Young, J.c.c. Temporarily Assigned.
Should the statutory privilege granted marriage counselors be recognized when interposed in response to process served by both the prosecutor and defense counsel to compel the testimony and records of a counselor for use at a hearing on defendant's competency to stand trial on a charge of murder? N.J.S.A. 45:8B-29. This is the issue presented on the application of Roland Reed, Ph.D., a licensed marriage counselor, to quash a subpoena duces tecum served upon him by counsel for defendant and a subpoena ad testificandum served by the Prosecutor of Hudson County in this pending criminal action. Both the prosecutor as well as defense counsel argue that the marriage counselor may not invoke the privilege in the circumstances presented in this case. Defense counsel asserts that the records and the testimony are essential to a determination of the issues of competency as well as guilt.
Defendant Thomas Roma is charged in a four-count indictment with the premeditated slaying of his infant son John with a knife on or about August 16, 1975 in the City of Bayonne, and with the premeditated slaying of his wife Jean with an axe at the same time and place aforementioned. At a pretrial conference the court was advised that a major issue at the trial will be defendant's sanity at the time the acts alleged were committed. Preliminarily, the question of
the competency of defendant, now in Trenton Psychiatric Hospital, to stand trial will have to be determined. In preparation for the scheduled hearing into the issues here noted, Roland Reed, Ph.D., a licensed marriage counselor of the State of New Jersey and a Presbyterian minister, was served with subpoenas, as previously mentioned.
In his affidavit in support of the application to quash, Dr. Reed states that during the months of March through August 1975 he rendered marriage counseling to Thomas Roma and to his wife Jean, now deceased. Those conferences, Dr. Reed continues, were pursuant to his duties as a marriage counselor. To protect the communications of that relationship, Dr. Reed invokes the provisions of the Practicing Marriage Counseling Act, N.J.S.A. 45:8B-1 et seq. , more particularly § 29 thereof which reads as follows:
Any communication between a marriage counselor and the person or persons counseled shall be confidential and its secrecy preserved. This privilege shall not be subject to waiver, except where the marriage counselor is a party defendant to a civil, criminal or disciplinary action arising from such counseling, in which case, the waiver shall be limited to that action.
This statute is also reported as Evid. R. 28A-1.
Counsel for the State argues that the privilege does not inure to the benefit of the marriage counselor, but only to the spouses, reasoning that it is only a husband or a wife who would be embarrassed by the unauthorized disclosure of the information imparted in confidence to the counselor. In the pending criminal action the wife is dead and the surviving husband, through his assigned counsel, pleads with the court to compel disclosure in support of his defense of insanity. Thus, he continues, there is no public policy to be served by enforcing the privilege in the circumstances. Moreover counsel for the State points to the provisions of N.J.S.A. 2A:84A for the principle that there is no interspousal privilege to the compulsion of testimony when a spouse or child of a spouse are the victims of a crime. Lastly, counsel argues
that the privilege should be restricted to situations in which there is no mutual consent by the spouses or by a surviving spouse.
Counsel for defendant not only adopts the reasoning of the State here summarized, but also contends that the privilege under review is a "hearsay type" of privilege confined to oral communications, whereas counsel intends to consult with Dr. Reed about his observations of the demeanor and appearance of defendant during the counseling sessions.
In response, counsel for Dr. Reed points to the plenary scope of the statutory language against waivability and argues that the very fact that the Legislature chose to insert an exception when the counselor is a party defendant indicates that the statute will admit none other.
The problem presented is a novel one in New Jersey and, as research indicates, in every other jurisdiction. The statute under review was the subject of comment in two reported cases. In Wichansky v. Wichansky , 126 N.J. Super. 156, 160 (Ch. Div. 1973), a matrimonial action, the court ruled that the Legislature intended to afford the privilege to all marriage counselors, whether they were licensed under the act or engaged in marriage counseling as part of their practice in another profession. In that action a subpoena directed to a psychologist who had done marriage counseling was quashed. More recently, the Appellate Division, in the course of phrasing appellant's argument, indicated in dictum that the statutory privilege of ...