Jersey City, New Jersey – In criminal court proceedings, the spousal privilege attempts to protect the sanctity and serenity of marriage by preventing one spouse from testifying against the other. Many exceptions have been carved out of the privilege creating circumstances where a spouse can be compelled to testify against his or her partner. The most common exception is when one spouse is the accused and the other spouse is the victim. Another common exception is where one spouse is the accused and a child of the other spouse is the victim.

In State of New Jersey v. Brian Horne, the Superior Court of New Jersey, Appellate Division, clarified who qualifies as a child allowing use of the exception to the spousal privilege. Mr. Horne was charged with aggravated assault upon his 27-year-old stepson, Matthew Farrell. The State filed a motion to compel Irene Kropp, Mr. Horne’s wife and Mr. Farrell’s mother, to testify against Mr. Horne. The trial court denied the motion. The appellate division affirmed finding Mr. Farrell was not a child for the purposes of the exception to the spousal privilege. Specifically, the court analyzed the plain wording of the spousal privilege statute and concluded only unemancipated children trigger the exception. The court relied on the wording in the statute allowing a partner “who stands in the place of a parent” to conclude there is no parental obligation for an emancipated child. A child is presumed to be unemancipated until the age of 18, but presumed to be emancipated after that. The court did not conduct further analysis, but it is apparent no argument or facts were made to rebut the presumption that a 27-year-old is emancipated, and therefore no exception to the spousal privilege applied.

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