A request for a civil reservation in municipal court must be made in open court. Maida v. Kuskin 221 N.J. 112 (N.J. 2015)

A request for a civil reservation in municipal court must be made in open court. Maida v. Kuskin 221 N.J. 112 (N.J. 2015)

A request for a civil reservation in municipal court must be made in open court and contemporaneously with the court’s acceptance of defendant’s guilty plea. If the prosecutor or the victim demonstrates good cause, or the charge to which a defendant pleads guilty does not arise out of the same occurrence that is the subject of the civil proceeding, a civil reservation order may not be entered.  Bruce Maida v. Michael Kuskin (A-50-13) (073427)

 Decided March 19, 2015

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the circumstances under which a defendant can request a civil reservation. A civil reservation is a municipal court practice that permits a municipal court judge to order that a guilty plea not be used as evidence in any related civil proceeding. 

The Maidas subsequently filed a complaint seeking damages. They claimed that plaintiff suffered serious injuries requiring multiple surgical procedures and that his wife suffered severe and permanent emotional distress from witnessing the accident. Defendant filed an answer in which he denied that he was negligent and, in response to an interrogatory, asserted that “there was no accident.” The Maidas filed a motion to strike the civil reservation that the municipal court had entered. The trial court initially denied their motion, but then reconsidered and granted the motion. The trial court opined that a civil reservation, as authorized by Rule 7:6-2(a)(1) of the Rules of Court Governing the Courts of the State of New Jersey (Rules), must be requested in open court at the time the guilty plea is entered. Finding that had not occurred in this case, the trial court permitted use of the guilty plea at trial. 

In an unpublished decision, a panel of the Appellate Division reversed. The panel determined that Rule 7:6-2(a)(1) does not require that the request for a civil reservation be made in open court at the time the guilty plea is accepted. Surmising that the civil reservation was a material aspect of the guilty plea, the panel suggested that the trial judge should have permitted defendant to withdraw his plea. In addition, the panel held that a civil reservation should be granted as a matter of course any time after entry of the plea, unless there is an objection. The panel further observed that there were other reasons to exclude the guilty plea here, including: 1) the absence of a factual basis provided by defendant, 2) the prejudicial impact of a guilty plea, and 3) the absence of any probative value of the guilty plea to a central issue in this case, which was whether a motor vehicle accident occurred at all. This Court granted the Maidas’ petition for certification.  Maida v. Kuskin, 217 N.J. 50 (2014). 

HELD: A request for a civil reservation in municipal court must be made in open court and contemporaneously with the court’s acceptance of defendant’s guilty plea. If the prosecutor or the victim demonstrates good cause, or the charge to which a defendant pleads guilty does not arise out of the same occurrence that is the subject of the civil proceeding, a civil reservation order may not be entered.

1. Defendant pled guilty to one of the more than 2 million non-DWI traffic cases filed in the municipal courts of this State in 2010. The Rules, particularly Part 7, address all facets of municipal court practice.  Rule 7:6-2(a)(1) permits a municipal court judge to accept a guilty plea, but the judge may not do so without first addressing the defendant personally, determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea, and determining that there is a factual basis for the plea. If a civil complaint has been filed, or one is anticipated, the court may, on defendant’s request, order that the plea not be used as evidence in a civil proceeding.  R. 7:6-2(a)(1). Guilty pleas that do not follow this basic structure are subject to reversal. A municipal court order indicating that the plea not be evidential in any civil proceeding is entered as a matter of course unless the prosecutor or the victim objects. If the prosecutor or victim objects to a civil reservation or non-evidential order, the objecting party must show good cause for withholding the order.

2. State v. Haulaway, Inc., 257 N.J. Super. 506 (App. Div. 1992), provides guidance on what constitutes good cause to support entry or denial of a civil reservation. In Haulaway, defendants entered guilty pleas with knowledge that the State would object to entry of a civil reservation order. The Appellate Division determined that good cause did not exist to support the civil reservations defendants requested because they pled guilty knowing that the State might object to a no-civil-use order and without conditioning their pleas on the entry of such an order. Similarly, this Court addressed the admissibility of a guilty plea to careless driving in a subsequent civil proceeding.  Eaton v. Eaton, 119 N.J. 628 (1990). There, the driver of a car involved in a single-car accident pled guilty to careless driving without an appearance in municipal court. A passenger in the car died from injuries suffered in the crash. In the wrongful death action, the driver contended that her guilty plea to careless driving was not admissible. This Court disagreed and emphasized that a guilty plea is only evidence of negligence and certainly “not conclusive proof[] of the facts underlying the offense.” Absent a properly entered civil reservation, a person who enters a guilty plea to a traffic offense may be confronted with the factual basis for it in a civil action arising from the same occurrence that triggered the issuance of the motor vehicle charge. If a person contested the charge, a conviction following a trial is not admissible because the contesting defendant never admitted guilt. 

3. Here, defendant was charged with an offense that requires a person involved in a motor vehicle accident in which someone is injured to file a written report within ten days of the accident. The report is forwarded to the Motor Vehicle Commission, but neither the report, nor any statement contained in the report, is admissible as evidence in a subsequent proceeding for any purpose other than to establish the fact that the report was submitted. The fact of filing, filing late, or not filing at all has no bearing on the issue of negligence in a subsequent civil proceeding and is, therefore, inadmissible in any such proceeding. 

4. In sum, a guilty plea to a traffic offense that occurs in open court must be accompanied by a factual statement given by the defendant. A person who pleads guilty to a traffic offense may request an order that prevents admission of the plea in any civil proceeding arising from the same occurrence that precipitated the motor vehicle charge and that request must occur in open court. The prosecutor or a person injured in the accident may object to such an order, but must demonstrate good cause to bar entry thereof. If good cause is demonstrated, or the charge to which a defendant pleads guilty does not arise out of the same occurrence that is the subject of the civil proceeding, a civil reservation order may not be entered. Further, such an order should not be entered when the conduct encompassed by the traffic offense bears no relation to the subsequent civil proceeding. Finally, if the guilty plea is entered without a court appearance, a defendant may not pursue a civil reservation order. 

5. The municipal court proceeding in this appeal suffered from several flaws. Contrary to Rule 7:6-2(a)(1), defendant pled guilty to a motor vehicle charge without providing a factual basis. That precluded the municipal court from determining whether the plea was knowing and voluntary and whether it was factually supported. Further, the civil reservation order should not have been entered after the close of the municipal court proceedings because the request must be made in open court and contemporaneously with the plea. Moreover, here the municipal court judge entered a civil reservation order for a motor vehicle offense that would have been inadmissible in any civil proceeding based on the same occurrence because whether a person files the report of the accident required by the statute bears no relevance to whether the charged person operated a motor vehicle in a negligent manner on the day of the alleged incident, or operated a motor vehicle at all. 6. The Court disapproves of the Appellate Division’s ruling that a civil reservation need not be requested contemporaneously with the entry of the plea. The Court affirms, however, because whether a person submits a report of a motor vehicle accident timely, belatedly, or not at all bears no relevance to the issue of negligent operation of a motor vehicle. 

State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause

 State v. Witt __ NJ __ (2015)

 State v. William L. Witt (A-9-14) (074468) 

Argued April 14, 2014 -- Decided September 24, 2015 

ALBIN, J., writing for a majority of the Court. 

 The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

In this appeal, the Court addresses the constitutional standard governing an automobile search and considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009). 

Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant’s car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun. 

Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in violation of the New Jersey Constitution. Defendant’s sole argument was that the police did not have exigent circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car pass with its high beams on.  

The officer explained that a car must dim its high beams “as vehicles approach.” Thus, Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite searched defendant’s vehicle for “intoxicants,” he found a handgun in the center console. With Pena-Flores as its guide, the trial court found as follows: the officer had a right to stop defendant’s car based on an “unexpected” occurrence and had probable cause to search for an open container of alcohol, but did not have “sufficient exigent circumstances” to conduct a warrantless search. Accordingly, the court suppressed the handgun. 

       The Appellate Division granted the State’s motion for leave to appeal and affirmed the suppression of the gun “because of the utter absence of any exigency to support the warrantless vehicle search that occurred,” and “because there was no justification for this motor vehicle stop.” 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel declined to address the State’s argument that the exigent-circumstances test in Pena-Flores “should be replaced because it has proved to be unworkable and has led to unintended negative consequences,” explaining that, as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.

The panel also agreed with defendant’s argument, raised for the first time on appeal, that Officer Racite did not have a reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.

The Court granted the State’s motion for leave to appeal.

HELD: The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

1. Before addressing the parties’ arguments on the constitutional standard governing the search of defendant’s vehicle, the Court disposes of his challenge to the lawfulness of the stop. Defendant did not challenge the validity of the motor-vehicle stop before the trial court, but now claims that the filing of a motion to suppress under Rule 3:5-7(a) required the State to justify every aspect of the warrantless search, including the initial stop. The Court rejects defendant’s contention and concludes that the Appellate Division should have declined to entertain the belatedly raised issue. The Court reverses the Appellate Division on this point and holds that the lawfulness of the stop was not preserved for appellate review.   

2. Having addressed defendant’s challenge to the lawfulness of the stop, the Court turns to the constitutional standard governing the search of defendant’s vehicle. The automobile exception to the warrant requirement -- as defined by the United States Supreme Court in construing the Fourth Amendment -- authorizes a police officer to conduct a warrantless search of a motor vehicle if it is “readily mobile” and the officer has “probable cause” to believe that the vehicle contains contraband or evidence of an offense. Under federal law, probable cause alone satisfies the automobile exception to the warrant requirement. The federal automobile exception does not require a separate finding of exigency in addition to a finding of probable cause, as is the case in New Jersey. The overwhelming majority of states have adopted the federal approach to the automobile exception and do not require exigency beyond the inherent mobility of the vehicle.   

3. In State v. Alston, 88 N.J. 211 (1981), the Supreme Court of New Jersey upheld the constitutionality of the search of the defendants’ car based on the United States Supreme Court’s then-articulated automobile exception to the warrant requirement. In doing so, the Court stated that “the exigent circumstances that justify the invocation of the automobile exception are the unforseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway.” Id. at 233.

However, in State v. Cooke, 163 N.J. 657 (2000), the Court announced that, under Article I, Paragraph 7 of New Jersey’s State Constitution, the warrantless search of a vehicle could only be justified based on exigent circumstances in addition to probable cause. Pena-Flores reaffirmed the standard enunciated in Cooke, and declared that “the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.” 198 N.J. at 28. The Court further set forth a multi-factor test to guide police officers in determining whether exigent circumstances excused the securing of a warrant, and encouraged the use of telephonic and electronic warrants as a means to meet the constitutional challenges of roadway stops.

4. In the wake of Pena-Flores, this Court created the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which issued a report in January 2010. The Committee concluded that safety and police resource concerns dictated that search-warrant applications be completed in no more than 45 minutes, with an ideal goal of 30 minutes. The Committee further outlined six steps to be taken in securing a telephonic search warrant when a police officer believes that there is probable cause to search. Thereafter, the Administrative Office of the Courts conducted two pilot programs. The first lasted only two months and yielded little usable data.

The second ran in Burlington County from September 2011 to March 2012. During that period, the State Police and local law-enforcement agencies filed 42 telephonic automobile search-warrant applications. The average request for an automobile warrant took approximately 59 minutes, from the inception of the call to its completion. Separately, the State Police reported to the Administrative Office of the Courts that Troop C applied for 16 telephonic search warrants, with the process taking, on average, 1.5 to 2 hours. The State Police also reported that since Pena-Flores, its state-wide consent to search requests rose from approximately 300 per year to over 2500 per year, and that its patrol policy is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or in-person.  

5. In State v. Shannon, 210 N.J. 225, 227 (2012), the Court declined the State’s request to revisit Pena-Flores, finding that the motor-vehicle data submitted by the State was insufficient “to establish the ‘special justification’ needed to depart from precedent.” However, the Court invited the parties to amass and develop a more thorough, statistical record relating to motor vehicle stops by the State Police and local authorities. Thereafter, the Office of Law Enforcement Professional Standards published a report entitled “The Effects of Pena-Flores on Municipal Police Departments.” The one firm conclusion reached by the report was that “after the Pena-Flores decision, there was a noticeable increase in consent to search requests for both municipal departments and the State Police; even with only a slight increase in the number of motor vehicle stops.”  

6. Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a “special justification” is required to depart from precedent. That said, stare decisis is not an inflexible principle depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court,  

therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New Jersey Constitution and whether there is “special justification” for departing from it.   

7. The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the seizure of the car and the motorist’s detention may be a greater intrusion on a person’s liberty interest than the search is on a person’s privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach to roadside searches premised on probable cause places significant burdens on law enforcement without any real benefit to the public.  

8. Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Court’s decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so on the side of the road.  

9. The Court’s decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on probable cause governs.  

The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion. 

JUSTICE LaVECCHIA, DISSENTING, expresses the view that the State has not shown a special justification to merit departure from settled law, and, therefore, stare decisis should prevail. Justice LaVecchia asserts that, contrary to the majority’s characterization, Cooke and Pena-Flores are not “unsound in principle,” and, further, the State has failed to show that the current law is “unworkable in practice.” 

RULE OF EVIDENCE 534 (NEW) - MENTAL HEALTH SERVICE PROVIDER~PATIENT PRIVILEGE - ADOPTED To BE EFFECTIVE JULY 1, 2016

NOTICE TO THE BAR

NEW JERSEY RULE OF EVIDENCE 534 (NEW) - MENTAL HEALTH SERVICE

PROVIDER~PATIENT PRIVILEGE - ADOPTED To BE EFFECTIVE JULY 1, 2016

Pursuant to N.J.S.A. 2A:84A-35, attached is the Supreme Court's Order of

September 15, 2015 adopting new N.J.R.E. 534 of the New Jersey Rules of Evidence.

N.J.R.E. 534 creates a unified mental health service provider privilege, which is

intended to modify or replace the different and occasionally inconsistent privileges that

currently exist for communications between patients and various mental health service

providers. The privilege applies to confidential communications between a mental

health service provider and a patient during the course of treatment of, or related to, the

patient's mental or emotional health condition.

N.J.R.E. 534 applies to confidential communications made to the following

mental health service providers: (1) psychologists; (2) physicians, including

psychiatrists; (3) marriage and family therapists; (4) social workers, including social

work interns and certified school social workers; (5) alcohol and drug counselors;

(6) nurses; (7) professional counselors, associate counselors or rehabilitation

counselors; (8) psychoanalysts; (9) midwives; (1 0) physician assistants; and (11)

pharmacists. The proposed rule, however, specifically excludes communications made

between those service providers and victims of violent crimes. Those communications

are instead evaluated under the "Victim Counselor Privilege" contained in N.J.R.E. 517.

The new rule proposal was presented and discussed at a Judicial Conference on

September 2, 2015 in accordance with the requirements of N.J.S.A. 2A:84A-34. The

1

proposal, as recommended by the Supreme Court, was previously announced by

Notices to the Bar dated August 7, 2015 and August 14, 2015.

The Court's Order notes that the effective date of the new rule is July 1, 2016.

The action of the Court is subject to the terms of N.J.S.A. 2A:84A-36.

Dated: September 15,2015

2

SUPREME COURT OF NEW JERSEY

It is ORDERED that, pursuant to N.J.S.A. 2A:84A-33 through 2A:84A-36,

the attached new N.J.R.E. 534 of the New Jersey Rules of Evidence is adopted

to be effective July 1, 2016.

Dated: September 15, 2015

For the Court,

/s/ Stuart Rabner

Chief Justice

N.J.R.E. 534. Mental Health Service Provider- Patient Privilege (NEW)

,(gl Definitions.

In this rule:

ill "Confidential communications" means such information transmitted

between a mental-health service provider and patient in the course of treatment of. or

related to. that individual's condition of mental or emotional health. including information

obtained by an examination of the patient, that is transmitted in confidence, and is not

intended to be disclosed to third persons. other than:

.ill those present to further the interest of the patient in the diagnosis

or treatment;

® those reasonably necessarv for the transmission of the information,

including the entity through which the mental-health service provider practices; and

ilill persons who are participating in the diagnosis or treatment of the

patient under the direction of a mental-health service provider, including authorized

members of the patient's family, the patient's guardian, the patient's conservator, and/or

the patient's personal representative.

m "Diagnosis or treatment" shall include consultation. screening, interview,

examination, assessment, evaluation, diagnosis or treatment.

Ql "Mental-health service provider" means a person authorized or

reasonably believed by the patient to be authorized to engage in the diagnosis or

treatment of a mental or emotional condition, and is specifically intended to include:

.ill Psychologists, consistent with the definition under N.J.R.E. 505 and

N.J.S.A. 45:14B-2(a), ''licensed practicing psychologist." and N.J.S.A. 45:14B-6(a)(1),

(b), (d), (d), (e), (f), and (g), governing persons engaged in authorized activities of

certain unlicensed practicing psychologists;

® Physicians, includinq psychiatrists, consistent with the definition

under N.J.R.E. 506 and N.J.S.A. 2A:84A-22.1 (b);

ilill Marriage and family therapists. consistent with the definition under

N.J.R.E. 510 and N.J.S.A. 45:8B-2(a), "licensed marriage and family therapist." and

N.J.S.A. 45:88-6, governing unlicensed persons who may engage in specified activities

related to, consisting of marriage and family therapy;

.ilid. Social workers, consistent with the definition under N.J.R.E. 518

and N.J.S.A. 45:15BB-3, and including social work interns and certified school social

worker as defined in N.J.S.A. 45:15BB-5(b) and (c);

M Alcohol and drug counselors, consistent with the definitions under

N.J.S.A. 45:20-3 and N.J.A.C. 13:34C-4.5 (licensed and certified Alcohol and drug

counselors);

.0ill Nurses. consistent with the definition under N.J.S.A. 45:11-23;

(vii) Professional counselors. associate counselors or rehabilitation

counselors consistent with the definition under N.J.S.A. 45:88-40, -41 , -41.1

8, and persons authorized to provide counseling pursuant to N.J.S.A. 45:88-48(b), (c),

~ .

(viii) Psychoanalysts. consistent with the definition under N.J.S.A.

45:1488-3;

ful Midwives, consistent with the definition under N.J.S.A. 45:10-1

00 Physician assistants, consistent with the definition under N.J.S.A.

45:9-27.15; and

ful Pharmacists. consistent with the definition under N.J.S.A. 45:14-41 .

!il "Patient" means an individual, who undergoes diagnosis or treatment with

or by a mental-health service provider for the purpose of diagnosis or treatment related

to that patient's condition of mental or emotional health, including addiction to legal or

illegal substances. whether referred to as client, person in therapy, or some other

equivalent term in the context of the relationship.

LQl General Rule of Privilege. ·

A patient has a privilege to refuse to disclose in a proceeding, and to prevent any

other person from disclosing confidential communications. as defined in subsection

(a)(1).

!gl Who May Claim the Privilege.

The privilege under this rule may be claimed by the patient, the patient's

guardian or conservator, the personal representative of a deceased patient. or if

authorized by the patient. a member or members of the patient's family. The person

who was the mental-health service provider at the time of the communication is

presumed to have authority to claim the privilege, but only on behalf of the patient or

deceased patient. The mental-health service provider shall claim the privilege unless

otherwise instructed by the patient or. as applicable, members of the patient's family,

the patient's guardian or conservator, or the personal representative of a deceased

patient.

LQl Violent Crime Victim: Other Communications.

(1) Violent Crime Victim.

Any confidential communication between any of the mental health service

providers listed in this rule and a victim of violent crime. as defined in N.J.S.A. 2A:84A-

22.14c. shall be evaluated under the provisions of the "Victim Counselor Privilege"

contained in N.J.R.E. 517. and not under the provisions set forth herein. Nothing in this

act shall be construed to dilute or alter the scope of the Victim Counselor Privilege .

.lfl Other Communications.

Nothing in this rule shall be construed to limit or otherwise affect any privileges

that may apply to communications outside the scope of confidential communications as

defined in subsection (a)(1) above.

~ Exceptions.

There is no privilege under this rule for a communication:

(1) Relevant to an issue of the patient's condition in a proceeding to commit

the patient or otherwise place the patient under the control of another or others because

of alleged incapacity;

(2) Relevant to an issue in a proceeding in which the patient seeks to

establish his competence. or in a criminal matter where the defendant's competence to

stand trial is put at issue;

(3) Relevant to an issue in a proceeding to recover damages on account of

conduct of the patient which constitutes a crime;

(4) Upon an issue as to the validity of a will of the patient;

(5) Relevant to an issue in a proceeding between parties claiming by testate

or intestate succession from a deceased patient;

(6) Made in the course of any investigation or examination, whether ordered

by the court or compelled pursuant to Court Rule. of the physical. mental, or emotional

condition of the patient. whether a party or a witness. with respect to the particular

purpose for which the examination is ordered, unless the court orders otherwise. and

provided that a copy of the order is served upon the patient prior to the communication.

indicating among other things that such communications may not be privileged in

subsequent commitment proceedings;

(7) Relevant to an issue in a proceeding in which the condition of the patient

is an element or factor of the claim or defense of the patient or of any party claiming

through or under the patient or claiming as a beneficiary of the patient through a

contract to which the patient is or was a party or under which the patient is or was

insured;

(8) If the court finds that any person, while a holder of the privilege, has

caused the mental-health service provider to testify in any proceeding to any matter of

which the mental-health service provider gained knowledge through the communication;

(9) In the course of mental health services sought or obtained in aid of the

commission of a crime or fraud, provided that this exception is subject to the protections

found in N.J.R.E. 501 and N.J.R.E. 509 and is not intended to modify or limit them;

(1 0) Relevant to an issue in a proceeding against the mental-health service

provider. arising from the mental-health services provided, in which case the waiver

shall be limited to that proceeding.

(11) Relevant to a proceeding concerning an application to purchase. own, selL

transfer. possess or carry a firearm. including but not limited to applications pursuant to

N.J.S.A. 2C:58-3, or 2C:58-4, or a proceeding concerning the return of a firearm

pursuant to N.J.S.A. 2C:25-21 (d)(3).

ill Disclosure Pursuant to Statutorv Duty to Report to a Public Official or

Office.

Nothing in this rule shall prevent a court from compelling disclosure of a

statement by a mental-health service provider. patient or other third party to a public

official when such statement is made in compliance with a statutory duty to report to a

public officiaL or information required to be recorded in a public office that was in fact

recorded in a public office, including but not limited to reports of child or elder abuse or

neglect or the abuse or negleCt of disabled or incompetent persons. unless the statute

requiring the report of record specifically provides that the statement or information shall

not be disclosed .

.(g} Disclosure Where Waiver or Where Exercise of Privilege Would Violate a

Constitutional Right.

Nothing in this rule shall prevent a court from compelling disclosure where:

ill the patient has expressly or implicitly waived the privilege or authorized

disclosure; or

~ exercise of the privilege would violate a constitutional right.

Adopted September 15,2015 to be effective July 1, 2016.