On appeal from the Superior Court of New Jersey, Law Division, Morris County.
J.h. Coleman, Arnold M. Stein and Conley. The opinion of the court was delivered by Conley, J.A.D. Arnold M. Stein, J.A.D., Dissenting.
During defendant's trial for murder and after the State had rested its direct case, the State moved to reopen to introduce two alleged confessions by defendant. One was contained in a letter written to defendant's wife and obtained by her father. The second was allegedly made to a "minister of visitation" during the minister's visits to defendant while he was incarcerated. Defendant objected to the use of this evidence on the grounds the former was protected by Evid.R. 28, N.J.S.A. 2A:84A-22, and the latter by Evid.R. 29, N.J.S.A. 2A:84A-23. The State's motion, however, was granted and defendant's subsequent motion for mistrial denied. On interlocutory appeal, we reversed the trial court's denial of defendant's motion for mistrial and granted leave to appeal to review the trial court's ruling that neither privilege was applicable. We now affirm.
The critical facts concerning application of Evid.R. 28 are as follows. Early in 1991, after defendant had been arrested,
Theresa Boyle, defendant's wife, asked her father, Michael Boyle, to help her move. Theresa had packed many of her belongings in boxes and her father helped her sort them out. During the process, he saw some folded sheets of white paper in one of the boxes. It was a letter to Theresa from defendant. Boyle "said to [himself] I don't know nothing about this guy and this looks like it's going to be something for me to look at," so he kept it. At that time he knew little about his daughter's husband except that he was in jail and accused of murder, and Boyle was worried about Theresa. He stuck the ten-page letter in his shirt to hide it from his daughter.
Later, when Boyle read the letter, he thought it was "dynamite," especially a part of page eight that read: "My first hit was an act of treachery, the ultimate deceit. Four bullets in the back, one in the neck . . . . I never did tell his mother what happened to him. The second I pulled the trigger, I became larger than death to all of my associates." The prosecutor presented evidence which tied the statement in the letter to the murder victim. In ruling that the letter was admissible, the trial Judge concluded that the letter, although it would have been privileged under Evid.R. 28 if in Theresa's possession, lost that protection when it came into her father's possession without her consent, connivance or aid.
The facts concerning application of Evid.R. 29 are as follows. Paul Bischoff, a retired Newark firefighter, served as Minister of Visitation for the Trinity Baptist Church in Montville, having obtained a certificate of ordination to that ministry from the church. During the period between April 1991 and January 1992, in his capacity as visiting minister Bischoff visited defendant in jail about nineteen times. In October or November 1991, defendant admitted to Bischoff during one of his jail visits that he had killed "not one but three."*fn1 Bischoff reported
this admission to defendant's sister and brother-in-law, and possibly to defendant's mother. It was related to the prosecutor by a family member, and the prosecutor's office contacted Bischoff. In ruling that Bischoff's testimony was admissible, the trial Judge initially found that Bischoff did not qualify for the privilege because he was not an ordained clergyperson. However, assuming the application of the privilege, the Judge concluded it had been waived pursuant to Evid.R. 37, N.J.S.A. 2A:84A-29.
Preliminarily, we think it important when considering the scope of various privileges to recognize that privileges preventing disclosure of relevant evidence are not favored and may often give way to a stronger public interest. State v. Briley, 53 N.J. 498, 505-06, 251 A.2d 442 (1969). This is so because such privileges "are obstacles in the path of the normal trial objective of a search for ultimate truth. They are accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure." Id. at 506, 251 A.2d 442. Strict adherence, moreover, to privileges "promotes the suppression of truth, [and] should be construed and applied in sensible accommodation to the aim of a just result." Ibid. Accord State v. Schreiber, 122 N.J. 579, 582-83, 585, 585 A.2d 945 (1991) ("Of privileges, it has been noted that 'their effect . . . is clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light.'" Id. at 582, 585 A.2d 945 (citation omitted)); State v. Shahamet, 228 N.J. Super. 340, 344, 549 A.2d 884 (App.Div.1988). See Evid.R. 7 ("Except as otherwise provided in these rules or by other law of this State . . . (d)
no person has a privilege to refuse to disclose any matter or to produce any object or writing . . . .").
Thus in Schreiber the scope of the physician-patient privilege "in a civil action or in a prosecution for a crime or violation of the disorderly persons law or for an act of juvenile delinquency," N.J.S.A. 2A:84A-22.2, was strictly limited to its express terms and, accordingly, held inapplicable to the admission of hospital blood test results conducted solely for diagnostic reasons in a DWI municipal court proceeding. Schreiber, 122 N.J. at 588, 585 A.2d 945. Similarly, in Lazorick v. Brown, 195 N.J. Super. 444, 456, 480 A.2d 223 (App.Div.1984), the patient-physician privilege was held not to preclude defendants from interviewing plaintiff's treating physician in a medical malpractice trial. Accord Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div.1987). And in In re Murtha, 115 N.J. Super. 380, 387, 279 A.2d 889 (App.Div.), certif. denied, 59 N.J. 239, 281 A.2d 278 (1971), the priest-penitent privilege was held inapplicable to a teaching nun. But see In re Schuman, 114 N.J. 14, 20-21, 552 A.2d 602 (1989), where the court recognized the "public's right to everyone's evidence," but determined the newsperson's privilege was more significant, preventing the State from obtaining from a reporter admissions made to him by a defendant in a murder trial; State v. J.G., 261 N.J. Super. 409, 619 A.2d 232 (App.Div.1993) (victim-counselor privilege encompasses both direct and secondary victims of violence and mistaken release of victims' files by counselor does not constitute a waiver).
Commonly referred to as the marital communications privilege, Evid.R. 28, N.J.S.A. 2A:84A-22, prevents disclosure by a spouse of confidential communications made during marriage except under certain circumstances. At the time the trial Judge ruled on its inapplicability here, Evid.R. 28, N.J.S.A. 2A:84A-22, provided:
No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication.
[ See also Evid.R. 23; N.J.S.A. 2A:84A-17].
As amended by Act of November 17, 1992, L. 1992, c. 142, Evid.R. 28, N.J.S.A. 2A:84A-22, now provides that the disclosure shall not be made:
unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action in or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2) . . . .
The amendment similarly narrows the scope of spousal privilege in Evid.R. 23, N.J.S.A. 2A:84A-17. Thus where previously a defendant spouse in a criminal proceeding could prevent disclosure of relevant evidence by simply not consenting, that unilateral privilege has been removed. Consent of both spouses is no longer required. Effective immediately, the act specifically provides for application "to all criminal actions regardless of the date on which the offense was committed or the action initiated." Act of November 17, 1992, L. 1992, c. 142. See R.S. v. Knighton, 125 N.J. 79, 97, 592 A.2d 1157 (1991).
We view these amendments to both the spousal privilege and the marital communication privilege as significantly limiting their preclusive effect. Although not directly applicable to this appeal, since the disclosure occurred by way of a third party and we do not know whether defendant's wife would now voluntarily disclose the content of the letter, we think the amendments substantially remove the basis of defendant's argument on appeal. In this respect counsel argues that the "threshold question in determining this issue . . . is whether the
wife was a willing participant in the transfer of the letter from wife to father . . . . If the information becomes available to Mr. Boyle through the betrayal or connivance of Mrs. Szemple, to whom the message was directed, the privilege will not be lost." He further asserts: "Mrs. Szemple cannot waive the privilege by either giving the letter to her father or placing it in a position where he comes upon it. Once the communication is completed to the wife it becomes a privileged communication . . . ."
In so arguing, defendant relies primarily upon the comment contained in the 1967 Annotations prepared by the Rules of Evidence Study Commission of the New Jersey Legislature that "once privileged, always privileged." Biunno, N.J.Rules of Evidence, explanation to Evid.R. 28 (1967). This is no longer correct; the communication may now be disclosed by the receiving spouse without restriction and thus it is no longer so that the communication is "once privileged, always privileged."
In any event, we think the trial Judge properly concluded the privilege did not apply. There was no evidence presented that would in any way have suggested that Boyle obtained the letter through any involvement of defendant's wife. The undisputed testimony was that he found it in some boxes while helping her to move and removed it from the house by hiding it in his shirt. Since there was nothing to suggest the letter was in some way disclosed by defendant's wife, Evid.R. 28, N.J.S.A. 2A:84A-22, which directs that "[n]o person [spouse] shall disclose," does not by its express terms apply. Thus we have previously held that the privilege does not prohibit disclosure by third persons who may overhear a spousal conversation or see a document intended to be confidential. See State v. Sidoti, 134 N.J. Super. 426, 430-31, 341 A.2d 670 (App.Div.1975) ("It is generally held that a third person overhearing a confidential communication between a husband and wife may testify as to it." Id. at 430, 341 A.2d 670). See also State v. Young, 97 N.J.L. 501, 505, 117 A. 713 (E. & A.1922) ("A letter . . .
written confidentially by a husband and to a wife, is admissible against the husband when brought into court by a third party," quoting Wharton's Criminal Evidence § 398 (10th ed. 1912) and citing Commonwealth v. Wakelin, 230 Mass. 567, 120 N.E. 209, 212 (1918)).
The view that the marital communication privilege does not apply to a written communication that has come into the possession of a third party is the majority view. The general rule is that if written communications "were obtained surreptitiously or otherwise without the addressee's consent, the privilege should cease." 8 Wigmore on Evidence § 2339, at 668 (McNaughton rev.1961). See 1 McCormick on Evidence § 82, at 302-04 (Strong ed., 4th ed. 1992); C.J. Miller, Annotation, Applicability of Marital Privilege to Written Communications Between Spouses Inadvertently Obtained by Third Person, 32 A.L.R. 4th 1177-87 (1984) (collecting cases). See also Young, 97 N.J.L. at 505, 117 A. 713.
For example, in Zimmerman v. State, 750 S.W. 2d 194, 197 (Tex.Crim.App.1988), incriminating letters written by defendant husband were found by his mother-in-law in her daughter's dresser drawer, were surreptitiously read, and were obtained without the recipient's knowledge or consent. The Texas court declined to follow an earlier Texas rule that the privilege accorded such a document could not be defeated by a change of hands, whatever the circumstances. Id. at 200. Rather, it held that where the change of hands is inadvertent and without the consent or connivance of the addressee spouse, the third party may testify to the communication. Ibid. See State v. Myers, 230 Kan. 697, 640 P. 2d 1245, 1248-49 (1982).
Courts that have denied loss of the privilege, no matter what the circumstances, have viewed the privilege as attached to the document. Miller, supra, Applicability of Marital Privileges, 32 A.L.R. 4th at 1180-84 (citing e.g., McKie v. State, 165 Ga. 210, 140 S.E. 625 (1927) (letters written by defendant wife to her husband and retrieved from his safety deposit box after his
death by his administrator held absolutely privileged)). That is not the rule in New Jersey. Young, 97 N.J.L. at 505, 117 A. 713. Moreover it is a view that is not consistent with our traditional approach to privileges, including the spousal/marital communications privilege. Briley, 53 N.J. at 509, 251 A.2d 442 ("[C]onsistent with the quest for truth and with present-day standards of achieving Justice" the "anachronistic" restraint of the spousal privilege should not apply to preclude the wife from testifying against defendant husband in criminal trial involving not only an assault against her, but crimes against third parties as well.). But see State v. J.G., supra.
We, thus, conclude that under the circumstances here, the spousal privilege does not apply to defendant's letter.
Referred to as the priest-penitent privilege, Evid.R. 29, N.J.S.A. 2A:84A-23, provides:
Subject to Rule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications ...