On appeal from the Superior Court, Appellate Division, whose opinion is reported at 263 N.J. Super. 98 (1993).
Garibaldi, Clifford, Handler, Pollock, O'Hern, Wilentz, Stein
The opinion of the court was delivered by GARIBALDI, J.
This case involves the reach of two separate evidentiary privileges: the marital-communications privilege and the priest-penitent privilege. First, we address whether the marital-communications privilege, Evidence Rule 28,*fn1 N.J.S.A. 2A:84A-22, prevents the admission of an inculpatory letter that defendant sent to his wife and that the wife's father then took without permission. Second, we consider who holds the priest-penitent privilege, Evidence Rule 29, N.J.S.A. 2A:84A-23. If the clergyperson or the penitent, alone, holds the privilege, then that person can waive it unilaterally. If, however, both the clergyperson and the penitent hold the privilege, both must consent to its waiver.
Defendant, Craig Szemple, was charged in Morris County with first-degree murder, unlawful possession of a thirty-two caliber handgun, and murder while armed with that handgun. He was also indicted for murder in Warren and Hudson Counties. The Morris County indictment alleged that defendant shot a sixteen-year-old boy, Nicholas Miroff, to death in 1975. After the State had rested its case in the jury trial on that charge, it sought to reopen its case to present two admissions of guilt that defendant had allegedly made. The first admission was contained in a letter written to his wife that her father had discovered. The second admission was a confession defendant had made while in jail to a Minister of Visitation.
After an Evidence Rule 8 hearing, the trial court determined that neither the marital-communications privilege nor the priest-penitent privilege protected the admissions. The trial court granted the State's motion to reopen its case to present the two admissions. Rejecting defendant's argument that the new evidence caused unfair surprise, the trial court denied defendant's motion for a mistrial.
On interlocutory appeal, the Appellate Division 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 the evidentiary privileges did not apply. The Appellate Division, with one Judge Dissenting, upheld the trial court's evidentiary rulings. 263 N.J. Super. 98 (1993). We granted leave to appeal pursuant to Rule 2:2-1(a)(2) and now affirm.
The facts related to defendant's claim of the marital-communication privilege are as follows. Early in 1991, after defendant was arrested, Theresa Boyle, defendant's wife, asked her father, Michael Boyle, to help her move. In the process of sorting through numerous boxes that Theresa had packed, Michael Boyle discovered some folded sheets of white paper that he identified as a letter from defendant to Theresa. He "said to [himself,] I don't know nothing about this guy and this looks like its going to be something for me to look at," so he kept the letter. At that time Mr. Boyle was worried about his daughter and did not know anything about defendant, other than that he was in jail on a murder charge. Mr. Boyle concealed the letter from his daughter by sticking it under his shirt. He carried it out to his pickup truck and placed it there in a plastic bag.
Mr. Boyle took the letter back with him to his home in North Carolina and "forgot about it." Several weeks later, he discovered the letter and finally read it. After deciphering defendant's handwriting, Mr. Boyle came to the Conclusion that the letter was "dynamite," specifically page eight, which contained the following description of a murder that defendant had committed:
My first hit was an act of treachery, the ultimate deceit. 4 Bullets in the back 1 in the neck and a broken promise made at the parting of the oncoming river. I never did tell his mother what happened to him. The second I pulled that trigger, I became larger than death to all of my associates.
Mr. Boyle returned to New Jersey several months later, and gave a copy of the letter to his former wife, Theresa Boyle's mother. Mr. Boyle's ex-wife communicated with an attorney to inquire whether the letter would be helpful to the prosecutor, but was informed that the prosecutor did not need the letter because the State already had enough evidence against defendant. Based on that advice, neither Mr. Boyle nor his ex-wife disclosed the existence of the letter to the authorities.
Almost a year later, Mr. Boyle asked his daughter about the status of defendant's cases. When his daughter told him the charges were being dropped, Mr. Boyle drove to New Jersey from North Carolina and gave the letter to the Morris County prosecutor's office. Mr. Boyle had never told his daughter that he had the letter. When Theresa Boyle discovered he had the letter and had given it to the prosecutor, she became very angry. He testified that his "daughter won't have nothing to do with [Michael Boyle] now."
The prosecutor presented evidence that tied the statement in the letter to the murder. The trial court ruled that the letter was admissible. Although the letter would have been privileged under Evidence Rule 28 if Theresa had retained possession, the court held that the privilege no longer applied once Mr. Boyle, without Theresa's aid, consent, or connivance, obtained possession of the letter.
The facts regarding the priest-penitent privilege are as follows. While in prison, defendant confessed his guilt to Paul Bischoff, a Minister of Visitation. Mr. Bischoff, a retired Newark firefighter, served with Trinity Baptist Church in Montville. He became a deacon in the church in 1974. According to Mr. Bischoff, the church elders, feeling that he had the gift to minister to those of God's people who are in need of the gospel, ordained him as a Minister of Visitation. The elders signed a "certificate of ordination" recognizing Mr. Bischoff's position. As a Minister of Visitation, Mr. Bischoff visited members of the congregation and persons in hospitals, psychiatric wards, penitentiaries, and nursing homes, to comfort them and discuss their religious needs and concerns.
In his capacity as a visiting minister Bischoff met with defendant in jail about nineteen times between April 1991 and January 1992. In October 1991, defendant admitted to Bischoff that he had killed "not one but three." Bischoff, who had known defendant's family for at least twelve years, reported defendant's admission to defendant's sister and brother-in-law. One of defendant's family members related the admission to the prosecutor's office.
We begin our analysis by reviewing well-established principles regarding evidentiary privileges. As a general proposition, privileges are to be narrowly construed. United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108, 41 L. Ed. 2d 1039, 1065 (1974); State v. Schreiber, 122 N.J. 579, 582-83, 585 A.2d 945 (1991). That rule of construction stems from the fact that privileges "contravene the fundamental principle that '"the public . . . has a right to every man's evidence."'" Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 912, 63 L. Ed. 2d 186, 195 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 730, 94 L. Ed. 884, 891 (1950)). They "are obstacles in the path of the normal trial objective of a search for ultimate truth." State v. Briley, 53 N.J. 498, 506, 251 A.2d 442 (1969); see also State v. Dyal, 97 N.J. 229, 237, 478 A.2d 390 (1984) (holding that because testimonial privilege "precludes admission of relevant evidence, it is restrictively construed"); State v. Bodtmann, 248 N.J. Super. 100, 101, 590 A.2d 259 (Law Div. 1990) (noting that privilege that "obstructs the search for truth . . . must be construed restrictively").
Because privileges may often "undermine the search for truth in the administration of Justice," Dyal, supra, 97 N.J. at 237, they are accepted only to the extent that they outweigh the public interest in the search for truth. Trammel, supra, 445 U.S. at 50, 100 S. Ct. at 912, 63 L. Ed. 2d at 195. "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." Briley, supra, 53 N.J. at 506. Thus, privileges should always "be construed and applied in sensible accommodation to the aim of a just result." Ibid.
The marital-communications privilege, Evidence Rule 28, N.J.S.A. 2A:84A-22, prevents disclosure by a spouse of confidential communications made during marriage except under specified circumstances. At the time of defendant's trial, Evidence Rule 28 provided in pertinent part:
No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure.
The Legislature amended the marital-communications privilege by Act of November 17, 1992, L. 1992, c. 142. Evid. R. 28, N.J.S.A. 2A:84A-22. The amendment substantially relaxes the privilege to permit disclosure of marital communication "in a criminal action or proceeding in which either spouse consents to the disclosure. " (emphasis added). The amendment applies "to all criminal actions regardless of the date on which the offense was committed or the action initiated." Committee Statement to Senate, No. 1055, L. 1992, c. 142. Because defendant's wife did not consent to the letter's disclosure, the recent amendment is not directly applicable. Nonetheless that amendment clearly demonstrates the Legislature's intent to limit significantly the preclusive effect of the marital-communications privilege.
The marital-communications privilege has long been recognized as a protector of marital confidences. It stems from the strong public policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the sanctity and tranquility of marriage. See Wolfle v. United States, 291 U.S. 7, 14, 54 S. Ct. 279, 280, 78 L. Ed. 617, 620 (1934); Blau v. United States, 340 U.S. 332, 333, 71 S. Ct. 301, 302, 95 L. Ed. 306, 308 (1951); Rozycki v. Peley, 199 N.J. Super. 571, 579, 489 A.2d 1272 (Law Div. 1984); 8 Wigmore on Evidence § 2332, at 642 (McNaughton rev. 1961); cf. State v. Young, 97 N.J.L. 501, 505, 117 A. 713 (1922) (discussing requirement that communication loses privileged nature if overheard by third party).
Like other evidentiary privileges, however, "since the [marital communications] privilege has as its only effect the suppress ion of relevant evidence, its scope should be confined as narrowly as is consistent with the reasonable protection of marital communications." 1 McCormick on Evidence § 82, at 303 (J.S. Strong, 4th ed. 1992). As a result, the marital-communications privilege does not apply to a written communication between spouses that comes into the possession of a third party without the consent of the recipient spouse. See Wigmore on Evidence, supra, § 2339, at 668 (stating that general rule is that if written communications "were obtained surreptiously or otherwise without the addressee's consent, the privilege should cease").
One well-known commentator on the law of evidence expresses the rule as follows:
The weight of decision seems to support the view that the privilege does not protect against the testimony of third persons who have overheard (either accidentally or by eavesdropping) an oral communication between husband and wife, or who have secured possession or learned the contents of a letter from one spouse to another by interception, or through loss or misdelivery by the custodian. There is one important qualification which many if not most of the cases announce, namely that the privilege will not be lost if the eavesdropping, or the delivery or disclosure of the letter be due to the betrayal or connivance of the spouse to whom the message is directed.
[1 McCormick on Evidence, supra, § 82, at 302-03 (footnotes omitted).]
See also 81 Am. Jur.2d Witnesses § 330 (1992) (stating that letters between husband and wife disclosing anything of confidential nature are privileged "at least as long as they remain in the hands of either party to the marriage"); 97 C.J.S. Witnesses § 270(b)(2) (1957) (stating that under most authorities, "confidential written communication between husband and wife * * * loses its privileged character on coming into the hands of third person"). The privilege is personal to the spouses, and does not apply to third parties. Young, supra, 97 N.J.L. at 505.
The majority of jurisdictions hold that the marital-communications privilege does not apply to a written communication obtained by a third person without the other spouse's aid and consent. This view comports with the goal of narrowly construing privileges that preclude relevant evidence and with New Jersey precedent.
No New Jersey court has held specifically that the marital-communications privilege is inapplicable to a written communication obtained by a third person. Nonetheless, New Jersey law has long held that the marital-communications privilege does not prohibit disclosure by third parties who overhear spousal conversations. In State v. Laudisi, 86 N.J.L. 230, 90 A. 1098 (1914), the Court of Errors and Appeals refused to apply the privilege to an accusation by one spouse against another in the presence of a neighbor. There, defendant objected to the admission of testimony by the neighbor concerning his wife's accusation and his reply on the grounds that it fell within the marital-communications privilege. The Court disagreed, holding that the presence of the third person vitiated the confidential nature of the communication. Id. at 231.
Similarly, in Young, supra, 97 N.J.L. 501, the Court of Errors and Appeals refused to apply the privilege to a communication that the defendant had transmitted to a third person with the instruction that it be communicated to the defendant's wife. The court reasoned that the communication to the third party destroyed the confidentiality of the communication:
The privilege is personal to husband and wife. A third person who happened to overhear a personal conversation between husband and wife may be examined as to such conversation. A letter, also written confidentially by a husband to a wife, is admissible against the husband when brought to court by a third party.
[Id. at 505 (internal quotations and citations omitted) (emphasis added).]
In State v. Brown, 113 N.J. Super. 348, 273 A.2d 783 (1971), the Appellate Division refused to extend the privilege to cover a conversation between a father and his son which the mother overheard. In addition to failing to qualify for the privilege because it was not an inter-spousal communication, the conversation was deemed to be not confidential due to the presence of the third party. Id. at 353.
Finally, in State v. Sidoti, 134 N.J. Super. 426, 341 A.2d 670 (1975), the Appellate Division held the marital-communications privilege inapplicable to a communication between a husband and a wife because a third person had overheard it.
Those cases establish that the involvement of a third party vitiates the requirement of confidentiality. The privilege does not attach to the communication itself, but is personal to the spouses. See Young, supra, 97 N.J.L. at 505. We see no important distinction in that regard between an oral and a written communication. The confidential nature of a letter is destroyed just as readily when a third party obtains it as when someone overhears an oral communication.
Cases from other jurisdictions support that position. In Zimmerman v. State, 750 S.W.2d 194 (Tex. Crim. App. 1988), a capital-murder case, the defendant, while in custody, sent to his wife, Sherry Zimmerman, a letter that contained a confession to a murder. 750 S.W.2d at 195. Mrs. Zimmerman apparently kept that and other letters sent by the defendant in her dresser drawer. The defendant's mother-in-law, Viola Cobb, while admittedly without permission looking for evidence of defendant's guilt, took four letters out of her daughter's dresser drawer, read them, and then mailed them to her other daughter, Sandra Abner, who resided in Houston, Texas. Id. at 197. Ms. Cobb never discussed the contents of the purloined letters with Mrs. Zimmerman and fully intended that the letters would come into the possession of the proper authorities when she mailed them to Ms. Abner. Ibid.
In holding that the letter containing the confession was not a privileged marital communication, Zimmerman recognized the analogy between oral marital communications overheard by a third party and written communications obtained by third persons. Id. at 199-200. The Zimmerman court adopted the rule that a Kansas Supreme Court opinion had annunciated that "'where a written confidential communication between a husband and wife falls into the hands of a third party inadvertently and without the consent or connivance of the addressee-spouse, the third party should be permitted to testify as to the communication.'" Id. at 200 (quoting State v. Myers, 230 Kan. 697, 640 P.2d 1245, 1248 (1982). The court in Myers also observed that "such a rule, as applied to written communications, is entirely consistent with the rule, almost universally accepted, that oral statements of one spouse to another are admissible when overheard by a third person even without the knowledge or consent of the spouses." 640 P.2d at 1249.
The Myers Court held that confidential letters that the defendant had written to his wife, found under the mattress of a bed three months after the defendant's wife had vacated the premises, were not privileged under that rule. Id. at 1248. The court concluded that "the public interest would be best served by the requirement that all facts relevant to a litigated issue should be available to the court to the end that truth may be ascertained." Ibid.; see also Commonwealth v. Skibicki, 402 Pa. Super. 160, 586 A.2d 446, 449-50 (Pa. Super. Ct.) (holding that letter from defendant to wife found by used car salesman in glove compartment of car recently traded by defendant's mother-in-law was not privileged), appeal denied, 598 A.2d 993 (Pa. 1991).
Defendant asserts that the privilege is lost only when the written communication was discovered "inadvertently" (meaning heedlessly or unintentionally). Judge Stein accepted that view in his Dissent in the Appellate Division. In Judge Stein's opinion, the "inadvertency" requirement applies to the third-party discoverer of the confidential communication. See 263 N.J. Super. at 122. Under his approach, the privilege would apply if the third party intended to discover the confidential communication, regardless of whether one of the spouses intended that ...