In this case, the State’s investigation included a communication data warrant allowing it to capture text messages between the defendant, Ms. Bailey, and her husband, which the trial court found admissible at trial. Prior to the jury trial, in 2014, the New Jersey Supreme Court had recommended a crime-fraud exception to the marital communication privilege be considered under the Evidence Act; the Court declined to adopt the exception via case law at that time, finding it so significant that it needed to be referred to the Legislature. Ms. Bailey sent the communications at issue to her husband later that same year. The exception to the privilege was formally adopted afterward, in 2015. The Court is now considering whether the retroactive application of the newly enacted crime-fraud exception to the marital communications privilege violates the ex post facto clauses of the federal and state constitutions. ACLU-NJ argues that the crime-fraud exception is a significant change that implicates the ex post facto clauses, particularly because it is an evidentiary rule that retroactively permits a defendant’s statements to be used against them without notice or warning, and the statements at issue were protected by a long-standing and legislated privilege at the time that they were made.
Ms. Bailey was a survivor of intimate partner abuse, at the hands of her husband. The ACLU-NJ is also asking the Court to ask the Rules Committee to propose an instruction for juries on how to interpret communications between a defendant and their abusive spouse when admitting evidence pursuant to the crime-fraud exception to the marital communications privilege.