The marital communications privilege, codified in N.J.S.A. 2A:84A-22(1) and N.J.R.E. 509, bars spouses and civil union partners from disclosing “any communication made in confidence between such person and his or her spouse or civil union partner.” State v. Bailey, 251 N.J. 101, 106 (2022). “The ‘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.'” Id. at 118-19 (quoting State v. Mauti, 208 N.J. 519, 533 (2012)). “The United States Supreme Court has described the privilege as ‘essential to the preservation of the marriage relationship.’” Id. at 119 (quoting Wolfle v. United States, 291 U.S. 7, 14 (1934)).
Nonetheless, on July 22, 2014, our Supreme Court proposed that the Legislature adopt a crime-fraud exception to the marital communications privilege. Ibid. at 106. In compliance with the Court’s proposal, “[e]ffective November 9, 2015, the Legislature amended N.J.S.A. 2A:84A-22 to provide that no marital privilege shields communications ‘in a criminal action or proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication.’” Id. at 106-07. In other words, the marital privilege still protects communications between spouses or partners, including text messages, but not if the communications relate to a criminal action.
In State v. Bailey, 251 N.J. at 101, the Court addressed the issue of whether the crime-fraud exception to the marital communications privilege governed text messages that defendant Ashley Bailey exchanged with her husband on September 16, 2014 — after the Court proposed the exception, but before the Legislature enacted it into law. Id. at 107.
In that case, the defendant, Ashley Bailey and Edwin Ingram were married in 2011 and remained married until Edwin’s death in 2016. Id. at 107-108. Ashley joined the Camden County Police Department as a patrol officer on December 14, 2013. Id. at 108. In April 2014, the New Jersey State Police commenced “Operation Southern District,” an investigation into an alleged drug distribution network operating in Camden, and identified Edwin, his brother, his half-brother and three other men as targets of the investigation. Id. at 108.
As a Camden County police officer, Ashley had access to a secure records-management system containing police reports. Ibid. She used that access to view several police reports, including a report detailing an undercover police officer’s controlled drug purchase from her husband. Ibid. As “Operation Southern District” progressed, the detectives obtained Communications Data Warrants (CDW) of Edwin and the other men. Id. at 109.
On September 16, 2014, Ashley and Edwin exchanged a lengthy text message, suggesting that was the subject of an Internal Affairs investigation, she knew she had jeopardized her position as a police officer to assist him, and that he sought to reassure her about the meaning of that investigation. Id. at 129. Ashley wrote, in part:
I know. If not, we still got each other and that’s good enough for me. It’s time for you to choose, though. Choose to let us burn or choose to help us beat this. I can’t make that decision for us. Look where it got us now. I could use a hug and a foot rub. You up for it?
[Id. at 110.]
On October 28, 2014, the detectives arrested Ashley and Edwin and the other targets of “Operation Southern District.” Id. at 112. They executed search warrants at several of the targets’ homes, where they recovered drugs, paraphernalia, guns, and cellphones. Ibid.
At trial, Ashley moved to exclude the text messages that she exchanged with her husband on the ground that they were protected by the marital communications privilege, N.J.S.A. 2A:84A-22. Id. at 114. The trial judge denied the motion and admitted the text messages. Ibid. The Appellate Division affirmed the defendant’s conviction and sentence. Id. at 116.
The New Jersey Supreme Court held that the crime-fraud exception to the marital communications privilege did not apply to the text messages at issue and thus the trial court erred in admitting them into evidence. Id. at 127. The Court set forth that Ashley’s “constitutional challenge to the application of the amended version of N.J.R.E. 509 is premised on the clauses of the United States and New Jersey Constitutions that ‘prohibit the Legislature from passing ex post facto laws.’” Id. at 122 (quoting State v. Brown, 245 N.J. 78, 87-88 (2021) (citing U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3)). The Court held “[i]n the absence of evidence of legislative intent that the amendment to N.J.R.E. 509 would retroactively abrogate a privilege, we view that amendment to apply prospectively to marital communications that were made on or after the effective date.” Id. at 127. However, the Court affirmed Ashley’s conviction, finding that the trial court’s error in admitting the evidence was harmless given the other overwhelming evidence of Ashley’s guilt of the official misconduct charges. Id. at 132.