Last Updated on January 13, 2025
Many people understand that spouses can’t be forced to testify against one another, but the ins and outs of marital privilege are a bit complex. Since we’ve previously discussed how privileged communications work between lawyers and clients, patients and therapists, doctors and patients, and priests and worshipers, it seems only appropriate to discuss the marital privilege laws in California.
What is Spousal Immunity?
Also called spousal or marital privilege, this section of the law protects spouses from having to worry about their spouses being forced to turn against them. Both federal and state laws specify protections for married couples, instituting spousal privilege in both criminal and civil cases. These protections cover forced testimony and privileged communications made in private. Here are some essential things to understand about both aspects of spousal immunity:
You Can Choose to Testify Against Your Spouse
California Evidence Code sections 970 and 971 (EC) define the state’s protections against couples testifying against one other. While the government can’t force you to testify against your spouse, a spouse can choose to testify against their partner if they wish to do so.
Privileged Communications Between Spouses
Communications between two partners may also be protected under evidence code 980 (EC). Unlike the protections regarding testifying against one another, neither party can waive this privilege without the other’s consent. So, for example, if a wife chose to testify against her husband in a murder trial, she could not disclose confidential communications between her and her husband unless he consented to it first.
When Does Spousal Privilege Not Apply?
There are many exceptions to spousal privilege laws, depending on the current status of the relationship, whether the spouse learned about seeing something firsthand or only through communication with their partner, and the context of how the information was learned. To further confuse things, the rules differ between forced testimonies and privileged communications.
In both cases, though, these laws only protect those who are legally married. So those involved in bigamist relationships or who wed someone to skirt immigration laws cannot be protected. Similarly, this protection does not protect couples who get married solely to claim marital privilege.
On the other hand, both laws cover widows, as they are still considered to be married to the deceased.
Forced Testimony Against a Spouse
This law only protects currently married couples from being forced to testify against one another. Fiancés, exes, and long-term boyfriends or girlfriends cannot take advantage of these protections.
Privileged Marital Communications
This type of spousal privilege does not cover things the individual witnessed firsthand but private written and oral communication between the parties. Only confidential communications are covered by this law. Similarly, the privilege does not apply when the spouse charged with the crime has already revealed the confidential communication to others. Additionally, communications aren’t protected if they were made to help someone commit or plan to commit a crime.
While you can be forced to testify against an ex, communications between married couples are still protected after a divorce, provided the couple was married when the conversation took place. On the other hand, information that was shared before a couple officially tied the knot is not considered privileged.
Does a Wife Have to Testify Against Her Husband in a Domestic Violence Case?
Under Evidence Code section 985 (EC), there is no spousal privilege for cases involving domestic violence against a spouse or crimes against the couple’s children. Under this law, a spouse can’t claim this right as a victim of domestic violence and still refuse to testify against their spouse who is the defendant. In fact, if the victim of domestic violence refuses to testify, they can still be fined for each day they refuse to appear in court, even if they will only be counseled rather than jailed for refusing to take the stand.
Marital Immunity Examples
There are many ins and outs to this legal protection, so here are a few examples to help you better understand how spousal privilege may apply in different situations:
- While in bed together, Alice told her husband, Albert, that she wanted to embezzle money from the bank where she worked. Even though they divorced, Albert cannot share this information because it was shared in a private conversation with his spouse.
- Janice finds out Juan has committed many crimes during their marriage and she feels betrayed because he convinced her he was a law abiding citizen. If she decides to testify against him, Juan’s criminal attorney cannot stop her because spouses can willingly testify against each other.
- If Harrison murders someone in front of Linda and then immediately marries her, the prosecution may be able to show they only got married to prevent her from being made to testify. If the prosecution is successful, Linda can still be forced to testify against Harrison.
- Corrine’s husband was arrested for domestic violence. She is afraid to testify against him, but cannot be excused from doing so under Evidence Code section 985 (EC).
- Angie tells her husband and their dinner party guests that she plans to commit insurance fraud. After their divorce, her ex-husband could be forced to testify about what he heard because the communication was not private and he is no longer married to her.
- Stephanie cut her neighbor’s break lines and told her wife, Elanor, about it in private later. She then went onto Facebook to brag about it. While her communication with Elanor would normally be privileged, it would no longer be after Stephanie shared the information with others. Elanor would continue to be protected from having to testify against Stephanie as long as they were still married though.
- A married couple plans to rob a jewelry store together. While they couldn’t be forced to testify against each other as long as they were married, spousal privilege laws would not cover any planning they did together. If they get a divorce, the wife can be made to testify against her husband.
If you have any questions about spousal privilege laws in California, please contact criminal defense attorney Peter M. Liss at (760) 643-4050 or (858) 486-3024.
