Does the “marital privilege” mean I can stop my spouse from testifying against me?

Posted on October 15, 2014

Answer: It depends.

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

This is because it is actually two privileges: 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.

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.

Plus, the confidential marital communications privilege applies to ex-spouses as well as current ones. But it also applies only to confidential communications that took place while you were married (not before or after).

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, Court TV, 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.