Spousal privilege (also called marital privilege or husband-wife privilege) is a term used in the law of evidence to describe two separate privileges: the communications privilege and the testimonial privilege. Both types of privilege are based on the policy of encouraging spousal harmony, and preventing spouses from having to condemn, or be condemned by, their spouses.The WSJ reports:
A bill introduced in New Jersey would make it easier for prosecutors to force a newlywed to testify against a spouse.Here is the law's stated rationale:
If enacted, a spouse could be forced to testify against a husband or wife if, before getting married, the person was a “witness in the criminal action” of the partner and was aware of an investigation.
Introduced by Republican Sen. Thomas Kean, Jr., the legislation would also deny spousal privilege to someone who handles “evidence related to the criminal action in a manner that changes the nature of the evidence or disrupts its chain of custody.”
Under New Jersey’s spousal privilege law, a spouse or civil-union partner cannot be compelled to testify “except to prove the fact of marriage or civil union.” (The privilege has been around for a while, as fans of HBO’s “Boardwalk Empire”. ...
The bill responds to the New Jersey Supreme Court ruling in State v. Mauti, 208 N.J. 519 (2012). The Court considered whether the existing spousal/partner privilege against testifying, as set forth in section 17 of P.L.1960, c.52 (C.2A:84A-17), could be pierced to force a witness, who at the time of an alleged criminal sexual assault, was the girlfriend of the accused, and who had provided testimony before a grand jury concerning (1) the alleged criminal act and (2) her handling of evidence related to that act; soon after, the girlfriend and the accused got married, and the day after the marriage, the former girlfriend, now wife of the accused, invoked spousal privilege and refused to testify in the trial of the accused. The Court determined that the invoking of the spousal privilege by the former girlfriend could not be pierced for the trial, based upon the existing statutory scope of the privilege. Although the accused had been indicted for four crimes, including first degree aggravated sexual assault (under N.J.S.2C:14-2), without the benefit of testimony from the witness, the jury only convicted the accused of third degree aggravated criminal sexual contact (under N.J.S.2C:14-3).So let me get this straight. A man and woman have sexual relations and get married. The police and prosecutors somehow decide that there was something wrong with the pre-marriage sexual relations, and prosecute the man. The wife does not cooperate, and they only get a conviction on a lesser charge. So the NJ legislators want to amend the law to force her cooperation!
This may seem minor, but it is one of a long sequence of legal changes that are redefining marriage for the worse. More and more, the state is regulating inter-spousal relations and child-rearing. Usually these laws are pushed by Democrats. This law's sponsor is a Republican. The purpose is to give the state the authority to bust up what would otherwise be a happy marriage.
Here is the NJ case, where a man was accused of doping and assaulting his girl-friend's sister:
On July 28, 2007, Jeannette and defendant announced their engagement and scheduled their wedding for October 28, 2007. Based, in part, on the results of various lab tests—revealing the presence of “chloral hydrate,” a date-rape drug in Joanne's urine—the State filed a criminal complaint against defendant on August 16, 2007, charging him with first-degree aggravated sexual assault. It also filed an application to enjoin Jeannette and defendant from marrying until the pending criminal charge was resolved. The State's application was denied on the ground that there was no proof that what was scheduled to take place was a “sham marriage.” Thereafter, the Appellate Division rejected the State's emergent application to bar the marriage. Thus, on October 28, 2007, Jeannette and defendant were married. On October 29, 2007, Jeannette's attorney informed the State that she would be invoking the spousal privilege pursuant to N.J.R.E. 501(2) for any future proceedings, and would be seeking to preclude the State from using her testimony during the grand jury proceedings.I never heard of a state trying to stop a marriage to avoid a privilege.
If the facts are correct as presented, the court ruled that the prosecutors do not need the wife's testimony. So it upheld the privilege, but probably would have broken it if the prosecutor made a good argument that it needed the testimony.