The “marital privilege” (also known as the “spousal privilege”) in California evidence law means that:
- You have the right not to testify against your husband or wife in a California criminal jury trial where they are charged with a crime;1 and
- You have the right not to disclose any confidential communications between you and your spouse—AND the right to prevent your spouse from disclosing any such confidential communications.2
The spousal privilege is an extremely important California evidentiary privilege.
This is because many criminal defendants have spouses or ex-spouses to whom the marital privilege might apply—and because spouses are often valuable sources of information about the events giving rise to criminal charges.
Here are some examples of how the spousal privilege might work in a California criminal case:
- A defendant is charged with mail fraud. The prosecutor suspects that the defendant's wife may know something about the scheme that gave rise to the charges. But the prosecutor may not call the wife as a witness against her husband, because of the spousal privilege.
- A woman is charged with being an accessory after the fact to a robbery. The robbery occurred while she was married to a man from whom she is now divorced. The prosecution calls him to testify about things she might have told him about the robbery. But she has the right to prevent him from disclosing anything she told him in confidence while they were married.
In order to help you better understand the spousal privilege in California criminal law, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. The Spousal Testimonial Privilege (Psychotherapist-Patient Privilege in California (Evidence Code 1014) & 971)
The spousal testimonial privilege (set forth in California Evidence Code sections 970 and 971) means that no one can be forced to testify in court—including in a criminal case—against his or her husband or wife.3
This aspect of the California marital privilege is an exception to the general rule that anyone who is called to be a witness in a court case must testify.4
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 s/he may refuse to testify against you if s/he so chooses.5
However, your spouse may also decide that s/he wants to testify against you. If this is the case, then s/he may do so—and you have no right to prevent the testimony.6
The prosecution thinks that John's wife Debra knows something about the burglary and would like her to testify at John's trial.
Debra may refuse to testify if she does not want to—this is her right under the California marital privilege.
But let's say Debra is angry with John and would like to testify that she overheard him and his friends discussing the burglary. Debra may choose to testify about this--the spousal privilege does not give John the right to prevent her from doing so.
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
- fiancés/fiancées, or
- common-law spouses (people who live together as spouses but have not formally married).8
Example: Let's return to John and Debra from the example above.
Let's say that they are married at the time the burglary occurred. But by the time police are ready to charge John with a crime, he and Debra are divorced.
Debra would prefer not to testify against John in his criminal trial. But the spousal privilege no longer applies to her.
Therefore, the prosecution can force her to testify against her will.
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 (a marriage between close relatives);10 or
- You and your spouse got married solely to secure an immigration benefit or for another fraudulent purpose.11
Finally, the marital testimonial privilege will not apply to marriages entered into solely for the purpose of claiming the privilege. This means that it will not apply if:
- The alleged crime occurred before the spouses got married,
- The spouse who is being called as a witness knew about the subject s/he is being called to testify about before the marriage, and
- When they got married, the spouse being called as a witness knew that his/her spouse had been arrested for or charged with the alleged crime.12
Example: Roberta, a college student, is charged under California's internet fraud laws for hacking into her college registrar's computer system.
Enrique is Roberta's best friend. He is also interested in computers and knows all about her hacking activities.
The prosecutor calls Enrique to testify against Roberta.
As soon as Enrique finds out he is being asked to testify against Roberta, the two of them drive to Las Vegas and get married, thinking that will allow Enrique to claim the marital privilege.
But in fact Enrique still must testify against Roberta—since their sham marriage will not qualify them for the spousal privilege.
In addition, the spousal testimonial privilege does not apply to California criminal cases where one spouse is charged with:
- Any crime against the person or property of the other spouse or a child, parent, relative, or cohabitant of either spouse,
- Any crime against the person or property of a third person that was committed in the course of a crime against the person or property of the other spouse,
- Bigamy, or
- Child neglect or spousal abandonment.13
Example: Tony and Elaine are married. Elaine has an 8-year-old son from a previous marriage.
One night while Elaine is out of town on business, Tony leaves the child alone while he goes to a friend's house. The child finds and plays with a loaded gun that belongs to Tony and accidentally shoots himself in the foot.
Tony is then charged under California's child endangerment law.
Elaine can be called to testify against Tony even if she does not want to. This is because Tony is charged with a crime against her child—and this means the marital privilege does not apply.
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, any person who has ever been married has a privilege not to disclose in court any confidential communications that occurred between that person and a spouse while they were married.15
There are two very important differences between the spousal testimonial privilege (discussed above) and the privilege for confidential marital communication. These are:
- The privilege for confidential marital communication belongs to both spouses—that is, either spouse can stop the other from testifying about confidential communications between them even if the other spouse wishes to do so;16 and
- The privilege for confidential marital communications applies even after the spouses have divorced.17
Example: Charlene is the adult daughter of a physically and emotionally abusive mother. During a violent argument with her mother, Charlene kills her with a knife.
Charlene then goes home and tells her husband Mickey about what just happened. Mickey is horrified and files for divorce the very next day.
Charlene is then charged with Penal Code 192(a) voluntary manslaughter.
Mickey would like to testify against Charlene in her criminal case. But the confidential marital communications privilege applies, even though they are now divorced.
Under this marital privilege, Charlene can prevent Mickey from testifying about what she told him about the killing. (He can, however, testify about other things that are not confidential marital communications—such as the fact that she was not at home when the killing occurred.)
The privilege for confidential marital communications applies only to things that spouses tell one another while they are married. It does not apply to communications that take place between spouses before they get married, or after they get divorced.18
Example: Rick and Jean are dating. Early in their relationship, Rick tells Jean that he sells marijuana. Jean is okay with that.
After dating for a year, Rick and Jean get married. But the marriage does not work out, and they divorce after only six months.
Rick is then charged under California's marijuana sales law. Jean is called to testify against him.
Jean must testify honestly about what Rick told her about selling marijuana before they got married—even if she does not want to.
This is because neither California marital privilege applies. The spousal testimonial privilege does not apply because she and Rick are divorced.
And 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 spouses—that is, things that they tell each other, either
- in writing, or
The marital communications privilege does not apply to acts—or to the fact that communication occurred at all.20
Example: Earlier in this article, we raised the example of John and Debra. John is accused of stealing from a jewelry store.
Right after the theft occurred, John called Debra on his cell phone to tell her about it. Later, she saw him hiding jewelry in their garage.
Debra wants to testify about the events surrounding the theft, but John does not want her to. Because of the confidential marital communication privilege, she 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 may testify that she saw him hiding jewelry in the garage.
Finally, the marital privilege applies only to confidential communications between spouses.21 It does not apply to things that spouses say to each other loudly in public, for example, or with other people around.
Example: At a cocktail party, Terrence and his wife Maureen get into a loud argument about an insider trading scheme Terrence is involved with. The other guests overhear quite a bit about the details.
Terrence is later charged with securities fraud. His conversation with Maureen at the party is not protected by the spousal privilege—because it was not a confidential marital communication.
There are two major exceptions to this confidential marital communications spousal privilege.
First, this marital 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 two spouses are involved in criminal activity together, any conversations they have to plan or enable that activity are not covered by the marital communications privilege.
(But note that, as long as they are still married when criminal charges are filed, one spouse may not be forced to testify against the other—because of the spousal testimonial privilege.)
Example: Cecilia and Ricardo are married. They work together to plan an extortion scheme targeting Ricardo's boss.
Later, both Cecilia and Ricardo are arrested in connection with the scheme.
Cecilia decides to come clean about the scheme in the hopes of getting a lighter sentence. Ricardo wants her to deny everything.
But Ricardo does not have the right to prevent Cecilia from testifying about the conversations they had about the extortion. Those conversations are not protected by the marital privilege 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 his/her own criminal case.23
Certain actions by a person who holds a marital/spousal privilege in California can “waive” that privilege—that is, make it disappear.
According to San Francisco criminal defense lawyer Neil Shouse24:
“All evidentiary privileges—including the marital privilege—can be waived. Generally speaking, the way waiver works is this: if you do whatever it is you have a privilege not to do (such as testify against your spouse, or reveal confidential marital communications), then you no longer have that privilege.”
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, 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.26
Call us for help…
If you have additional questions about the marital/spousal privilege in California, or you would like to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Evidence Code 970 EC – Spouse's privilege not to testify against spouse [Marital privilege]. (“Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.”)
See also Evidence Code 971 EC – Privilege not to be called as a witness against spouse [Marital privilege]. (“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.”)
2 Evidence Code 980 EC – Confidential marital communication privilege [spousal privilege]. (“Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.”)
3 Evidence Code 970 EC – Spouse's privilege not to testify against spouse [Marital privilege], endnote 1, above.
4 Evidence Code 911 EC – Refusal to be or have another as witness, or disclose or produce any matter. (“Except as otherwise provided by statute: (a) No person has a privilege to refuse to be a witness [other than through a defined privilege like the spousal privilege]. . . . (c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.”)
5 Evidence Code 970 EC [Marital privilege law], Law Revision Commission Comments. (“The privileges under this article are not as broad as the privilege provided by existing law. Under existing law, a married person has a privilege to prevent his spouse from testifying against him, but only the witness spouse has a privilege under this article.”)
6 See same.
7 Evidence Code 970 EC – Spouse's privilege not to testify against spouse [Marital privilege], endnote 1, above.
Evidence Code 971 EC – Privilege not to be called as a witness against spouse [Marital privilege], endnote 1, above.
See also People v. Dorsey (1975) 46 Cal.App.3d 706, 716-17. (“Since sections 970 and 971 are each couched in the present tense, it is clear that the [marital] privilege of not *717 being a witness against a spouse does not exist after the marital relationship is terminated by divorce.”)
8 See same.
See also People v. Delph (1979) 94 Cal.App.3d 411, 416.
9 See People v. Gallego (1990) 52 Cal.3d 115, 176-77. (“We need not dwell on the latter claim, because it is clear that whatever their nature, defendant's communications with Charlene were not marital communications. The record shows defendant was married to Carol Turks in Nevada in 1967, and that he never legally dissolved that marriage. Defendant's subsequent marriages to Charlene were illegal *177 and void (see Civ.Code, § 4401), and thus he had no right to assert the marital privilege.”)
10 People v. MacDonald (1938) 24 Cal.App.2d 702, 704. (“After Marjorie was sworn, defendant objected to her testifying against him on the ground that she was his wife. The objection was overruled, and she was permitted to testify at length as to her relations with him [no marital privilege applied]. The statutes of California, and Arizona where the marriage took place, prohibit the marriage of a father with his daughter. Section 59, Civil Code; section 2166, Revised Code of Arizona 1928, as amended by Laws 1931, c. 17, § 1. It is conceded that, if Marjorie was the daughter of defendant, the attempted marriage was a nullity and she could not be his wife.”)
11 Lutwak v. United States (1953) 344 U.S. 604, 614. (“When the good faith of the marital relation is pertinent and it is made to appear to the trial court, as it was here, that the relationship was entered into with no intention of the parties to live together as husband and wife but only for the purpose of using the marriage ceremony in a scheme to defraud, the ostensible spouses are competent to testify against each other [and may not claim the marital privilege].”)
12 Evidence Code 972 EC – Exceptions to [marital] privilege. (“(f) A proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify.”)
13 Evidence Code 972 EC – Exceptions to [marital] privilege. (“A married person does not have a privilege under this article in: . . . (e) A criminal proceeding in which one spouse is charged with: (1) A crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either, whether committed before or during marriage. (2) A crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse, whether committed before or during marriage. (3) Bigamy. (4) A crime defined by Section 270 or 270a of the Penal Code.”)
14 Evidence Code 980 EC – Confidential marital communication privilege, endnote 2, above.
15 Evidence Code 980 EC – Confidential marital communication privilege, endnote 2, above.
16 See same.
See also People v. Dorsey, endnote 7, above, at 717. (“That [marital] privilege against disclosure of privileged communications is vested in each spouse and consequently if a spouse is called as a witness **515 he or she may not testify as to confidential communications without his or her consent AND the consent of the other spouse. Either spouse may claim the privilege.”)
17 Evidence Code 980 EC, Law Revision Commission Comments. (“The [confidential communications marital] privilege may be claimed as to confidential communications made during a marriage even though the marriage has been terminated at the time the privilege is claimed. This states existing law.”)
18 Evidence Code 980 EC – Confidential marital communication privilege, endnote 2, above.
19 Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, 1347. (“Evidence Code section 980 grants a spouse the “[spousal] privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.” The privilege extends to written as well as oral communications.”)
20 Same, at 1348. (“Petitioner asserts the acts depicted on the tape are not privileged because acts are not communications. It is true that the fact of communicating, as opposed to the substance of the communication, is not privileged.”)
21 Evidence Code 980 EC – Confidential marital communication privilege, endnote 2, above.
22 Evidence Code 981 EC – Exception [to marital privilege]: Crime or fraud. (“There is no privilege under this article if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud.”)
23 Evidence Code 987 EC – Communication offered by spouse who is criminal defendant. (“There is no [marital] privilege under this article in a criminal proceeding in which the communication is offered in evidence by a defendant who is one of the spouses between whom the communication was made.”)
24 San Francisco criminal defense lawyer Neil Shouse is an honors graduate of UC-Berkeley and Harvard Law School. He served for five years as a Deputy DA for Los Angeles County, prosecuting more than 60 criminal trials and earning a phenomenal 96% success rate in felony jury trials. Now, as the founding partner of Shouse Law Group, he represents criminal defendants in all aspects of the criminal trial process, including important evidentiary privileges like the marital privilege.
25 Evidence Code 973 EC – Waiver of [spousal] privilege. (“(a) Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, does not have a privilege under this article in the proceeding in which such testimony is given.”)
26 Evidence Code 912 EC – Waiver of privilege [including marital privilege]. (“(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor- victim privilege) is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.”)