Having to testify in court as a witness may be a stressful experience for many people who are put in that situation. Imagine being asked to testify against your spouse! To avoid this, California (like many jurisdictions) has recognized two distinct and independent marital privileges protecting certain things from being introduced as evidence in court. A spouse’s testimonial privilege, and a privilege protecting confidential marital communications may be able to prevent a spouse from testifying against his or her spouse, or from certain communications made during the marriage from being introduced as evidence.
MARITAL TESTIMONIAL PRIVILEGE (Immunity): This privilege protects spouses with the privilege (or the spouse ‘holding the privilege’) from testifying as a witness against his or her spouse (it gives the spouse immunity from testifying). In California, this privilege means that the witness-spouse may not be even called to testify (so the Prosecutor cannot even call the witness spouse as a witness against his or her spouse).
IN ANY PROCEEDING: This testimonial privilege applies in “any” proceeding, be it in a civil or criminal case.
California’s marital privileges differ from the Federal Rules of Evidence. While under Federal Rules, the testimonial privilege applies only to criminal cases, in California this privilege extends to both criminal AND civil.
WITNESS-SPOUSE HOLDS PRIVILEGE: The witness-spouse holds the privilege. They cannot be forced to testify, but may voluntarily do so, and their spouse cannot stop them. So if Wife wants to testify against Husband, Husband may not stop her from testifying (see People v. McWhorter).
PRIVILEGE IF THE SPOUSE IS A PARTY OR NOT: There are two different privileges with in this testimonial privilege. One applies when the spouse is a party to the proceeding, and one where the spouse is not a party to the proceeding:
1. A spouse may refuse to testify against their spouse whether or not they are a party. Pursuant to California Evidence Code §970, even if the non-witness spouse is not a party, the witness spouse may refuse from testifying. This could happen, for example, in a grand jury investigation.
2. A spouse may refuse to testify in a proceeding where the non-witness spouse is a party to the proceeding. Pursuant to California Evidence Code §971, if the non-witness spouse is a party to a case, the witness spouse cannot be called to testify.
DURATION: This privilege terminates at divorce. This means that there is no privilege to refuse to testify after the marital relationship is ended. However, the privilege protects matters that occurred before or during marriage; what matters is that the spouses are married at the time of trial.
A separation may not be enough. Even after years of separation, the privilege may continue to exist. (See Jurcoane v. Sup Ct., where 17 years of separation did not terminate the privilege).
A Prosecutor could, however, call a witness-spouse to testify if the Prosecutor has a good faith belief that the couple is not married.
WITNESS SPOUSE CAN WAIVE THE TESTIMONIAL PRIVILEGE: The marital privilege can be waived in two ways.
1) A spouse can waive his or her privilege by voluntarily testifying. Unless erroneously compelled to do so, a married person who testifies in a proceeding waives the privilege.
2) Waiver occurs in an action where the “immediate benefit” of the spouse or spouses is at issue. This usually occurs in cases regarding community property, and there appears to be conflicting California authority on how the immediate benefit test is applied.
MARITAL COMMUNICATION PRIVILEGE: this privilege protects confidential communications made between spouses during marriage (it doesn’t matter if the couple is married at trial, what matters is if the couple was married when the communication was made).
IN CONFIDENTIAL COMMUNICATIONS: This privilege applies only when the communication is made between spouses in confidence. That means if there were other people present (sometimes including eavesdroppers), or the communication was made in a place the couple had no ‘reasonable expectation of privacy,’ then the communication is not protected by the privilege, and may be introduced into evidence.
In some jurisdictions, communication may include acts intended to convey a message. However, most California courts restrict the privilege to written or oral communications (see People v. Bradford).
BOTH SPOUSES HOLD THE PRIVILEGE: For communications, the privilege is with both spouses individually. That means even though one spouse is willing to testify about a confidential marital communication, the other spouse may assert the privilege to prevent the testimony of the other spouse (compare this to the testimonial privilege, which is held by the witness-spouse).
Unlike the testimonial privilege, which ends at divorce, the privilege for marital communication goes on after the divorce. So long as the couple was married when the communication was made, it will be privileged. Any communication made after divorce to the former spouse will not be privileged, however.
*Impact of Divorce
This privilege survives the termination of marriage. The privilege for communications may be asserted even though the marriage has since been dissolved, pursuant to California Evidence Code §980.
*Impact of Death
Confidential marital communications are protected after a spouse’s death only if the surviving spouse claims the privilege. After both spouses die, the privilege ends.
EXCEPTIONS: these privileges and rules of law, like most rules, have exceptions. These privileges are unavailable (meaning the a spouse cannot prevent their spouse from testifying, or the spouse cannot call the privilege to prevent him/herself from testifying in a number of circumstances (fully described in California Evidence Code §972 and §981).
If the testimony relates to litigation between spouses (custody suits between spouses, for example), proceedings concerning commitment or competency (conservatorship proceedings, for example), and a few others fully listed in the evidence code, the privileges do not apply. Another big exception is the crime-fraud exception (which prevents the privileges from protecting a spouse who made communications to help or enable the crime or fraud from taking place.
These privileges may also be waived at times.
WHY THE PRIVILEGES EXIST:
These marital privileges are rooted in a deep belief that in order to preserve and promote an honest marriage, where spouses freely communicate and share, these privileges are required. Society stands to lose more from a disruptions of a marital relationship than it stands to gain from testimony of a spouse, California believes (See California Evidence Code §970 comments section).
VALID MARRIAGE REQUIRED:
The point of these privileges is to protect marital relationships. Therefore, a valid marriage (or valid domestic partnership) is required. Privileges are inapplicable to non-marital cohabitants!
APPLICABLE TO REGISTERED DOMESTIC PARTNERS:
The California Domestic Partner Rights and Responsibilities Act gives registered domestic partners gives same-sex registered partners ‘marital’ evidentiary privileges (under Family Code §297.5). Therefore, California courts would grant these privileges to registered domestic partners as well.
*For another article on this topic of testimonial privileges (and not marital communication privileges), read “Standing by Your (Wo)Man“ from the Continuing Legal Education of the Bar-California.