Many people are familiar with the fact 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.
Can You Testify Against Your Spouse?
Most people know that the government can’t force you to testify against your spouse, but fewer people are aware that a spouse can choose to testify against their partner if they wish to do so. For example, if a wife decides to testify against her husband in a murder trial, her husband’s criminal attorney cannot stop her from testifying.
When Does Spousal Privilege Not Apply?
California Evidence Code sections 970 and 971 (EC) define the state’s protections against spouses being made to testify against each other. The law only protects couples who are currently married to one another. Fiancés, exes, and long-term boyfriends or girlfriends cannot take advantage of the spousal privilege in California. The law also exempts those not legally married, such as those fraudulently married in a bigamist relationship or those who only wed to skirt immigration laws. Once someone has divorced, they can be forced to testify against their ex. If someone’s spouse dies though, they still cannot be compelled to testify against them.
The law also does not protect couples who get married solely to claim marital privilege. In other words, if a man commits a crime and he and his girlfriend suddenly get married immediately after he does so, the prosecution may be able to show they only got married to prevent her from being made to testify —and then the wife can still be forced to testify against her husband.
Additionally, the privilege does not apply when the trial involves one of a handful of crimes. Under Evidence Code section 985 (EC), there is no spousal privilege for cases involving domestic violence against a spouse or crimes against your children. Under this law, a spouse can’t claim spousal privilege 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.
While most people know about the spousal privileges regarding testifying against one another, it is less common knowledge that 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.
Another major difference between this privilege and that involving testimony against a spouse is that the law still protects exes, provided the couple was married at the time the conversation took place. On the other hand, information that was shared before a couple officially tied the knot is not considered privileged. Because communications made while a couple is married are always protected, spousal privilege continues to apply after one party dies.
Limitations to Protected Spousal Communications
There are a few limitations to spousal communications privileges in California. First, it does not cover acts, only written and oral communication. In other words, if a husband sees his wife shoot someone, her attorney can’t stop him from saying so if he wishes to testify against his wife. But the lawyer could prevent the husband from disclosing that his wife told him she wanted to kill the victim.
Unsurprisingly, the privilege only applies to confidential communications. For example, if someone said something in front of a whole table of guests during a dinner party, it would not be protected. Similarly, the privilege does not apply when the spouse is charged with the crime has already revealed the confidential communication to others.So if a woman says she told her husband about how much she wanted to cut someone’s break lines, he would be legally required to disclose this information if he agreed to take the stand.
Also, communications aren’t protected if they were made to help someone commit or plan to commit a crime. So if two partners discussed robbing a jewelry store, their discussion of the plan would not be considered confidential. However, they could not be forced to testify against each other if they were still married.