On appeal from the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Justice Long
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
LONG, J., writing for a unanimous Court.
The Court considers whether the privilege that bars the spouse of an accused from testifying in the criminal action can be pierced by application of the three-part test set forth in In re Kozlov, 79 N.J. 232 (1979).
In 2006, Joanne was working in the medical office of defendant Dr. James Mauti. Joanne's sister, Jeannette, worked as Mauti's office manager and was his live-in girlfriend. Around Thanksgiving 2006, Mauti treated Joanne for back pain, cracking her back and neck on one occasion, and treating her with a combination of a muscle relaxant and a painkiller on another occasion. On November 25, 2006, Joanne, Jeanette and Mauti were at the office working. Around 11:30 a.m., Joanne complained of back pain and Mauti offered to treat her again. In an examination room, Mauti gave Joanne the same muscle relaxant and pain medication in pill form that he had previously given her, along with a small liquid dose of what he described as a muscle relaxant. Joanne almost immediately began to feel drugged. She recalled Jeanette coming in and out of the room before Mauti administered some injections. She also recalled that Mauti asked her to change into a pair of his boxer shorts in case he needed to crack her back. After Mauti gave her a second cup of liquid, she became incapacitated. However, she remembered Mauti heating towels to apply to her back, loosening and pulling down her boxer shorts, and sexually assaulting her. She also remembered a sound that reminded her of a digital camera or cellular phone taking a picture.
Joanne's earliest memory after the alleged assault was standing in the kitchen of Mauti's residence, which was in the same building as his office, at approximately 7:30 p.m. Joanne was still visibly affected by the medication when Jeannette saw her in the kitchen, so Mauti drove Joanne home in her car while Jeannette followed behind them. Joanne fell asleep upon arriving home and was awakened by a call from a girlfriend to go to breakfast. As her memory of the incident began coming back, she told her girlfriend what she believed had happened. When she returned home, she spoke to her live-in boyfriend about the incident. She and her boyfriend decided she should contact the county rape crisis center, and the matter was eventually forwarded to the police department.
The next day, following a sexual-assault examination at a hospital, Joanne told her father, Mariano, and other family members that Mauti had sexually assaulted her. Mariano met with Jeannette and Jeffrey, the brother, and told them about Joanne's claims. Jeannette decided to move out of Mauti's house, but first she searched Mauti's office for evidence that would corroborate Joanne's allegations. She found no such evidence on the office cameras or Mauti's Palm Pilot. Without Mauti's knowledge, she took the Palm Pilot to Disk Doctors, a company that specializes in data recovery, but the company was unable to recover any corroborating data. Jeannette also took the boxer shorts and a towel that she and Mauti had used during an intimate encounter because she thought they might be connected with the incident. She gave the Palm Pilot, shorts, and towel to her father for safekeeping. About a week later, after being unable to substantiate her sister's claims, she moved back in with Mauti.
The State subpoenaed Jeannette to appear before a grand jury. She testified in December 2006 and in April 2007. During her second appearance, Jeannette testified about Disk Doctors and her failure to find incriminating photos on the office cameras. Although she did not testify about the boxer shorts or towel, police learned from Joanne that Jeannette had given those items to her father. Jeannette later testified that she took the shorts because Joanne had worn them while Mauti treated her, and she admitted that she washed them before she gave them to her father.
On July 28, 2007, Jeannette and Mauti announced their engagement and scheduled their wedding for October 28, 2007. In August, Mauti was charged with sexual assault based, in part, on lab tests that revealed the presence of a date-rape drug in Joanne's urine. The State's application to enjoin the wedding until the charges were resolved was denied on the ground that there was no proof that it was a sham marriage. The day after Jeannette and Mauti were married, Jeannette's attorney informed the State that she would be invoking the spousal privilege. Following Mauti's indictment in November 2007, the State moved to compel Jeannette's testimony at trial as a material witness. The trial court held that the privilege could be pierced under Kozlov because the evidence sought from Jeannette was legitimately needed, relevant and material, and could not be secured from a less-intrusive source.
The Appellate Division reversed. 416 N.J. Super. 178 (2010). The panel explained that Kozlov dealt with the conflict between the attorney-client privilege and a defendant's constitutional right to a fair trial, whereas this case presents no such conflict. The court also found that Jeannette's conduct was not an implicit waiver of the privilege, statutory exceptions to the privilege were not present, her testimony was not indispensable, and the information could be obtained from a less-intrusive source. The Supreme Court granted leave to appeal. 205 N.J. 11 (2010).
HELD: The wife of defendant James J. Mauti was entitled to exercise the spousal privilege of refusing to testify in his criminal trial because there was no conflict between her exercise of the privilege and a constitutional right, and she did not waive her right to exercise the privilege.
1. Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt. The exercise of a valid testimonial privilege constitutes an adequate excuse. Privileges protect interests that have been determined to be of sufficient importance to justify some sacrifice of sources of facts needed in the administration of justice. Pursuant to N.J.R.E. 530, waiver of a privilege occurs if the holder enters into a contract not to claim the privilege or discloses part of the privileged matter or consents to disclosure. Courts also recognize that a privilege may be waived implicitly by placing a confidential communication in issue in the litigation. (pp. 13-16
2. The rules of evidence recognize two marital privileges that protect the tranquility and sanctity of marriage. The marital-communications privilege, N.J.R.E. 509, protects confidential communications made during a marriage. It is not at issue in this case. The spousal privilege, N.J.R.E. 501(2), provides that the spouse or civil union partner of the accused in a criminal action shall not testify in such action, except to provide the fact of the marriage or civil union, "unless (a) such spouse or partner consents, or (b) the accused is charged with an offense against the spouse or partner, a child of the accused or of the spouse or partner, or a child to whom the accused or the spouse or partner stands in the place of a parent, or (c) such spouse or partner is the complainant." Unless one of the exceptions applies, all testimony is barred except that bearing on the fact of the marriage. (pp. 16-20)
3. In Kozlov, the Court required that, aside from the express exceptions contained in the rules, a party seeking to pierce a privilege must advance a legitimate need for the evidence, show that it is relevant and material to the issue before the court, and establish that it cannot be secured from a less-intrusive source. Only in the most narrow of circumstances can the "need" prong be satisfied: (1) where a constitutional right is at stake, such as a defendant's right to a fair trial, or (2) where a party has waived the privilege either expressly, as provided by statute, or implicitly by placing an otherwise protected matter in issue. (pp. 20-25)
4. As the State concedes, this case does not involve a conflict between a defendant's constitutional right to a fair trial and a privilege. It also does not involve a typical claim of waiver. Pursuant to N.J.R.E. 530, waiver is only possible when it is exercised by a person while he or she is the holder of a privilege. Jeannette was not the holder of a privilege at the time of her actions at Mauti's office or during her testimony before the grand juries because she was not married to Mauti at that time. She had no privilege, therefore there was nothing for her to waive. Finally, the Court agrees with the Appellate Division that the "no less intrusive source" prong cannot be satisfied here. Other witnesses can testify about the events, including the father with regard to Jeannette's handling of the shorts, towel and Palm Pilot. Furthermore, Disk Doctor employees and the company's records can attest to the condition of the device and whether pictures were deleted. (pp. 25-30)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and JUDGE WEFING (temporarily assigned) join in JUSTICE LONG's opinion.
JUSTICE LONG delivered the opinion of the Court.
The issue in this appeal is whether, at the State's behest, the spousal privilege embodied in N.J.R.E. 501(2) can be pierced by application of the factors we set forth in In re Kozlov, 79 N.J. 232 (1979).*fn1 The trial judge, guided by Kozlov, ordered a wife to testify as a witness in a sexual assault case against her husband. On the wife's appeal, the Appellate Division reversed, declaring the Kozlov test applicable only where the privilege is pitted against a constitutional value, such as a criminal defendant's interest in mounting a defense, or where a party has waived the privilege by placing otherwise confidential matters in issue. The panel went on to rule that even if Kozlov applied, the State could not satisfy its three-part test because the evidence at issue can be obtained from less-intrusive sources. We agree and affirm.
Dr. James Mauti (defendant) is a physician who practices sports medicine. In 2006, Joanne L.*fn2 (Joanne) worked in defendant's medical office where she performed various accounting and bookkeeping duties. The office was a hybrid --"part of it [being] a house, and part of it [being] a medical office." Joanne's older sister, Jeannette, was romantically involved with defendant as his live-in girlfriend and also worked as his office manager. On December 1, 2006, Joanne gave a recorded statement to detectives in which she reported that defendant had sexually assaulted her on November 25, 2006, at the office. The following account of events is taken from statements to the police and from Jeannette's testimony before two grand juries.
During the week leading up to Thanksgiving 2006, Joanne had been experiencing rather severe back pain. Early in the week, defendant cracked Joanne's back and neck, and massaged a knot in her back, which temporarily relieved her pain. On Thanksgiving, defendant treated her with a combination of a muscle relaxant and a painkiller.
The following Saturday, November 25, 2006, Joanne arranged to work extra hours with defendant, even though the medical office was closed. Joanne arrived at the office at approximately 10:00 a.m.; Jeannette and defendant were both there working as well. Around 11:30 a.m., Joanne started to feel pain in her back and told defendant she wanted to go home to lie down. Defendant offered to massage and treat her back with the same treatment he had used on Thanksgiving, and Joanne agreed and waited for defendant in the examination room.
Defendant entered the room, told Joanne to lie down, and gave her the same medication (muscle relaxant and pain medication in pill form) he had given her on Thanksgiving, in addition to a small liquid dosage of what the defendant described as a muscle relaxant. Joanne almost immediately began to feel as though she had been drugged; although she was aware of her surroundings, she felt sleepy and experienced "a feeling of being drunk." Immediately after drinking the liquid medication, Joanne recalled Jeannette coming "in and out" of the examination room and talking to her, which she believed was intended to relieve her anxiety about getting injections. A few minutes later, defendant also injected Joanne's lower back with an unknown medication.
Joanne had difficulty remembering what happened after the injection but recalled defendant asking her to change into a pair of his boxer shorts. Joanne asked why that was necessary and defendant responded, "[W]ell just in case I have to crack you." According to Joanne, about ten or fifteen minutes later, defendant gave her another cup of liquid to drink, which defendant indicated was the second dose in a series of three doses he would administer. Joanne did not recall taking a third dose.
Joanne became incapacitated after the second dose of liquid and could not move or speak. She remembered hearing defendant use a microwave in the exam room to heat up towels that he was placing on her back, and loosening her boxer shorts and pulling them down. Joanne claimed that during that time, defendant sexually assaulted her by placing his fingers in her anus and vagina, placing his penis in her anus, and using her hand to masturbate himself. She also remembered hearing a clicking or snapping sound that reminded her of a digital camera or cellular phone taking a picture.
During the time of the alleged incident, defendant was also treating Jeffrey, the brother of Joanne and Jeannette, for a strained back. Jeffrey arrived at the office at approximately 12:30 p.m. and his treatment took place in a separate examination room. Jeffrey was also given two pills that defendant identified as a muscle relaxant and a painkiller, but he was not given any liquid medication and never received any injections. Jeffrey did not see his sister, Joanne, during the treatment and left around 4:20 p.m.
Joanne did not remember waking up, getting dressed, or leaving the examination room. In fact, her earliest memory after the alleged assault was standing in the kitchen of the residence section of defendant's building at approximately 7:30 p.m. Joanne was still visibly affected by the medication when Jeannette observed her in the kitchen. According to Jeannette, Joanne appeared very "drowsy." Consequently, defendant drove Joanne home in her car while Jeannette followed behind them.
Joanne fell asleep almost immediately upon arriving home and the following morning she was awakened by a call from one of her girlfriends to go to breakfast. As her memory of the incident began coming back, Joanne told her girlfriend what she believed had happened. However, she resolved to forget the incident and "just . . . continue on." When she returned home that day, and as more memories began to crystallize, she spoke to her live-in boyfriend about the incident. She and her boyfriend decided she should contact the Union County Rape Crisis Center and the matter was eventually forwarded to the Springfield Police Department.
The next day, November 27, 2006, Joanne submitted to a sexual-assault examination at Rahway Hospital and, following that examination, told her father, Mariano, and other members of her family that defendant had sexually assaulted her. After his conversation with Joanne, Mariano called Jeannette and Jeffrey and told them to come to his house where he informed them about the allegations of sexual assault. As a result of that "family meeting," and because she was "worried" about defendant's reaction to those allegations, Jeannette decided it would be best if she moved out of defendant's house until she could sort everything out in her own mind.
Before moving out, Jeannette decided to investigate the matter further. On the same night of the "family meeting," she searched defendant's office for evidence that would corroborate Joanne's version of events (specifically any pictures on digital cameras). Jeannette reviewed the office camera (used to document patient information), but found nothing. Later that evening, she also asked defendant to show her pictures on his Palm Pilot -- before he was aware of the accusations -- and no pictures were found. Without defendant's knowledge, she took the Palm Pilot and researched means to recover data that may have been deleted from the device. Ultimately, she took the Palm Pilot to Disk Doctors, a company that specializes in data recovery, but the company was unable to recover any data that corroborated Joanne's version of the events.
Jeannette also took the boxer shorts and a towel that she and defendant had used during an intimate encounter because she thought they "might" be connected with the incident. Jeannette gave the Palm Pilot, the shorts, and the towel to her father to hold for safekeeping. ...