Spousal Privilege: Understanding California Evidence Code 970, 971, and 980
Spousal privilege in California protects married couples from being compelled to testify against each other in legal proceedings. California law recognizes two distinct forms of marital privilege, each serving different protective purposes. The spousal testimony privilege under Evidence Code Sections 970 and 971 allows a spouse to refuse to testify, while the confidential marital communications privilege under Evidence Code Section 980 protects private conversations between spouses. Understanding these protections, their requirements, exceptions, and strategic applications is essential for anyone involved in criminal or civil litigation where marital relationships intersect with legal obligations.
Overview of California's Two Marital Privileges
California law establishes two separate statutory protections for married individuals in legal proceedings. In California, all privileges are statutory, and Evidence Code section 911(a) confirms that no person has a privilege to refuse to be a witness except as otherwise provided by statute. Because privileges prevent the admission of relevant and otherwise admissible evidence, courts narrowly construe these protections while broadly interpreting the exceptions to marital privileges.
Spousal Testimony Privilege Under Evidence Code Sections 970 and 971
Evidence Code section 970 codifies the spousal testimony privilege, providing that a married person has a privilege not to testify against their spouse in any proceeding, except as otherwise provided by statute. This testimonial protection grants a blanket privilege allowing a witness to refuse to testify against their spouse in both civil and criminal proceedings.
Section 971 provides a complementary protection, stating that a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party without the prior express consent of the spouse having the privilege, unless the party calling the spouse does so in good faith without knowledge of the marital relationship. This provision functions not merely as an evidentiary rule but acts as a procedural bar preventing prosecutors from calling a defendant's spouse to the stand.
The testimonial privilege belongs to the witness spouse who may refuse to testify. However, this privilege does not prevent a spouse from testifying if they choose to do so. One spouse cannot prevent the other from providing testimony when the testifying spouse wishes to speak. The privilege applies only to people who are married at the time the testimony would occur, meaning the protection disappears upon divorce.
Marital Communications Privilege Under Evidence Code Section 980
Evidence Code section 980 establishes the confidential marital communications privilege. A spouse has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if they claim the privilege and the communication was made in confidence between them while they were married. This protection extends to guardians or conservators when a spouse has such representation.
The communications privilege applies only to communications intended to be confidential. Communications made in the presence of others are not protected under this privilege. Further, the privilege covers only communications between spouses, not acts or conduct. Acts convey ideas and thoughts to the other spouse but are not considered communications under the statute.
Key Differences Between the Two Privileges
The two marital privileges differ in several fundamental ways. The testimonial privilege belongs to the witness spouse alone and can be asserted only during an existing marriage. In contrast, the confidential communications privilege belongs to both spouses, allowing either to prevent disclosure of protected communications even if one spouse wishes to reveal them.
Duration presents another critical distinction. The spousal testimony privilege terminates upon divorce, permitting former spouses to be compelled to testify about events that occurred during the marriage. By comparison, the marital communications privilege continues after divorce or death, protecting confidential communications made during the marriage indefinitely.
The scope of protection also varies. The testimonial privilege provides broad protection against being compelled to testify at all, while the communications privilege protects only specific confidential communications made during the marriage. Neither privilege applies to fraudulent marriages entered solely to invoke the privilege or to invalid marriages involving bigamy or incest.
Understanding the Spousal Testimony Privilege (Evidence Code Sections 970 and 971)
Who Can Invoke the Testimonial Privilege
The testimonial privilege belongs exclusively to the witness spouse, not the defendant or party spouse. Section 970 permits a spouse to refuse to answer questions requiring testimony about the other spouse, whether or not they are a party to a proceeding, while section 971 only permits a spouse to refuse to answer in proceedings where the other spouse is a party. Specifically, the section 970 privilege belongs only to the spouse called as a witness, and where the other spouse is not a party, that other spouse has no standing to prevent their spouse from voluntarily testifying.
Section 971 creates a different dynamic. This privilege belongs to both spouses, meaning even if spouse B is willing to answer questions about spouse A in pending proceedings involving spouse A, spouse A can assert the privilege to bar the testimony that otherwise might have been obtained. The prosecutor cannot call the spouse to the stand as a witness without consent, preventing the defense attorney from being forced to assert the privilege in front of a jury and create suspicion that the spouse has evidence of a crime.
Requirements for Valid Marital Relationship
The spousal privilege applies only to valid marriages and does not extend to several relationship types. The privilege does not apply to couples who are engaged to be married, and it also does not apply to couples who consider themselves married due to common-law marriage principles. Invalid marriages are excluded from protection, meaning the privilege does not apply if the marriage is invalid because it is bigamous, involves incest, or the couple married solely to secure an immigration benefit or for another fraudulent purpose.
The Privilege Holder's Right to Refuse Testimony
One critical aspect of the marital testimonial privilege in California is that it does not mean a spouse cannot testify. The privilege only means they may refuse to testify if they so choose. If a spouse chooses to testify, then they may do so, and the defendant spouse has no right to prevent the testimony. A spouse who might be in the process of a divorce with the defendant spouse can decide to testify against the defendant spouse, and the defendant spouse cannot seal their lips with this privilege.
When the Privilege Applies Only to Current Spouses
The marital testimonial privilege applies only to people who are married at the time the testimony would occur. Once you get divorced, this spousal privilege disappears. In other words, the marital privilege not to testify applies only to current spouses, not to ex-spouses, fiancés, or common-law spouses. Furthermore, Evidence Code section 972(f) states that the privilege does not apply to a spouse who was not married to the defendant when the crime took place or the marriage was consummated to take advantage of the privilege. The privilege will not apply if the alleged crime occurred before the couple got married, the spouse called as a witness knew about the subject they are being called to testify about before the marriage, and when they got married, the spouse being called as a witness knew that the other spouse had been arrested for or charged with the alleged crime.
The Confidential Marital Communications Privilege (Evidence Code Section 980)
Evidence Code Section 980 provides a distinct protection that survives the end of a marriage. A spouse has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if they claim the privilege and the communication was made in confidence between them while they were married. This protection extends to guardians or conservators when a spouse has such representation.
What Qualifies as a Confidential Communication
Communications under this privilege refer to verbal or written conversations, not actions. The privilege protects you against coercion to reveal any confidential conversations you had with your partner during marriage. However, not all marital conversations receive protection. The privilege only applies to communications that are intended to be confidential.
Public communications or communications made in the presence of a third party are not covered under this code. In People v. Gomez, threats made to a spouse in the presence of others were not intended to be confidential and thus fell outside the privilege's scope. Similarly, in People v. Bogle, a suicide note found in trash by a spouse was not meant to be a confidential communication, as the act of throwing the note away evidenced that the husband did not intend his spouse to see it. Communications made in the presence of, or likely to be overheard by, third parties revoke the privilege.
Protection Extends Beyond Divorce
Unlike the testimonial privilege, the confidential communication privilege extends to divorced couples as long as they were married when the communication occurred. The privilege applies to communications during marriage even after divorce. This enduring protection means that ex-spouses cannot be compelled to disclose confidential marital communications in court proceedings, regardless of how much time has passed since the divorce.
Both Spouses Can Assert This Privilege
The marital communications privilege allows each spouse to prevent the other from disclosing such communications in both civil and criminal proceedings, even if one of the spouses wishes to disclose the information. Evidence Code Section 980 allows the holder of the privilege to prevent the other spouse from disclosing the communication. Either spouse may assert the privilege, providing you the right to forbid your spouse from divulging the contents of your conversations while married, even if they choose to testify.
Acts and Observations vs. Communications
The privilege protects words and acts intended to be communications, but most California courts limit privilege to written or oral communications. Acts convey ideas and thoughts to the other spouse but are not considered communications. In People v. Dorsey and People v. Keller, courts confirmed that the acts of a spouse are not covered by the confidential communications privilege.
After John commits burglary, he calls his wife Debra to tell her about it. Later, she saw him hiding stolen jewelry in their garage. Because of the confidential marital communication privilege, Debra may not testify about anything he told her about the burglary. However, she may testify about the fact that he called her on his cell phone the night of the burglary and she saw him hiding jewelry in the garage. The conduct of a defendant, including drinking, erratic behavior, whether safety checks were performed, or amount of sleep, remains fair game for testimony.
Exceptions and Limitations to Spousal Privilege
California law carves out specific exceptions where spousal privilege cannot be invoked, regardless of marital status. These limitations prevent the privilege from shielding criminal conduct or fraudulent behavior.
Domestic Violence and Crimes Against the Spouse
The spousal testimonial privilege does not apply to California criminal cases where one spouse is charged with any crime against the person or property of the other spouse or a child, parent, relative, or cohabitant of either spouse. Evidence Code § 972(e)(1) removes this protection in domestic violence proceedings, as otherwise one spouse could injure the other and then assert the privilege to prevent the victim spouse from testifying.
Consider a scenario where Tony marries Elaine, who has an 8-year-old son from a previous marriage. One night while Elaine is out, the child falls out the window due to Tony's lack of supervision. After prosecutors charge Tony with child endangerment, they can call Elaine to testify against Tony even if she does not want to, because prosecutors charge Tony with a crime against her child. The exception extends to bigamy prosecutions and child neglect or spousal abandonment cases.
Fraudulent Marriages to Invoke Privilege
The marital privilege will not apply to people who marry solely for the purpose of claiming the privilege. The privilege fails if the alleged crime occurred before the couple got married, the spouse that prosecutors call as a witness knew about the subject they are being called to testify about before the marriage, and when they got married, the spouse being called as a witness knew that the other spouse had been arrested for or charged with the alleged crime.
Communications Made in the Presence of Third Parties
The privilege does not apply if the communication was made in the presence of a third party who could hear the communication, as there would be no reasonable expectation of privacy when another person could hear what was spoken.
Criminal Conspiracy and Planning Exceptions
The confidential marital communications privilege does not apply to any communications that were made to enable or help anyone to commit or plan a crime or fraud. Evidence Code § 981 governs this crime-fraud exception. Police arrest spouses Cecilia and Ricardo for an extortion they were planning. Cecilia wants to come clean, and Ricardo does not have the right to prevent Cecilia from testifying about the conversations they had because they took place to enable the planning of a crime.
When Both Spouses Are on Trial
When both spouses are on trial as co-defendants, one may opt to disclose confidential conversations as testimony in their case. If one spouse chooses to waive their privilege against self-incrimination and chooses to testify, they may not claim the spousal privilege as it relates to that offense.
Practical Applications in Criminal and Civil Cases
Both criminal and civil proceedings present unique challenges when spousal privilege intersects with practical litigation considerations.
Jailhouse Conversations and Reasonable Expectation of Privacy
Jailhouse communications receive limited protection under spousal privilege. In North v. Superior Court, officers secretly tape recorded a conversation between a visiting wife and her inmate husband in a detective's private office under circumstances which strongly indicate that the husband and his wife were lulled into believing that their conversation would be confidential. The court held that under these circumstances, the husband inmate had a reasonable expectation that his conversation was, and would remain, private and confidential.
However, in People v. Hill, a police-monitored and tape-recorded jailhouse conversation between a defendant and his wife took place in a common visiting room over an intercom system. The court held that the record disclosed no evidence that jail officers had created any expectation or belief by the husband inmate that the interspousal communication would be private. Phone calls from jail are recorded and participants are made aware that the calls are being recorded, consequently no one can claim they thought they were having a privileged conversation.
Waiving Spousal Privilege Through Testimony
If you consent to waive the right not to testify, you cannot go back and assert that right after the fact if you have a change of heart. If you choose to testify against a spouse in one instance, you cannot assert your marital privilege in another related instance. Any information divulged in waiving these rights cannot be rendered inadmissible once you have given it. You waive your spousal testimonial privilege in a given court proceeding by choosing to testify against your spouse in that proceeding.
Strategic Considerations for Defendants
Defendants should never discuss case details during jail visitations or phone calls, as these lines are recorded and can be used against them. Spousal privilege will not keep those conversations confidential. Only attorney-client conversations receive protection in these settings.
How Prosecutors Navigate Spousal Privilege
Prosecutors cannot call the spouse of a defendant to the stand as a witness without consent. Once a spouse invokes testimonial privilege, prosecutors can ask that the judge declare the spouse unavailable as a witness and then move to admit non-privileged statements under various hearsay exceptions.
Conclusion
California's two distinct marital privileges offer critical protections but function quite differently. The spousal testimony privilege allows you to refuse testifying against your current spouse, while the confidential communications privilege protects private marital conversations even after divorce. Evidently, understanding which spouse holds each privilege proves essential in legal proceedings.
Given these points, remember that significant exceptions exist for domestic violence cases, fraudulent marriages, and crime-fraud scenarios. Jailhouse conversations receive limited protection, and waiving privilege cannot be reversed. All things considered, both defendants and witnesses benefit from knowing when these privileges apply and when California law strips away these protections to serve justice and public policy interests.
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Yuliya Kelmansky is an Expert Criminal Defense Attorney who has over 10 years of practice defending a variety of criminal cases.
