Amending the Evidence Rules

State v. Savoy, 218 N.J. 224 (2014).  Under Article VI, section 2, paragraph 3 of the New Jersey Constitution, the Supreme Court has plenary power to “make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.”  That includes the power to make and amend Court Rules.  The Court has the ability to deal with Court Rules either through rulemaking or in the context of a particular litigation, as discussed, for example, in Busik v. Levine, 63 N.J. 351 (1973).

This unanimous decision of the Court, however, involved the New Jersey Rules of Evidence.  The adoption of the Rules of Evidence is governed by the Evidence Act of 1960, N.J.S.A. 2A:84A-33 to -44.  As the Court explained in State v. Byrd, 198 N.J. 319 (2009), and State v. D.R., 109 N.J. 348 (1988), that statute was essentially a “pragmatic compromise” of the competing claims of the respective branches of government to have power over the Rules of Evidence, resolving such questions as whether rules of evidence fall within “practice and procedure” so as to give the Supreme Court exclusive authority over those Rules.  As a result, the adoption and amendment process of the Rules of Evidence involve all three branches of government.

This case centered on Evidence Rule 509, which contains a marital communications privilege.  The Evidence Act also included such a privilege.  In this unanimous opinion by Chief Justice Rabner, the Court concluded that telephone conversations and text messages exchanged between a husband and wife do not lose their privileged status when they are intercepted by the State pursuant to a court-authorized wiretap.  But the Court went on to opine that a crime-fraud exception to the marital communications privilege should be adopted, as all eleven United States Courts of Appeals that have considered this question have done.  The issue then became how such an amendment could be effected.

Canvassing prior cases, Chief Justice Rabner observed that when “relatively minor changes” to the Rules of Evidence have been at issue, the Court has acted on its own to implement those changes.  In contrast, when a “fundamental change with serious and far-reaching consequences is at stake,” the Court should follow the Evidence Act “as a matter of comity” to the other branches of government.

As Chief Justice Rabner described, the Evidence Act offers two paths for new or amended evidence rules.  The first involves a Judicial Conference, consisting of “judges, lawyers, and academics,” to develop new evidence rules that, upon approval by the Supreme Court, would be submitted to the Governor and the Legislature.  The new rules would become effective unless rejected by a joint resolution of the State Assembly and Senate that is then signed by the Governor.  The second path permits the Court itself, without involvement by a Judicial Conference, to submit one or more proposed rules to the Assembly and Senate for their approval by a joint resolution, and then to the Governor for signature.

The Court opted to follow the second path here.  Appendix A to Chief Justice Rabner’s opinion contains a specific proposal for a crime-fraud exception to Evidence Rule 509.  Now the ball is in the Legislature’s court on this issue.