Does marital privilege stop my spouse from testifying against me?

Posted on February 10, 2022

Maybe. It depends on the particular facts of the case.

1. How does California law define the “marital privilege”?

The “marital privilege” (also known as the “spousal privilege”) is one of the more complicated California evidentiary privileges.

This is because the privilege actually consists of two privileges. These are:

• the spousal testimonial privilege, and
• the confidential marital communications privilege.

The spousal testimonial privilege means that your current spouse can refuse to testify in a court proceeding against you. But if your spouse chooses to testify, you cannot stop him/her.¹

The confidential marital communications privilege, on the other hand, means that your spouse cannot testify about the information you shared with him/her in confidence while you were married. And even if your spouse wants to testify about confidential marital communications, you can prevent him/her from doing so.²

2. Are there times when a person waives the marital privilege?

Yes. Specific actions by a person who holds a marital/spousal privilege in California can “waive” that privilege—that is, make it disappear.

For example, you waive your spousal testimonial privilege in a given court proceeding by choosing to testify against your spouse in that proceeding.³

Also, the confidential marital communications privilege is waived if the person who holds the privilege either:

• discloses a significant part of the privileged communication, or
• consents to the disclosure of the privileged communication by anyone else.⁴

Legal References:

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.