The “Marital Privilege” in California – A Quick Primer

California’s marital/spousal privilege gives you the right to refuse to testify against your spouse in a criminal jury trial.¹

The marital privilege also allows you to refuse to disclose any confidential communications made between you and your spouse during the course of the marriage. This includes the right to prevent your spouse from disclosing any such confidential communications.²

Examples

• The prosecutor in your mail fraud case suspects that your wife may know something about the scheme that gave rise to the charges. However, your wife cannot be forced to testify against you because of the spousal privilege.
• In your robber case, the prosecution calls your ex-husband to testify about things you might have told him about the robbery. You have the right to prevent him from disclosing anything you told him in confidence while you were married.

CALIFORNIA LAW	Marital testimonial privilege	Confidential marital communications privilege
Definition	Prosecutors cannot force you or your spouse to testify in court against each other	You can choose not to disclose in court any confidential communications that occurred between you and your spouse while married.
Power to stop your spouse from testifying against you	No	Yes
Who privilege applies to	Current spouses	Current and former spouses
Basis in Law	Evidence Code 970 and 971	Evidence Code 980
Exceptions	Criminal cases where one spouse is charged with bigamy, child neglect or abandonment, or any crime against the person or property of the other spouse or a child, parent, relative, or cohabitant of either spouse, (or of a third person in some cases)	Communications made to enable or help to commit or plan a crime or fraud, or When a spouse chooses to reveal marital communications in their own criminal case

In order to help you better understand the spousal privilege in California, our criminal defense attorneys will address the following:

• 1. What is the spousal testimonial privilege (Evidence Code 970 & 971)?
  • 1.1. Can I choose to testify?
  • 1.2. To whom does the spousal privilege apply?
  • 1.3. Which crimes does the marital testimonial privilege not apply to?
• 2. What is the privilege for confidential marital communications (Evidence Code 980)?
  • 2.1. What counts as “confidential marital communications”?
  • 2.2. What are exceptions to the privilege for confidential marital communications?
• 3. How do I waive the California marital privilege?
• Additional reading

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the spousal testimonial privilege?

The spousal testimonial privilege (outlined in California Evidence Code sections 970 and 971) means that prosecutors cannot force you to testify in court—including in a criminal case—against your husband or wife.³

This aspect of the California marital privilege is an exception to the general rule that anyone who prosecutors call to be a witness in a court case must testify.⁴

1.1. Can I choose to testify?

Yes. One important point about the marital testimonial privilege in California is that it does not mean that your spouse cannot testify against you. It only means that they may refuse to testify against you if they so choose.⁵

If your spouse chooses to testify against you, then they may do so—and you have no right to prevent the testimony.⁶

1.2. To whom does the spousal privilege apply?

The marital testimonial privilege only applies to people who are married at the time the testimony would occur. Once you get divorced, this spousal privilege disappears.⁷

In other words, the marital privilege not to testify applies only to current spouses—not to

• ex-spouses,
• fiancés/fiancées, or
• common-law spouses (people who live together as spouses but have not formally married).⁸

Marriage must be valid

In addition, the spousal privilege for testimony only applies to valid marriages. This means that it does not apply if your marriage is invalid because:

• It is bigamous (you are married to more than one person at the same time);⁹
• It is a case of incest (marriage between close relatives);¹⁰ or
• You and your spouse married solely to secure an immigration benefit or for another fraudulent purpose.¹¹

Finally, the marital testimonial privilege will not apply to people who marry solely for the purpose of claiming the privilege. This means that it will not apply if:

1. The alleged crime occurred before you got married,
2. The spouse that prosecutors call as a witness knew about the subject they are being called to testify about before the marriage, and
3. When you got married, the spouse being called as a witness knew that the other spouse had been arrested for or charged with the alleged crime.¹²

Example: Prosecutors charge Roberta with fraud. As soon as her friend Enrique (who knows about the fraud) finds out prosecutors want him to testify against Roberta, the two of them elope. Even so, Enrique must testify against Roberta since their sham marriage will not qualify them for the spousal privilege.

1.3. Which crimes does the marital testimonial privilege not apply to?

In addition, the spousal testimonial privilege does not apply to California criminal cases where one spouse is charged with:

1. Any crime against the person or property of the other spouse or a child, parent, relative, or cohabitant of either spouse,
2. Any crime against the person or property of a third person that occurred in the course of a crime against the person or property of the other spouse,
3. Bigamy, or
4. Child neglect or spousal abandonment.¹³

Example: Tony marries Elaine, who has an 8-year-old son from a previous marriage. One night while Elaine is out, the child falls out the window due to Tony’s lack of supervision.

After prosecutors charge Tony with child endangerment, they can call Elaine to testify against Tony even if she does not want to. This is because prosecutors charge Tony with a crime against her child—and this means the marital privilege does not apply.

2. What is the privilege for confidential marital communications (Evidence Code 980)?

The other major form of marital privilege in California is the privilege for “confidential marital communications,” set out in Evidence Code 980.¹⁴

Under the confidential marital communications privilege, you have a privilege not to disclose in court any confidential communications that occurred between you and your spouse while you were married.¹⁵

How the marital testimonial privilege is different

There are two very important differences between the spousal testimonial privilege and the privilege for confidential marital communication. These are:

1. The privilege for confidential marital communication belongs to both you and your spouse—that is, either you or your spouse can stop the other from testifying about confidential communications between you even if one of you wishes to do so;¹⁶ and
2. The privilege for confidential marital communications applies even after you have divorced.¹⁷

Example: Charlene kills her mother. During Charlene’s trial for voluntary manslaughter, Charlene can prevent her husband from testifying about what she told him about the killing. He can, however, testify about things that are not confidential marital communications—such as the fact that she was not at home when the killing occurred.

2.1. What counts as “confidential marital communications”?

The privilege for confidential marital communications applies only to things that you and your spouse tell each other another while you are married. It does not apply to communications that take place between you

• before you get married, or
• after you get divorced.¹⁸

Example: While Rick and Jean are dating, Rick tells Jean he deals marijuana. Then they marry but divorce after a few months.

If prosecutors then charge Rick with selling drugs and call Jean to testify against him, Jean must testify honestly about what Rick told her about selling marijuana before they got married. This is because neither California marital privilege applies.

1. The spousal testimonial privilege does not apply because she and Rick are divorced.
2. Plus the marital confidential communications privilege does not apply to things Rick told her before they were married.

Also, this privilege applies only to “communications” between you and your spouse—that is, things that you tell each other, either

• in writing, or
• orally.¹⁹

Acts are not communications

The marital communications privilege does not apply to acts—or to the fact that communication occurred at all.²⁰

Example: After John commits burglary, he calls his wife Debra to tell her. Later, she saw him hiding stolen jewelry in their garage. Because of the confidential marital communication privilege, Debra may not testify about anything he told her about the burglary. However, she may testify about the fact that

• he called her on his cell phone the night of the burglary, and
• she saw him hiding jewelry in the garage.

Finally, the marital privilege applies only to confidential communications between you and your spouse.²¹ It does not apply to things that you and your spouse say to each other loudly in public, for example, or with other people around.

2.2. What are exceptions to the privilege for confidential marital communications?

The confidential marital communications privilege does not apply to any communications that were made to enable or help anyone to commit or plan

• a crime or
•  fraud.²²

So, if you and your spouse carry out criminal activity together, the marital communications privilege does not cover any conversations you have to plan or enable that activity.

(Note that, as long as you are still married when criminal charges are filed, prosecutors cannot force you to testify against your spouse – and vice versa – because of the spousal testimonial privilege.)

Example: Police arrest spouses Cecilia and Ricardo for an extortion they were planning. Cecilia wants to come clean, and Ricardo does not have the right to prevent Cecilia from testifying about the conversations they had because they took place to enable the planning of a crime.

Also, the marital communications privilege does not apply when a criminal defendant who is one of the spouses chooses to reveal the confidential communications in their own criminal case.²³

3. How do I waive the California marital privilege?

If you hold a marital/spousal privilege in California, certain actions can “waive” that privilege—that is, make it disappear.²⁴

First of all, you waive your spousal testimonial privilege in a given court proceeding by choosing to testify against your spouse in that proceeding.²⁵

In other words, if you testify against your spouse in a particular court case, you may not then claim the marital privilege to avoid giving different or further testimony in that same case.

Also, there is a waiver of confidential marital communications privilege if you either:

• disclose a significant part of the privileged communication, or
• consent to the disclosure of the privileged communication by anyone else.²⁶

Additional reading

For more in-depth information, refer to these scholarly articles:

• Let My Love Open the Door: The Case for Extending Marital Privileges to Unmarried Cohabitants – University of Maryland Law Journal of Race, Religion, Gender & Class.
• The Marital Privilege in the Twenty-First Century – University of Memphis Law Review.
• Marital Privilege in Domestic Violence and Child Abuse Cases in Federal Courts: Exceptions to the Privilege and Compelling Testimony – Department of Justice Journal of Federal Law & Practice.
• Twenty-First Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail – South Carolina Law Review.
• Updating the Marital Privileges: A Witness-Centered Rationale – Wisconsin’s Women’s Law Journal.

---

Legal References: