The spouse of the accused in a criminal action shall not
testify in such action except to prove the fact of marriage
unless (a) such spouse consents, or (b) the accused is
charged with an offense against the spouse, a child of the
accused or of the spouse, or a child to whom the accused
or the spouse stands in the place of a parent, or (c) such
spouse is the complainant.
By its terms, it is inapplicable if the parties are
divorced when the testimony is offered at trial. State v.
Lado, 275 N.J. Super. 140, 151 n.6 (App. Div.), certif.
denied, 138 N.J. 271 (1994).
The rule does not preclude a defendant from
compelling the testimony of his spouse on his behalf.
State v. Santoro, 229 N.J. Super. 501, 506-07 (App. Div.
1988).
The testimonial privilege of N.J.R.E. 501(2) is
inapplicable if the defendant is charged with an offense
against his or her spouse or child. In State v. Eason, 138
N.J. Super. 249 (App. Div. 1975), a defendant, who was
charged with murder, had slapped his wife during the
criminal transaction. No complaint or indictment for the
assault on his wife was ever filed against the defendant.
The Appellate Division held that since there were no
pending charges relating to that assault, the defendant’s
wife could not, under former Evid. R. 23(2), testify
against him.
However, a spouse may give testimony regarding an
entire criminal event of which the offenses against him or
her were just a part, even if the offenses against the spouse
are tried separately or are of a lesser nature. State v. Briley,
53 N.J. 498, 507 (1968); see also State v. Lado, 275 N.J.
Super. at 153-55.
Where spouses are co-defendants, and there is a
realistic prospect that one spouse might incriminate
another, then a severance must be granted if sought
before trial. State v. Ospina, 239 N.J. Super. 645, 652
(App. Div. 1990), certif. denied, 127 N.J. 321 (1992);
State v. White, 195 N.J. Super. 457 (Law Div. 1984). If
not raised, however, it can be deemed waived. State v.
Ospina, 239 N.J. Super. at 654.
The assertion of the marital privilege should not take
place before the jury. State v. Piscopo, 131 N.J. Super. 257
(App. Div. 1974). If a prosecutor wishes to call a
defendant’s spouse as a witness and the prosecutor is
uncertain as to whether or not a marital privilege will be
invoked, the proper course is for him to request a voir dire
to determine if there will be a valid assertion of the
privilege.In State v. Walker, 80 N.J. 187 (1979), the Supreme
Court held that the prosecutor’s summation comments
to the jury concerning defendant’s failure to call his wife
as a witness in support of his alibi was not a violation of
defendant’s marital privilege under former Evid. R.
23(2), since the defendant in effect waived his privilege
by indicating during the course of the trial that his wife
as a witness would support his defense. See also State v.
Lowry, 49 N.J. 476 (1967), where the Court held that a
prosecutorial comment concerning the nonappearance of
a defendant’s wife as a witness was proper where the
defendant indicated during the trial that he intended to
call his wife as a witness.The marital privilege has been held to be
inapplicable to proceedings before the State Commission
of Investigation since the privilege only prohibits
testimony in the courtroom by a spouse and does not
prevent the State from obtaining information from one
spouse in order to aid in the other’s apprehension. In re
Vitabile, 188 N.J. Super. 61 (App. Div. 1981), certif.
denied, 94 N.J. 506 (1983).The attempted marriage of a defendant to a witness,
for the purpose of invoking N.J.R.E. 501(2), may be
admissible as evidence of consciousness of guilt. State v.
Rivera, 232 N.J. Super. 165, 174 (App. Div.), certif.
denied, 117 N.J. 169 (1989).D. Marriage or Family Therapist PrivilegeUnder N.J.S.A. 45:8B-29 (N.J.R.E. 510), a privilege
is created with regard to communications between a
marriage or family therapist and the person or persons
being counseled. This privilege applies to all
communications, confidential or not, and applies to all
marriage counselors whether licensed or not under the
Act. Kinsella v. Kinsella, 150 N.J. 276, 304-05 (1997);
Wichansky v. Wichansky, 126 N.J. Super. 156 (Ch. Div.
1973). However, where both the husband and the wife
voluntarily consent to a waiver of the privilege, the
marriage counselor cannot claim an independent
privilege for himself. Touma v. Touma, 140 N.J. Super.
544 (Ch. Div. 1976). One party may not force disclosure
of communications made by another party when both
were engaged in common therapy. Kinsella v. Kinsella,
150 N.J. at 305.In State v. Roma, 140 N.J. Super. 582 (Law Div.
1976), supplemented 143 N.J. Super. 504 (Law Div.