Chapter 4 - §9. Spousal privileges

• Jurisdiction: United States

§9. Spousal privileges

There are essentially three privileges that apply to spouses: (1) the marital testimonial privilege that gives a person who is currently in a marital relationship two privileges: (a) the privilege not to testify against his or her spouse in any civil or criminal proceeding regardless of whether the other spouse is a party to the proceeding, and (b) the privilege not to be called as a witness by an adverse party in a proceeding when the spouse is a party; and (2) the marital-communications privilege that gives a person who is currently or formerly in a marital relationship the privilege to refuse to disclose confidential communications made during the marital relationship. See Evid. C. §§970, 980.

Note
In 2017, the California Legislature expanded the definition of "spouse" under the Evidence Code to include registered domestic partners—that is, domestic partners registered as required under Fam. C. §297.5. Evid. C. §215.

§9.1. Marital testimonial privilege.

1. Overview. The marital testimonial privilege gives a spouse two privileges: (1) the privilege not to testify against the other spouse in any proceeding and (2) the privilege not to be called as a witness by an adverse party in a proceeding in which the other spouse is a party. Evid. C. §§970, 971. The first privilege is often referred to as the privilege not to testify, and it applies regardless of whether the other spouse is a party to the proceeding. See Evid. C. §970. The second privilege is often referred to as the privilege not to be called as a witness, and it only applies when the other spouse is a party to the proceeding. Evid. C. §971; Jurcoane v. Superior Ct. (2d Dist.2001) 93 Cal.App.4th 886, 894. The public policy behind the marital testimonial privileges is that compelled testimony of one spouse against the other is disruptive to the preservation of marital and family harmony. People v. Barefield (3d Dist.2021) 68 Cal.App.5th 890, 900-01; 2 Witkin, California Evidence (5th ed.), Witnesses §173; see 7 Cal. Law Revision Comm'n Rep. (1965) p. 1172 ("[s]ociety stands to lose more from such disruption than it stands to gain from the testimony which would be available if the privilege did not exist"). Another public policy behind the privilege not to be called as a witness is the avoidance of prejudice to the defendant (i.e., the nonwitness spouse) by forcing the witness spouse to object before the jury. 7 Cal. Law Revision Comm'n Rep. (1965) p. 1172.

2. Elements of marital testimonial privilege.

(1) For privilege not to testify. For the privilege not to testify against one's spouse to apply, the following requirements must be met: (1) the spouse claiming the privilege ("witness spouse") must be asked to testify in a proceeding, (2) the witness spouse must be in a valid marital relationship with the other spouse ("nonwitness spouse") when she is asked to testify, and (3) the testimony sought from the witness spouse must be against the interests of the nonwitness spouse. See Evid. C. §§215, 970.

(a) Spouse requested to testify. The witness spouse must be asked to testify in a proceeding. Evid. C. §970; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1171.

[1] Proceeding defined. A proceeding means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, legislative body, or any other person authorized by law) in which testimony can be compelled to be given. Evid. C. §901.

[2] Not required to be party to proceeding. Unlike the privilege not to be called as a witness, it is not necessary that the nonwitness spouse be an actual party to the proceeding for the privilege not to testify to apply. See Evid. C. §970 (married person has right not to testify against his spouse in "any proceeding").

(b) Spouses in valid marital relationship. There must be a valid marital relationship currently in effect between the witness spouse and the nonwitness spouse when the witness spouse is asked to testify. See Evid. C. §§215, 970; People v. Bradford (1969) 70 Cal.2d 333, 343; People v. Dorsey (2d Dist.1975) 46 Cal.App.3d 706, 716-17. A marital relationship includes spouses in a valid marriage under California law and domestic partners registered under the California Domestic Partner Rights & Responsibilities Act (DPRRA). See Evid. C. §215; Bradford, 70 Cal.2d at 343; see also Fam. C. §297.5(a) (registered domestic partners have same rights, protections, and benefits, and are subject to same responsibilities, obligations, and duties under law, as are granted to and imposed on spouses), §300(a) (defining "marriage"). As long as the validity of the marital relationship has been established at the time of the proposed testimony, the privilege applies even if the continuation of the marital relationship lacks viability. See Barefield, 68 Cal.App.5th at 901; Jurcoane, 93 Cal.App.4th at 889 (privilege applied even though wife had no contact with husband for nearly 20 years after alleged commission of crime). When a marriage is "voidable," the marital testimonial privilege will apply until the judgment setting aside the marriage is final. People v. Livingston (2d Dist.1928) 88 CalApp. 713, 714; 2 Witkin, California Evidence (5th ed.), Witnesses §175. Thus, the testifying spouse may claim a privilege not to be a witness if a final decree of divorce has not been obtained. Barefield, 68 Cal.App.5th at 901.

Note
Even though a marriage may not be recognized as valid under California law (e.g., common-law marriage), as long as the marriage is valid where it took place, it will be recognized as a valid marital relationship in California for purposes of asserting the spousal privileges. People v. Badgett (1995) 10 Cal.4th 330, 363; Knight v. Superior Ct. (3d Dist.2005) 128 Cal.App.4th 14, 19; see Fam. C. §308 (a marriage contracted outside California that would be valid under the laws of the jurisdiction where the marriage was contracted is valid in California). Similarly, domestic partnerships valid under the laws of another state will be recognized as valid marital relationships in California for purposes of asserting the spousal privileges. See Fam. C. §299.2.

(c) Adverse testimony sought. The witness spouse must be asked "to testify against" the nonwitness spouse. Evid. C. §970. This has been interpreted to mean that a witness spouse cannot assert the privilege to avoid giving testimony in favor of the nonwitness spouse. People v. Lucas (1995) 12 Cal.4th 415, 490; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1172; 2 Witkin, California Evidence (5th ed.), Witnesses §180. But once a witness spouse testifies favorably, the witness spouse can no longer assert the privilege not to testify and thus becomes subject to cross-examination on potentially unfavorable matters. Lucas, 12 Cal.4th at 490. Under these circumstances, it may be proper for a witness spouse to invoke the privilege even when initially asked to testify in favor of the nonwitness spouse. See, e.g., id. at 490-91 (court permitted wife to invoke privilege during penalty phase; although wife was going to testify in favor of husband, because she may have been percipient witness on night of crime, she may have had to testify to unfavorable matters on cross-examination).

(2) For privilege not to be called as a witness. For the privilege not to be called as a witness to apply, the following requirements must be met: (1) the spouse claiming the privilege ("witness spouse") must be called as a witness in a proceeding in which the other spouse ("nonwitness spouse") is a party, (2) the witness spouse must be in a valid marital relationship with the nonwitness spouse when she is called as a witness, and (3) the witness spouse must be called as a witness by a party who is adverse...