMED. In addition, the Court forwards to the Senate and
General Assembly, for their approval by joint resolution, and to the Governor for his signature, a crime-fraud
exception to the marital communications privilege.

JUSTICES LaVECCHIA, ALBIN, PATTERSON and FERNANDEZ-VINA and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-71 September Term 2012
072775

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

YOLANDA TERRY and TERON
SAVOY,

Defendants-Respondents.

Argued March 18, 2014 – Decided July 22, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 430 N.J. Super. 587 (2013).

William Kyle Meighan, Assistant Prosecutor,
argued the cause for appellant (Joseph D.
Coronato, Ocean County Prosecutor, attorney;
Samuel J. Marzarella, Supervising Assistant
Prosecutor, of counsel).

Brian J. Di Stefano argued the cause for
respondent Teron Savoy.

John L. Brown, Jr., argued the cause for
respondent Yolanda Terry.

CHIEF JUSTICE RABNER delivered the opinion of the Court.

As part of a criminal investigation, the State intercepted

phone conversations and text messages between a husband and

wife, pursuant to a court order. We must decide whether those

communications are protected under the marital communications

privilege.

1
 Rule 509 of the Rules of Evidence embodies the State’s

longstanding marital communications privilege. The rule

provides that “[n]o person shall disclose any communication made

in confidence between such person and his or her spouse.”

N.J.R.E. 509. Underlying the privilege are the well-settled

public policies to encourage spouses to share confidences and to

protect marital harmony and privacy. However, if a bystander or

some other private third party overhears a conversation between

spouses, generally, the privilege is lost.

State investigators in this matter listened to and reviewed

marital communications after they obtained a court order under

the New Jersey Wiretapping and Electronic Surveillance Control

Act, N.J.S.A. 2A:156A-1 to -37 (Wiretap Act or Act). The

language and history of the Act reveal that the Legislature

intended to keep in place the policies that protect otherwise

privileged communications between spouses. See N.J.S.A.

2A:156A-11. As a result, conversations between spouses that

would otherwise be privileged cannot be intercepted or

introduced in evidence under current law. We agree with and

affirm the judgment of the Appellate Division in that regard.

This case raises a second issue as well. In its present

form, Rule 509 protects communications between spouses about

criminal activities they are jointly planning or committing.

That aspect of the privilege does not serve its purpose and

2
undermines the public’s interest in attaining justice. We

therefore propose a crime-fraud exception to the marital

communications privilege, similar to the approach that eleven

federal circuits and many states have adopted.

Because the proposed amendment presents a fundamental

change to the Rules of Evidence with far-reaching consequences,

we follow the procedures outlined in the Evidence Act of 1960:

we submit a proposed crime-fraud exception –- set forth at

Appendix A –- to the Senate and General Assembly, for their

approval by joint resolution, and to the Governor for his

signature. See N.J.S.A. 2A:84A-38.

I.

The following facts are based on the State’s proffer to the

trial court and are not in dispute. At all times relevant to

this case, defendants Teron Savoy and Yolanda Terry have been

married. In the fall of 2010, the Ocean County Prosecutor’s

Office was investigating Savoy as the alleged leader of a drug

trafficking network. As part of the investigation, the State

obtained court orders that authorized wiretaps of two cell

phones Savoy used. State v. Terry, 430 N.J. Super. 587, 590

(App. Div. 2013).

Among many hours of interceptions, the State recorded two

or three phone calls and intercepted five text messages between

Savoy and Terry. Id. at 591. In those communications, Savoy

3
asked Terry on October 17, 2010 to pick up money from co-

defendant Chardel Holman. The State alleges that Savoy had

previously fronted heroin to Holman. Id. at 590.

The State also alleges that on October 17, 2010, the police

stopped a Lexus in which Savoy was a passenger. Authorities

seized three bags of heroin, $900, and two other cell phones

from Savoy. Ibid. In an intercepted text message later in the

day, Savoy asked Terry to retrieve something from the seized

car. The following day, after getting a warrant, officials

searched the Lexus and found nearly twelve grams of heroin.

Ibid.

In June 2011, an Ocean County Grand Jury indicted Savoy,

Terry, Holman, and twenty others. The indictment charges them

with conspiracy to manufacture, distribute, and possess with

intent to distribute cocaine and heroin, contrary to N.J.S.A.

2C:5-2, 2C:35-5a, and 2C:35-5b(1). Savoy is also charged with

being a leader of a drug trafficking network, N.J.S.A. 2C:35-3,

and possession of heroin with intent to distribute, N.J.S.A.

2C:35-5a(1) and 2C:35-5b(3).

Savoy and Terry moved to prevent the State from introducing

at trial the phone conversations and text messages between them.

They argued that the communications were protected by the

marital communications privilege, N.J.R.E. 509. In a detailed

oral opinion, the trial judge denied the motion. The court

4
found that the communications were admissible at trial because

any confidential communication would be disclosed by a third

party -- in this case, a law enforcement officer –- and not a

spouse. The trial court also discussed the crime-fraud

exception to the marital communications privilege, which many

federal and state courts have adopted, and concluded that “any

communication made in this case in furtherance of drug

trafficking is [not] worthy of protection.”

Defendants appealed. In a published opinion, the Appellate

Division reversed. Terry, supra, 430 N.J. Super. at 610. The

panel rejected defendants’ claim that the State had to show a

“special need” to wiretap Savoy’s cell phones under N.J.S.A.

2A:156A-11. Id. at 593-95. That issue is not part of this

appeal.

The panel also rejected the State’s argument that the

marital communications privilege did not apply. The Appellate

Division reviewed Rule 509 and the Wiretap Act and concluded

that the communications in question were protected. Id. at 596-

600. Finally, the panel noted that strong public policy

concerns supported applying a crime-fraud exception to the

privilege. Id. at 602. The panel concluded, however, that it

could not bypass the procedures of the Evidence Act of 1960,

N.J.S.A. 2A:84A-33 to -44, and unilaterally adopt such an

exception. Terry, supra, 430 N.J. Super. at 605-10.

5
 We granted the State’s motion for leave to appeal. 214

N.J. 233 (2013).

II.

The State argues that the marital communications privilege

only prevents one spouse from disclosing confidential

communications with the other. It contends that the privilege

does not bar a third party from testifying “about statements

overheard as a result of a valid wiretap order.” The State

maintains that certain language in the Wiretap Act -- “[n]o

otherwise privileged . . . communication . . . shall lose its

privileged character,” N.J.S.A. 2A:156A-11 –- does not prevent

an investigative agent from testifying about an intercepted

communication.

Although the State submits that the marital communications

privilege does not apply in this case, it argues that New Jersey

should adopt a crime-fraud exception to the privilege for use in

future cases.

Defendants submitted a joint supplemental brief in which

they ask this Court to affirm the judgment of the Appellate

Division. Defendants argue that the Wiretap Act expressly bars

interception of privileged communications, like the confidential

marital communications in this case.

Defendants also argue that New Jersey should not adopt a

crime-fraud exception. If the Court decides otherwise,

6
defendants submit that it must follow the procedures in the

Evidence Act. In any event, defendants contend that any

exception should not apply to this case because the State has

not proven that Terry was a participant in the alleged criminal

activity.

III.

A.

We first address the State’s argument that the privilege

does not prevent the State from presenting evidence of

confidential communications between spouses, which were

intercepted under a wiretap order. The Appellate Division

rejected that claim. We discuss the panel’s ruling at length

because we affirm substantially for the reasons contained in

Judge Leone’s thoughtful opinion.

The Legislature enacted the modern form of the marital

communications privilege as part of the Evidence Act of 1960.

See L. 1960, c. 52, § 22 (codified at N.J.S.A. 2A:84A-22). The

privilege also appears in Rule 509 of the Rules of Evidence.

The current version of the rule provides in part as follows:

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

7
 action or proceeding coming within [Rule
501(2)].

[N.J.S.A. 2A:84A-22; N.J.R.E. 509.]1

The marital communications privilege “stems from the strong

public policy of encouraging free and uninhibited

communication between spouses, and, consequently, of protecting

the sanctity and tranquility of marriage.” State v. Szemple,

135 N.J. 406, 414 (1994). The privilege has traditionally been

viewed as “essential to the preservation of the marriage

1
In addition to the marital communications privilege, New Jersey
recognizes a spousal testimonial privilege, which provides that

[t]he spouse or one partner in a civil union
couple of the accused in a criminal action
shall not testify in such action except to
prove the fact of marriage or civil union
unless (a) such spouse or partner consents,
or (b) the accused is charged with an
offense against the spouse or partner, a
child of the accused or of the spouse or
partner, or a child to whom the accused or
the spouse or partner stands in the place of
a parent, or (c) such spouse or partner is
the complainant.

[N.J.S.A. 2A:84A-17; N.J.R.E. 501(2).]

The spousal privilege applies only to criminal cases. Also,
“[t]he spousal privilege, unlike the marital communications
privilege, is not limited to confidential marital exchanges.
Unless one of the exceptions applies, all testimony is barred
except that bearing on the fact of the marriage.” State v.
Mauti, 208 N.J. 519, 534 (2012). In addition, the marital
communications privilege continues to protect confidential
communications made during the marriage even if the parties
divorce, see id. at 533; N.J.R.E. 509; the spousal privilege
ceases to apply once the marriage ends, State v. Mauti, 416 N.J.
Super. 178, 193 (App. Div. 2010), aff’d, Mauti, supra, 208 N.J.
519; State v. Brown, 113 N.J. Super. 348, 353 (App. Div. 1971).
8
relationship.” Wolfle v. United States, 291 U.S. 7, 14, 54 S.

Ct. 279, 280, 78 L. Ed. 617, 620 (1934) (citations omitted).

One prominent commentator advances another rationale for the

privilege: “All of us have a feeling of indelicacy and want of

decorum in prying into the secrets of husband and wife.” See 1

McCormick on Evidence § 86 at 524 (Broun ed., 7th ed. 2013).

The State, relying on the language of Rule 509 and on

Szemple, supra, 135 N.J. at 417, contends that the marital

communications privilege is personal to the spouses and does not

prevent a third person from testifying. Outside the context of

the Wiretap Act, the State’s position is correct; a marital

communication loses its privileged character if it is overheard

by a third party “either accidently or by eavesdropping.”

Terry, supra, 430 N.J. Super. at 597 (citing Szemple, supra, 135

N.J. at 415 (quoting 1 McCormick on Evidence § 82 at 302-03

(John W. Strong ed., 4th ed. 1992))). The involvement of a

third party, in essence, undermines the rule’s requirement of

confidentiality. Ibid. (citing Szemple, supra, 135 N.J. at

417). As a result, if a neighbor overhears a conversation, or a

friend reads a letter from one spouse to another, those

communications are no longer made in confidence, and neither

spouse can invoke the privilege to prevent disclosure by the

third party. See Szemple, supra, 135 N.J. at 416-20.

9
 The State, in effect, argues that wiretappers who act

pursuant to a court order are no different from neighbors and

other private eavesdroppers. The language and history of the

Wiretap Act, which guide our determination, reveal that the

Legislature intended just the opposite.

B.

To give effect to the Legislature’s intent, we begin with

the words of the statute. L.A. v. N.J. Div. of Youth and Family

Servs., 217 N.J. 311, 324 (2014) (citations omitted). The

Wiretap Act specifically provides that “[n]o otherwise

privileged wire, electronic or oral communication intercepted in

accordance with, or in violation of, the provisions of this act,

shall lose its privileged character.” N.J.S.A. 2A:156A-11

(section 11). As applied to the marital communications

privilege, the statute’s plain language appears to mean that a

confidential communication between two spouses, which would have

remained privileged had there been no interception, does not

lose its privileged status by virtue of a wiretap.

The State interprets section 11 differently. It argues

that because the privilege is personal to spouses alone, and a

third party may testify about an overheard conversation under

Rule 509, an intercepted conversation recounted by an

investigator is not “otherwise privileged” within the meaning of

section 11. To the extent the text is ambiguous, we examine the

10
Act’s history for further guidance. State v. O’Driscoll, 215

N.J. 461, 474 (2013).

Several Senators introduced legislation in 1968, S. 943,

192 Leg. (Nov. 15, 1968), which was enacted as the Wiretap Act

the following year, L. 1968, c. 409. The Act outlined a process

that law enforcement officers must abide by when they apply for

a wiretap order. State v. Ates, 217 N.J. 253, 266 (2014).

The last sentence of section 11 of the Act has been largely

unchanged since the bill’s introduction. Once again, it

provides that “[n]o otherwise privileged wire, electronic or

oral communication intercepted in accordance with, or in

violation of, the provisions of this act, shall lose its

privileged character.” N.J.S.A. 2A:156A-11. The Legislature

inserted the word “electronic” in 1993. L. 1993, c. 29, § 10.

The remaining language in the sentence appeared in the original

bill. Compare L. 1968, c. 409, with N.J.S.A. 2A:156A-11.

The sponsors’ statement to the Senate bill explained that

it was modeled after two sources: (a) the federal wiretap act,

specifically Title III of the Omnibus Crime and Safe Streets

Act, 18 U.S.C.A. §§ 2510-2520, which “established minimum

standards for federal and state law enforcement officials to

follow when seeking to intercept wire, oral, and electronic

communications,” Ates, supra, 217 N.J. at 266 (citing 18

U.S.C.A. § 2516(2)); and (b) a model state statute prepared by

11
Professor G. Robert Blakey of the University of Notre Dame Law

School. S. 943 (Sponsors’ Statement), 192 Leg. (Nov. 15, 1968).

We therefore look to both sources.

The last sentence of section 11 mirrored the following

provision contained in Title III: “No otherwise privileged wire

or oral communication intercepted in accordance with, or in

violation of, the provisions of this chapter shall lose its

privileged character.” Omnibus Crime Control and Safe Streets

Act of 1968, Pub. L. No. 90-351, Title III, 82 Stat. 197, 218

(codified as amended at 18 U.S.C.A. § 2517(4) (1968)). The

legislative history for section 2517(4) observed that

[t]raditionally, the interest of truth in
the administration of justice has been
subordinated in the law to the interest of
preserving privileged communications where
four relationships have been involved:
physician-patient, lawyer-client, clergyman-
confidant, and husband-wife. The scope and
existence of these privileges varies from
jurisdiction to jurisdiction. The proposed
provision is intended to vary the existing
law only to the extent it provides that an
otherwise privileged communication does not
lose its privileged character because it is
intercepted by a stranger.

[S. Rep. No. 90-1097 (1968), reprinted in
1968 U.S.C.C.A.N. 2112, 2189 (citations
omitted); see also Terry, supra, 430 N.J.
Super. at 598-99.]

The New Jersey Act also incorporated, “to a major extent,”

the model statute drafted by Professor Blakey. See S. 943

(Sponsors’ Statement), supra, at 13. Professor Blakey testified

12
before the Senate Committee on Law, Public Safety, and Defense

on September 16, 1968, and provided the Committee with an

annotated copy of the model statute. Hearing on S. 897 before

the S. Comm. on Law, Pub. Safety, & Def., 192d Leg. 28 (Sept.

16, 1968) (Statement of Prof. G. Robert Blakey). The model act

appeared in a law review article that the Committee kept on

file. Ibid. (citing G. Robert Blakey & James A. Hancock, A

Proposed Electronic Surveillance Control Act, 43 Notre Dame L.

Rev. 657 (1968)).

The last sentence of section 11 of the New Jersey Act is

identical to the end of section 8(f) of the model statute: “No

otherwise privileged wire or oral communication intercepted in

accordance with, or in violation of, the provisions of this Act,

shall lose its privileged character.” Blakey & Hancock, supra,

43 Notre Dame L. Rev. at 675. Professor Blakey added a

footnote to the end of that sentence, which states that

[w]hile most jurisdictions today recognize
one or more categories of privileged
communications, they very often hold them
inapplicable where an eavesdropper seeks to
testify. Thus, the privilege is thought to
be solely that of restricting the testimony
of the spouse, confessor, lawyer, or doctor.
The last sentence of this provision is
designed to change that rule. Otherwise,
the use of electronic surveillance
techniques might indirectly undermine the
various social policies represented by the
various privileges.

13
 [Id. at 675 n.39 (emphasis added) (internal
citation omitted).]

Professor Blakey’s footnote responds directly to the

State’s argument and lays it to rest. As Professor Blakey

anticipated, the State here argues that the marital privilege in

Rule 509 is personal to the spouses but does not attach to the

communication. Under that reasoning, a wiretapper, like a

neighbor, would be free to repeat the communication. But, as

Professor Blakey explains, “the last sentence is designed to

change that rule.” Ibid. “Otherwise,” he writes, wiretapping

could undermine the “social policies” underlying various

privileges. Ibid.

Viewed in a different way, the footnote recognizes that but

for the State’s act of listening, pursuant to a wiretap order,

the marital communication would have remained a private

conversation between two spouses. If no one else had heard the

conversation, the spouses could have chosen not to disclose it

and ensured that it remained confidential -- consistent with the

social policies the privilege is designed to protect. The last

sentence of section 11, taken from the model act, demonstrates

that the Legislature did not intend for the Wiretap Act to alter

that outcome. The Act’s history instead reveals that a state-

authorized wiretap, unlike a private eavesdropper, does not

destroy the privilege.

14
 The State’s contrary approach would therefore effectively

read the last sentence of section 11 out of the Wiretap Act. As

the Appellate Division observed, the State’s position -- that a

wiretap interception eliminates confidentiality -- would “render

this key provision of N.J.S.A. 2A:156A-11 a nullity.” Terry,

supra, 430 N.J. Super. at 598 (citing Smith v. Dir., Div. of

Taxation, 108 N.J. 19, 27 (1987) (“[I]t is well-established that

a statute should not be construed in a manner that renders any

portion of it a nullity.”)); see also Jersey Cent. Power & Light

Co. v. Melcar Util. Co., 212 N.J. 576, 587 (2013).

We note, as the Appellate Division did, that Maryland’s

highest court reached the same conclusion when it interpreted

similar statutory language. See Terry, supra, 430 N.J. Super.

at 600 (citing State v. Mazzone, 648 A.2d 978, 983 (Md. 1994)).

Under Maryland law, “[o]ne spouse is not competent to disclose

any confidential communication between the spouses occurring

during their marriage.” Md. Code Ann., Cts. & Jud. Proc. § 9-

105 (LexisNexis 2014). And like the New Jersey Act, the

Maryland wiretapping statute provides that “[a]n otherwise

privileged wire, oral, or electronic communication intercepted

in accordance with, or in violation of, the provisions of this

subtitle, does not lose its privileged character.” Id. at § 10-

407(d).

15
 Relying on those provisions, defendant Mazzone moved to

suppress the contents of two wiretap interceptions of

conversations he had with his wife. Mazzone, supra, 336 Md. at

387. The Maryland Court of Appeals agreed with the defendant’s

position. It interpreted the language in the Maryland wiretap

statute, which parallels section 11, “to preserve any privilege

that would have existed had there been no interception and no

eavesdropper.” Id. at 389. The Court therefore “view[ed] the

statute as preserving the marital communications privilege and

prohibiting the court-authorized eavesdropper from testifying as

to the contents of the communication.” Id. at 389-90.

We are not aware of any case law in New Jersey that is

directly on point. See Terry, supra, 430 N.J. Super. at 597.

State v. Sidoti, 134 N.J. Super. 426 (App. Div. 1975), offers

little guidance. Although in Sidoti the State introduced

intercepted conversations between the defendant and his wife at

trial, the defendant conceded that the conversations “did not

contain confidential communications.” Id. at 430. In addition,

the Appellate Division observed that “the admission of these

conversations, even if error, was harmless beyond a reasonable

doubt.” Id. at 431 (citations omitted).

For the reasons set forth above, we agree with the

Appellate Division that a confidential marital communication

protected by Rule 509 “does not lose its privileged character

16
because it is intercepted by a wiretap.” Terry, supra, 430 N.J.

Super. at 600. Section 11 of the Wiretap Act preserves the

privilege.

IV.

The State alternatively argues that the crime-fraud

exception should apply to communications between spouses. We

agree. Because that change would modify the Rules of Evidence

in a significant way, we propose an amendment to be adopted in a

manner consistent with the Evidence Act.

In general, courts construe privileges narrowly because

they prevent factfinders from hearing relevant evidence and thus

undermine the search for the truth. State v. J.G., 201 N.J.

369, 383 (2010) (citations omitted). Courts therefore accept

privileges “only to the extent that they outweigh the public

interest” in the need for full disclosure. Szemple, supra, 135

N.J. at 413-14 (citing Trammel v. United States, 445 U.S. 40,

100 S. Ct. 906, 912, 63 L. Ed. 2d 186, 195 (1980)). Because the

marital communications privilege, like other privileges, “‘has

as its only effect the suppression of relevant evidence, its

scope should be confined as narrowly as is consistent with the

reasonable protection of marital communications.’” Szemple,

supra, 135 N.J. at 415 (quoting 1 McCormick on Evidence § 82 at

303 (John W. Strong ed., 4th ed. 1992)).

17
 The marital communications privilege is meant to encourage

marital harmony, not to 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. See Fellerman v. Bradley, 99 N.J.

493, 503 (1985) (noting that purpose of attorney-client

privilege is not met by its enforcement in crime-fraud context).

The current version of Rule 509, in effect, immunizes

conversations between spouses about their ongoing and future

joint criminal behavior. As the Appellate Division recognized,

that course not only prevents evidence from being gathered and

admitted, it can also “encourage . . . spousal involvement” in

crime, “thwart law enforcement, and increase the risk to the

public.” Terry, supra, 430 N.J. Super. at 602. Those

legitimate policy concerns outweigh any need to protect spousal

communications about joint participation in crime.

For those and other reasons, many courts have recognized a

crime-fraud exception to the privilege. All of the eleven

federal circuits to consider the question have done so. See

United States v. Evans, 966 F.2d 398, 401 (8th Cir.), cert.

denied, 506 U.S. 988, 113 S. Ct. 502, 121 L. Ed. 2d 438 (1992);

United States v. Marashi, 913 F.2d 724, 731 (9th Cir. 1990);

United States v. Malekzadeh, 855 F.2d 1492, 1496 (11th Cir.

1988), cert. denied, 489 U.S. 1029, 109 S. Ct. 1163, 103 L. Ed.

18
2d 221 (1989); United States v. Estes, 793 F.2d 465, 466-68 (2d

Cir. 1986); United States v. Picciandra, 788 F.2d 39, 43 (1st

Cir.), cert. denied, 479 U.S. 847, 107 S. Ct. 166, 93 L. Ed. 2d

104 (1986); United States v. Sims, 755 F.2d 1239, 1243 (6th

Cir.), cert. denied, 473 U.S. 907, 105 S. Ct. 3533, 87 L. Ed. 2d

656 (1985); United States v. Neal, 743 F.2d 1441, 1446-47 (10th

Cir. 1984), cert. denied, 470 U.S. 1086, 105 S. Ct. 1848, 85 L.

Ed. 2d 146 (1985); United States v. Broome, 732 F.2d 363, 365

(4th Cir.), cert. denied, 469 U.S. 855, 105 S. Ct. 181, 83 L.

Ed. 2d 116 (1984); United States v. Ammar, 714 F.2d 238, 258 (3d

Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d

311 (1983); United States v. Mendoza, 574 F.2d 1373, 1381 (5th

Cir.), cert. denied, 439 U.S. 988, 99 S. Ct. 584, 58 L. Ed 661

(1978); United States v. Kahn, 471 F.2d 191, 194 (7th Cir.

1972), rev’d on other grounds, 415 U.S. 143, 94 S. Ct. 977, 39

L. Ed. 2d 225 (1974). The Appellate Division also catalogued

multiple states that have adopted a crime-fraud exception by

statute, rule, or case law. See Terry, supra, 430 N.J. Super.

at 603 nn.16-18.

In addition, other evidentiary privileges in New Jersey

recognize a crime-fraud exception. See N.J.R.E. 504(2)(a)

(attorney-client privilege); N.J.R.E. 506(f) (physician-patient

privilege); N.J.R.E. 511(2) (cleric-penitent privilege);

19
N.J.R.E. 514 (trade-secret privilege); N.J.R.E. 519(b)

(mediation privilege).

The adoption of the Rules of Evidence was not meant to “bar

the growth and development of the law of evidence to the end

that the truth may be ascertained and proceedings justly

determined.” N.J.R.E. 102. With those aims in mind, we believe

that the marital communications privilege should be updated to

strike an appropriate balance between marital privacy and the

public’s interest in attaining justice. Specifically, Rule 509

should be amended to include a crime-fraud exception that is

similar to the exceptions that apply in federal and state courts

throughout the nation as well as other evidentiary rules in New

Jersey.

V.

The question, then, is how to proceed. State v. Byrd, 198

N.J. 319 (2009), contains a comprehensive discussion of the

various options. We adhere to the principles summarized in that

opinion: “evidence rules that dramatically impact the conduct

of trials” should be adopted by way of the Evidence Act, “while

. . . evidence rule changes of lesser consequence” can “be

developed through case law.” Id. at 345 (citations omitted).

For relatively minor changes to the Rules of Evidence, the

Court has historically acted on its own. In State v. Guenther,

181 N.J. 129 (2004), for example, the Court adopted a narrow

20
exception to Rule 608. In general, that rule bars the use of

specific instances of conduct to attack a witness’s character

for truthfulness. N.J.R.E. 608(a). The limited exception the

Court carved out in Guenther allows a defendant to impeach a

witness’s credibility by showing that the witness had made a

prior false criminal accusation. Id. at 154; see also N.J.R.E.

608(b). That exception applies only when the credibility of a

key witness “is the central issue in a criminal case.” Id. at

160. The Court emphasized that it was “not creating a new rule

of evidence, but merely carving out a narrow exception to the

common law rule embodied in N.J.R.E. 608.” Id. at 159.

By contrast, when a “fundamental change” with “serious and

far-reaching” consequences is at stake, the Court should follow

the procedures of the Evidence Act. State v. D.R., 109 N.J.

348, 352, 375-76 (1988). The Evidence Act reflects a “pragmatic

compromise” among the branches of government and calls for the

collaborative effort of all three to adopt significant changes

to the Rules of Evidence. Id. at 352, 374-76.

The Evidence Act contains two different paths to adopt new

evidence rules. Byrd, supra, 198 N.J. at 342. As Byrd

outlines,

[o]ne path allows for a Judicial Conference,
which includes judges, lawyers, and
academics, to consider a draft of new
evidence rules. See N.J.S.A. 2A:84A-34. On
recommendation of the Conference, and

21
 approval by the Supreme Court, the proposed
new evidence rules would be announced “on
September 15 next following such Judicial
Conference,” and then filed with the
Legislature and the Governor. See N.J.S.A.
2A:84A-35. Under that approach, unless
rejected by a joint resolution “adopted by
the Senate and General Assembly and signed
by the Governor,” the proposed evidence
rules “take effect on July 1 next
following.” N.J.S.A. 2A:84A-36. . . .

The other path for the adoption of
evidence rules permits the Supreme Court, at
any time and without presentation to a
Judicial Conference, to submit the proposed
rules to the Senate and General Assembly,
for their approval by joint resolution, and
to the Governor for his signature. See
N.J.S.A. 2A:84A-38; see also [D.R., supra,
109 N.J. at 375.]

[198 N.J. at 342-43.]

The Court has followed the Evidence Act “as a matter of

comity” on a number of occasions. D.R., supra, 109 N.J. at 376.

In D.R., the Court declined to adopt a “tender years” exception

to the hearsay rule on its own. Id. at 375-76. Because of the

“significant” nature of the change, and its “serious and far-

reaching” consequences, the Court instead proposed an amendment

to the Rules of Evidence and transmitted it to the Legislative

and Executive Branches consistent with the Evidence Act. Id. at

351-52, 375-76. The current rule can be found at N.J.R.E.

803(c)(27).

In Byrd, supra, the Court likewise embraced a substantial

change to the hearsay rules -- the adoption of a forfeiture-by-

22
wrongdoing exception -- and submitted the proposal to the

Senate, General Assembly, and Governor for their review and

approval. 198 N.J. at 325, 357. The Judiciary later convened a

Judicial Conference, pursuant to N.J.S.A. 2A:84A-34, which

proposed a draft rule. See State v. Rose, 425 N.J. Super. 463,

467 (App. Div. 2012). Because the Legislature and Governor did

not reject the proposal, see ibid., it is now codified at

N.J.R.E. 804(b)(9).

More recently, the Court concluded that there was “neither

warrant nor right” for it “to engraft a new exception” onto the

spousal testimonial privilege. Mauti, supra, 208 N.J. at 541

(emphasis added).

The type of amendment to the evidence rules proposed in

this case is comparable to the modifications recommended in D.R.

and Byrd. Adding a crime-fraud exception to the marital

communications privilege would amount to a “fundamental change”

with “serious and far-reaching” consequences. D.R., supra, 109

N.J. at 352, 375-76. We therefore invoke the procedures of the

Evidence Act and decline to adopt the change on our own.2

Pursuant to N.J.S.A. 2A:84A-38, we propose a crime-fraud

2
The State conceded at oral argument before the Appellate
Division, see Terry, supra, 430 N.J. Super. at 589, and in its
motion for leave to appeal to this Court, that the Supreme Court
should follow the Evidence Act and not proceed unilaterally to
craft a crime-fraud exception. In a later supplemental filing,
the State argued that the Court can act on its own. The State’s
brief did not offer a reason for its new position.
23
exception to the marital communications privilege at Appendix A,

and transmit it for approval by a joint resolution of the

Legislature and for the Governor’s signature. We first discuss

the language of the proposed amendment.

VI.

There are a number of sources to consider for a crime-fraud

exception. As noted earlier, many states and federal circuits

have adopted one, and the New Jersey Rules of Evidence also

contain various models.

Judge Weinstein, in his authoritative treatise on evidence,

observed that most circuits have held that the government may

present “testimony about confidential communications involving

[i] future or ongoing crimes [ii] in which the spouses were

joint participants [iii] at the time of the communications.”

Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence

Manual § 18.05 n.52 (Joseph M. McLaughlin ed., 2014).

Other privileges in the New Jersey rules address some of

the same themes. See N.J.R.E. 504(2)(a) (attorney-client

privilege “shall not extend to a communication in the course of

legal services sought or obtained in aid of the commission of a

crime or a fraud”); N.J.R.E. 506(f) (no physician-patient

privilege if “judge finds that . . . the services of the

physician were sought or obtained to enable or aid anyone to

commit or to plan to commit a crime or a tort, or to escape

24
detection or apprehension after the commission of a crime or a

tort”); N.J.R.E. 511(2) (permitting cleric to waive cleric-

penitent privilege if “the privileged communication pertains to

a future criminal act”); N.J.R.E. 514 (“The owner of a trade

secret has a privilege . . . to refuse to disclose the secret .

. . if the judge finds that the allowance of the privilege will

not tend to conceal fraud or otherwise work injustice.”);

N.J.R.E. 519(b) (no mediation privilege if someone

“intentionally uses a mediation to plan, attempt to commit or

commit a crime, or to conceal an ongoing crime or ongoing

criminal activity”).

Judge Weinstein’s formulation effectively balances the

relevant interests. It promotes the purposes of the privilege:

to encourage the sharing of confidences between spouses and

protect marital harmony and privacy. See Weinstein & Berger,

supra, § 18.05 n.35-37. At the same time, it roots out

communications between spouses who are both involved in criminal

activity, which “are not worthy of protection.” Ammar, supra,

714 F.2d at 257 (citing cases). The above construction also

does not limit the exception to communications about “patently

illegal activity,” a concept that lacks clarity and could prove

difficult to apply. See United States v. Parker, 834 F.2d 408

(4th Cir. 1987) (noting ambiguity of “what is meant by ‘patently

illegal’ activity”), cert. denied, 485 U.S. 938, 108 S. Ct.

25
1118, 99 L. Ed. 2d 279 (1988). Only a minority of circuit

courts have adopted that approach. See Evans, supra, 966 F.2d

at 401; Sims, supra, 755 F.2d at 1243; Kahn, supra, 471 F.2d at

194.

To be clear, under the above test, a confession made in

confidence to an innocent spouse would remain confidential, but

collusion between spouses to advance a joint criminal enterprise

would not. Also, in a criminal investigation that involves a

wiretap order, law enforcement officials would of course be

required to adhere to the minimization requirements and other

safeguards set forth in the Wiretap Act. See, e.g., N.J.S.A.

2A:156A-12.

We therefore propose that Rule 509 be amended in the

following manner: the marital communications privilege should

not protect a communication that relates to an ongoing or future

crime or fraud in which the spouses were joint participants at

the time of the communication. A proposed revision to Rule 509,

with that change, appears at Appendix A. The proposal also

includes stylistic edits designed to make the rule easier to

follow.

VII.

Defendants argue that if a crime-fraud exception is

adopted, it should not apply to them because the State has not

shown that they “were furthering a criminal activity . . . [or]

26
that they conspired to commit a crime.” If the Legislature and

Governor approve a crime-fraud exception to Rule 509 before

defendants’ trial begins, and if the exception were found to be

available in this case, see Rose, supra, 425 N.J. Super. 463

(rejecting ex post facto challenge and holding that forfeiture-

by-wrongdoing exception to hearsay rule applied to wrongdoing

that occurred before new rule’s effective date), it would then

be up to the trial court to determine if the exception applies

in light of the facts of this case. At this time, we do not

opine on the constitutional ex post facto question that

defendants’ argument implicates.

VIII.

Defendants have raised additional arguments that are not

properly before this Court. They argue that the State failed to

show a “special need” to monitor Savoy’s cell phones under

N.J.S.A. 2A:156A-11 –- a claim that the Appellate Division

rejected. See Terry, supra, 430 N.J. Super. at 595. Defendants

also argue that the appellate panel “fail[ed] to discuss whether

interception of spousal communications violates the minimization

requirements of the Wiretap Act.” Because defendants did not

file a cross-appeal, we do not address those arguments.

IX.

For the reasons outlined above, we affirm the judgment of

the Appellate Division. We also forward to the Senate and

27
General Assembly, for their approval by joint resolution, and to

the Governor for his signature, a crime-fraud exception to the

marital communications privilege.

JUSTICES LaVECCHIA, ALBIN, PATTERSON and FERNANDEZ-VINA;
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in CHIEF JUSTICE RABNER’s opinion.

28
 SUPREME COURT OF NEW JERSEY

NO. A-71 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

YOLANDA TERRY and TERON
SAVOY,

Defendants-Respondents.

DECIDED July 22, 2014
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7

1
Appendix A

Proposed Revision to Marital Communications Privilege --
changes to the current rule are in bold; deletions are crossed
out.

N.J.R.E. 509 Marital Privilege -- Confidential Communications

(1) No person shall disclose any communication made in
confidence between such person and his or her spouse.

(2) There is no privilege under this rule

(a) if unless both spouses shall consent to the disclosure or;

(b) unless if the communication is relevant to an issue in an
action between them or;

(c) in a criminal action or proceeding in which either spouse
consents to the disclosure, or;

(d) in a criminal action or proceeding coming within Rule 23(2)
[Rule 501(2)].; or

(e) in a criminal action or proceeding if the communication
relates to an ongoing or future crime or fraud in which the
spouses were joint participants at the time of the
communication.

(3) When a spouse is incompetent or deceased, consent to the
disclosure may be given for such spouse by the guardian,
executor or administrator. The requirement for consent shall
not terminate with divorce or separation. A communication
between spouses while living separate and apart under a divorce
from bed and board shall not be a privileged communication.

2