touched her vagina accidentally. This admission was
reported to the prosecutor’s office, and defendant
thereafter orally repeated his admission to an investigator
of that office but refused to give a taped statement.
The trial court determined that the defendant’s
statements to the bail unit investigator were protected
because the latter was an employee of a state judiciary’s
criminal case management unit. Part of the investigator’s
duties was to assist the defendant in determining
eligibility for public defender representation, and thus he
was an agent of the Public Defender’s Office. Also, an
arrestee’s interview with such an investigator -- a
“necessary intermediary” -- requires open communica-
tion without the need for the presence of counsel. Here
the defendant’s statements to the investigator thus fell
within the attorney-client privilege, and that privilege
was not waived when the investigator reported the
defendant’s statement to his supervisor and then to the
prosecutor’s office.
N.J.R.E. 504(3) provides for a presumption that a
lawyer-client communication has been made in
confidence, unless knowingly made within the hearing of
one whose presence nullifies the privilege. A
communication made with the intent that it be
communicated to others is not privileged, however. State
v. Schubert, 235 N.J. Super. at 220.
B. Cleric-Penitent Privilege
In State v. Szemple, 135 N.J. 406, 422-23 (1994),
the Supreme Court held that N.J.S.A. 2A:84A-23
(N.J.R.E. 511), as then existing, conferred “a testimonial
privilege only on clergypersons,” and the penitent had no
power to preclude disclosure. Responding to this ruling,
the Legislature quickly amended the privilege to allow
both the cleric and the penitent to hold it.
A “cleric” must be a “person or practitioner [of any
religion] authorized to perform “functions similar to a
priest, rabbi, or minister. Communications to a nun who
was not so authorized were held not to be privileged. In
re Murtha, 115 N.J. Super. 380, 387 (App. Div. 1971).
The communication must be made in confidence in
the cleric’s “professional character, or as a spiritual
adviser.” Thus, a confession to a Baptist deacon who was
also a New Jersey State Trooper and performing both
functions was held to be not privileged in State v. Cary,
331 N.J. Super. 236 (App. Div. 2000).
C. Marital PrivilegeN.J.R.E. 509 (N.J.S.A. 2A:84A-22), formerly Evid.
R. 28, permits disclosure in a criminal proceeding of
confidential communications between spouses if either
spouse consents. This is a significant change from prior
law; before amendment in November 1992, disclosure
was permitted only with the consent of both spouses.
Thus, while the policy underlying the privilege is to
encourage free and uninhibited communication between
spouses and to protect the sanctity and tranquility of
marriage, “the amendment clearly demonstrates the
Legislature’s intent to limit significantly the preclusive
effect of the marital-communications privilege.” State v.
Szemple, 135 N.J. 406, 414 (1994).If a confidential spousal communication is overheard
by a third party, then the third party may testify to the
communication. In State v. Sidoti, 134 N.J. Super. 426,
430-31 (App. Div. 1975), the State was in possession of
tape recordings of non-incriminatory conversations
between the defendant and his wife. The tape recordings
were introduced to corroborate the identification of
defendant in other telephone conversations. The
Appellate Division held that the tapes were properly
admitted and that generally “a third person overhearing
a confidential communication between a husband and
wife may testify as to it.” The same is true with respect
to a written communication obtained by a third party.
State v. Szemple, 135 N.J. at 414-19.While the confidential communications privilege of
N.J.R.E. 509 survives a subsequent divorce, it must be
proved that the communication was confidential in
nature and made during the course of the marriage. In
State v. Brown, 113 N.J. Super. 348 (App. Div. 1971), the
State adduced the testimony of the defendant’s divorced
wife to the effect that, during their marriage she
overheard the defendant make incriminatory statements
to a third party. The Appellate Division held that this
testimony was not barred by former Evid. R. 28.The marital testimonial privilege is not extended to
encompass conversations between a parent and child. In
the Matter of Gail D., 217 N.J. Super. 226 (App. Div.
1987).The privilege in N.J.R.E. 509 does not apply in a
criminal action or proceeding coming within N.J.R.E.
501(2) (N.J.S.A. 2C:84A-17), formerly Evid. R. 23(2).
This provision states: