California Evidence Code § 971 EC is the “spousal privilege” rule, which means a husband or wife cannot be forced to testify in court against their spouse if they do not wish to. It does not matter whether the case is criminal or civil.
The entire text of the statute reads:
971. Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.
California Evidence Code 971 EC gives currently married spouses the evidentiary privilege of not testifying against each other in a legal proceeding. Even if the non-party spouse has knowledge that would be relevant to the case, the non-party spouse cannot be forced to testify against their spouse if they do not want to.
Example: Sally and Tom are married. Tom has been charged with robbing a store. Tom confessed to Sally in confidence that he did rob the store. Prosecutors subpoena Sally to testify against Tom, but Sally can refuse under the spousal privilege.
Certainly, spouses can always waive this “spousal privilege.” If the non-party spouse wishes to testify against their spouse, they certainly can. The spouse who is the party in the legal proceeding cannot stop it.
The spousal privilege applies only when the two people are currently in a valid marriage. If they are divorced when the legal proceeding occurs, the non-party ex-spouse cannot invoke the spousal privilege.1
- California Evidence Code 971 EC – Privilege not to be called as a witness against spouse. People v. McWhorter (Cal. Aug. 6, 2009), 47 Cal. 4th 318. Duggan v. Superior Court (Cal. App. 1st Dist., 1981), 127 Cal. App. 3d 267. EC 970.