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Marital/Spousal Privilege

What is the Marital (Spousal) Privilege?

California law contains an essential protection for criminal defendants when it comes to their spouses and, in some instances, ex-spouses. Embodied in sections 970, 971, and 980 of the California Evidence Code, marital/spousal privilege gives a person the right not to testify against their spouse in a criminal jury trial or disclose confidential communications with their spouse during the time they are/were married.

Put simply, the marital/spousal privilege is the evidence rule that you have the legal right not to testify against your husband or wife in a criminal jury trial after they were charged with a crime.

Marital Spousal Privilege in California
The spousal privilege means that testimony against each other at a criminal trial can't be forced.

Further, when they are charged with a crime, you have the legal right not to disclose any confidential communications between you and your spouse, including preventing your spouse from disclosing any such communications. This spousal privilege is an important evidentiary protection because many criminal defendants have spouses or ex-spouses to which this rule could apply.

Spouses are frequently crucial sources of information regarding their partner's criminal conduct. They are often the primary target of police detectives investigating a crime allegedly committed by their spouse.

There are distinct rules integral to marital/spousal privilege: the testimonial privilege under Evidence Code 970 and 971 EC and the confidential communications privilege under Evidence Code 980 EC.

The testimonial privilege protects a person from being forced to take the stand and testify against their husband or wife at trial. The confidential communications privilege is much broader, protecting any confidential communication between spouses during the marriage or, in some cases, after the marriage has ended.

As with most evidentiary rights, there are some exceptions to these rules. Our Los Angeles criminal defense lawyers will explore both in greater detail below.

Marital/Spousal Testimonial Privilege - Evidence Code 970 & 971

Simply put, these laws protect spousal relationships from being forced to testify against one another in court. In other words, if you're on trial for a crime, the prosecution cannot subpoena your spouse as a witness against you, no matter how much they know about the alleged crime.

This right applies only to current valid marital relationships. In other words, the privilege does not apply to:

  • divorced couples, ex-spouses may be compelled to testify;
  • "common-law" couples, i.e., domestic partners who live as husband/wife but have not formally married;
  • couples engaged to be married;
  • invalid marriages (e.g., bigamy, incest, marriages for immigration fraud.

Readers should note that this marital testimonial privilege in California doesn't mean your spouse can't testify against you; instead, only they can refuse if that is their choice. If your spouse decides they want to provide testimony against you in a criminal trial, then you don't have the right to prevent it.

Readers should also note that marital testimonial privilege applies only to married people when the testimony occurs. If you get a divorce, the spousal benefit ends. This means the marriage privilege not to testify against their spouse only applies to a current spouse, not an ex-spouse, fiancés, or cohabitant.

What Are the Exceptions?

Testimonial privilege does not apply in the following situations under California law.

The spouse chooses to testify. Marital/spousal privilege does not mean a spouse's testimony is inadmissible—only that it can't be forced. If your spouse wishes to testify against you, they may do so.

Exceptions to the Marital Spousal Privilege
There are many exceptions to the California marital privilege, such as a spouse choosing to testify.

You married for the purpose of invoking the privilege. In other words, if the alleged crime was committed before you were married, your now-spouse knew about it and knew they would be called to testify, the marital privilege would not apply.

The crime is against your spouse or their family. Marital/spousal privilege doesn't apply to offenses committed directly against the spouse, children, or other family members. It also doesn't apply to crimes committed against third parties that coincide with crimes against the spouse.

Bigamy. If the defendant is on trial for bigamy, spouses may be compelled to testify even if they don't wish to do so.

Crimes of child neglect or spousal abandonment. If the defendant has been charged with a serious domestic violence-related crime, then the privilege to not testify does not apply.

See related: Hearsay Rule and Attorney-Client Privilege

Confidential Marital Communications Privilege – Evidence Code 980

The confidential communications privilege is much broader than the testimonial privilege, and it applies to any personal communication between spouses made during the marriage.

There is no time limit on when the communication took place, as long as it was between two spouses who were married at the time, it's confidential and protected by law, similar to attorney-client privilege. This privilege complements testimonial privilege and provides significant additional protection for defendants, but it is different from testimonial privilege in two key ways:

  • It is not limited to current marital relationships. The confidential communication privilege extends to divorced couples as long as they were married when the communication occurred;
  • The privilege extends to both spouses. With testimonial privilege, your spouse may choose to waive their right and testify against you. But under confidential communications, you have the right to forbid your spouse to divulge the contents of your conversations while married—even if they choose to testify.

The privilege of confidential marital communications only applies to issues spouses tell each other while married. EC 980 does not apply to communications between spouses before marriage or after divorce. There are essentially two scenarios in which confidential marital communications are not protected:

  • Communications involved in assisting with or planning a crime or act of fraud. For example, if two spouses conspire together to commit a crime, their conversations about that crime are not protected. Bear in mind, however, that the testimonial privilege still applies if they are currently married: one can't be compelled to testify against the other.
  • When the spouse is also on trial. If two spouses are on trial for the same crime, one spouse may choose to divulge confidential conversations as testimony in their case.

Forfeiting or Waiving Marital/Spousal Privilege

It's important to note that you can inadvertently waive your marital/spousal privilege by your choice of actions or words. If you consent to waive the right not to testify (e.g., as part of a plea agreement for your crime or some other reason), you can't go back and assert that right after the fact if you have a change of heart.

Forfeiting or Waiving Marital Spousal Privilege
A spouse can waive their spousal testimony privilege, such as part of a criminal plea agreement.

If you choose to testify against a spouse in one instance, you can't assert your marital privilege in another related instance. Any information divulged in waiving these rights can't be rendered inadmissible once you've given it.

If you need more information about marital/spousal privilege in California and how it applies to criminal charges and trials, reach out to our law firm to review the details of the case and legal options moving forward.

Eisner Gorin LLP is a top-ranked criminal defense law firm located in Los Angeles County, and we represent people throughout Southern California.

You can contact our defense lawyers for an initial case review by calling us at (310) 328-3776, or you can fill out the information on the contact form and send it to us.

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