State v. Bailey, 251 N.J. 101 (2022)

Janie Byalik argued before the New Jersey Supreme Court on behalf of amicus curiae ACDL-NJ that text message communications between a defendant and her spouse were subject to the marital privilege N.J.R.E. 509(2)(e) because the messages were exchanged before the adoption of the crime-fraud exception, which should not apply retroactively. Our brief argued that the marital communications privilege is a substantive right rooted in privacy and differs from changes to rules of evidence and changes to procedural rules, which are generally applied retroactively. Our brief also argued that the communications did not fall within the crime-fraud exception because the statements were not in furtherance of the criminal activity. The Court agreed that the crime-fraud exception to the marital communications privilege cannot be applied retroactively. Although the Court affirmed the individual defendant’s conviction based on the other evidence of defendant’s guilt, the Court adopted the argument that we made on behalf of ACDL-NJ. CJ Griffin co-authored the amicus brief.

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