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NJ Court Reaffirms Spousal Privilege


by in Criminal Defense

State v. James J. Mauti, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 187 (September 8, 2010) – “This appeal requires us to determine whether the spousal privilege in N.J.R.E. 501(2) can be pierced by applying the factors outlined by the Court in In re Kozlov, 79 N.J. 232, 243-44 (1979), used in that case to pierce the privilege afforded to communications between an attorney and his or her client. The trial court applied the Kozlov factors to compel the spouse of defendant James J. Mauti to testify as a witness for the State in this criminal action. We now reverse the trial court’s ruling and hold that the factors identified by the Court in Kozlov are inapplicable to pierce the status privilege conferred by N.J.R.E. 501(2)…. We discern no legal basis for disregarding the statute’s clear mandate to preclude the spouse of an accused from testifying in a criminal action except to prove the fact of the marriage. The three statutory exceptions to this straightforward injunction are not applicable here. Equally absent are the competing constitutional interests that the Court in Kozlov found must be present to tip the scale in favor of piercing the privilege in the absence of a statutory exception. Even if, arguendo, we were to consider the concerns raised by the State to be of sufficient magnitude to render the spousal testimonial privilege subject to the three-prong test in Kozlov, we are satisfied that the privilege would prevail. Unquestionably the State can show that it has a legitimate need for Jeannette’s testimony and that such testimony is both relevant and material to its case against defendant, thus satisfying prongs one and two under Kozlov. We are not convinced, however, that the State has proven, by a preponderance of the evidence, that this information cannot ‘be secured from any less intrusive source.’ Kozlov, supra, 79 N.J. at 243-44.”






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