The New Jersey Supreme Court has agreed to hear the case of State v. Terry which will examine the extent of the marital privilege between spouses in criminal cases. Husband and wife are accused of engaging in drug trafficking. The State sought to use text messages obtained via wiretap allegedly between Husband and Wife arranging for Wife to pick up drug proceeds. The Defense asserted the marital privilege. The Superior Court found that the common law execption of crime-fraud execption applied and ruled to alow the evidence. The Appellate Division reversed holding that New Jersey Judges lack the power to recognize the common law exception as a matter of law. While the Legislature can change the rules of evidence and the Supreme Court can also with certain restrictions, courts are bound by the Evidence Act of 1960 and cannot carve execptions in this State. It is likely the Supreme Court will up-hold the Appellate Division but recommend the Legislature take action or engage in it’s own rule-making. Stay tuned.