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Many people facing criminal prosecution wonder whether their spouse can choose or be forced to testify against them. If you find yourself in this situation, you should understand how spousal privilege (also called marital privilege) works in California.
What is Spousal Privilege?
Spousal privilege, outlined in California Evidence Code §970, 971, and 980, refers to the right of a married person to refuse to testify against their spouse or to prevent their spouse from testifying regarding communications made in confidence to their spouse during their marriage.
Does Spousal Privilege Always Apply?
The California Evidence Code lists situations under which spousal privilege does not apply. These circumstances include:
- Communications made, in whole or in part, to enable or aid anyone in committing or planning to commit a crime or fraud
- Legal proceedings to commit a spouse or to place the spouse’s person or property under another’s control due to the spouse’s alleged mental or physical condition
- Legal proceedings brought by or on behalf of a spouse to establish their competence
- Any proceeding initiated by or on behalf of one spouse against the other spouse
- Any proceeding between a surviving spouse and a person claiming an inheritance from the deceased spouse
- Prosecution for crimes committed by one spouse against the person or property of the other spouse or child of either spouse
- Prosecution for offenses committed by a spouse against a third party while committing a crime against the other spouse
- Bigamy
- Child/spousal neglect
- Any proceeding under the Juvenile Court Law
- Any criminal proceeding against a spouse in which the communication is offered into evidence by the spouse
You should also know marital privilege only extends to people who were married when the alleged event occurred. If the marriage was invalid or you get divorced, a spousal privilege no longer applies.
Can the Prosecutor Force a Spouse to Testify?
Under §970 of the California Evidence Code, anyone generally may refuse to testify against their current spouse in any proceeding. An adverse party in a legal proceeding against one spouse cannot call the other spouse without their spouse’s express consent unless the party calling the spouse did not know of the marital relationship. However, several exceptions to this privilege exist, such as:
- Any proceeding to establish a spouse’s competence
- Any proceeding under the Juvenile Court Law
- Any criminal prosecution in which one spouse is charged with a crime against the person or property of the other spouse or against a child, parent, relative, or cohabitant of either spouse
- Prosecution for crimes committed against a third party while committing a crime against the person or property of the other spouse
- Bigamy
- Child/spousal neglect
- Any criminal prosecution for a crime occurring before the spouses’ marriage, if the testimony concerns knowledge acquired before the marriage and the testifying spouse knew their spouse had been arrested for or charged with the crime
What if Your Spouse Wants to Testify?
You cannot bar your spouse from testifying against you if they wish. Marital privilege does not prevent someone from testifying against their spouse — it merely protects them from being forced to.
However, there is one exception. Under §980, a spouse can prevent the other spouse from testifying against them about communications made in confidence.
Consult With a Domestic Violence Defense Lawyer for More Information
California courts take domestic violence charges seriously. If your spouse or domestic partner has accused you of abuse, contact a Domestic Violence Defense Lawyer in Los Angeles at the Law Offices of Justin E. Sterling today for help developing a strong criminal defense. The first consultation is free.
