California law provides crucial protections for criminal defendants regarding their spouses and, in certain cases, ex-spouses.
Found in sections 970, 971, and 980 of the California Evidence Code, the marital or spousal privilege allows individuals the right to avoid testifying against their spouse in a criminal trial or revealing confidential communications made during their marriage.
The marital/spousal privilege is a powerful legal right that provides a shield of protection. It allows you to refuse to testify against your spouse in a criminal trial after they are charged with a crime, ensuring your security and peace of mind.
Additionally, when you're accused of a crime, you have the legal right to refuse to disclose any confidential communications with your spouse, and to prevent your spouse from revealing such communications.
This spousal privilege serves as a vital evidentiary safeguard because many criminal defendants have spouses or ex-spouses who could invoke this rule.
Spouses often play a key role as sources of information about their partner's criminal activities. They are frequently the main focus of police investigations into crimes allegedly committed by their spouses.
Three Distinct Rules
Marital/spousal privilege consists of three key rules: the testimonial privilege outlined in Evidence Code sections 970 and 971, EC, and the confidential communications privilege defined in Evidence Code section 980, EC.
The testimonial privilege shields an individual from being compelled to testify against their spouse during a trial.
The confidential communications privilege is quite extensive, safeguarding any private discussions between spouses during marriage or, in certain cases, after it has ended.
Like most evidentiary rights, there are some exceptions to these protections. Our Los Angeles criminal defense attorneys will examine both the scope and the limitations in more detail below.
Spousal Testimonial Privilege - EC 970 & 971
In simple terms, these laws prevent spouses from being compelled to testify against each other in court. This means that if you are on trial for a crime, the prosecution cannot subpoena your spouse to testify against you, regardless of what they know about the alleged offense.
This privilege is limited to currently valid marriages. In other words, it does not extend to:
- Divorced couples or ex-spouses may be required to testify.
- Common-law couples, i.e., domestic partners who live as husband and wife but have not officially married;
- Couples who are engaged to marry;
- Invalid marriages (such as bigamy, incest, and marriages committed for immigration fraud).
Readers should understand that in California, the marital testimonial privilege doesn't mean your spouse can't testify against you; it means they have the right to refuse if they choose.
However, if your spouse chooses to testify against you in a criminal case, you cannot stop them. It's important to note that the decision to invoke or waive the privilege is solely the spouse's, and the defendant cannot force the spouse to invoke the privilege.
Readers should also note that marital testimonial privilege applies only to married individuals at the time of testimony. If you divorce, this spousal benefit ends. Therefore, the marriage privilege not to testify against a spouse only extends to current spouses, not former spouses, fiancés, or cohabiting partners.
What Are the Exceptions to the Marital Privilege?
It's important to be aware of the exceptions to the testimonial privilege. Under California law, the privilege does not apply in certain situations. Understanding these exceptions will make you feel knowledgeable and prepared in your legal rights. Let's review the exceptions below:
- The spouse opts to testify: Marital/spousal privilege does not make a spouse's testimony inadmissible, only that it cannot be compelled. If your spouse chooses to testify against you, they are free to do so.
- You married specifically to invoke the privilege: That means if the alleged crime happened before you married, and your spouse knew about it and would testify, the marital privilege does not apply.
- The crime involves your spouse or their family: Marital/spousal privilege does not cover offenses directly targeting the spouse, their children, or other relatives. Additionally, it does not apply to crimes against third parties that occur alongside crimes against the spouse.
- Bigamy: If the defendant faces charges of bigamy, spouses might be required to testify regardless of their willingness.
- Abandonment: Crimes involving child neglect or spousal abandonment do not allow the privilege to refuse to testify if the defendant has been charged with a serious domestic violence-related crime.
Confidential Marital Communications Privilege - EC 980
The confidential communications privilege is a robust protection that covers any personal communications between spouses made during marriage. Its extensive nature provides reassurance and confidence in the privacy of your marital conversations.
There is no specific time restriction on when the communication occurred; as long as it was between two spouses who were married at that time, it remains confidential and legally protected, akin to attorney-client privilege.
This privilege, which complements testimonial privilege and offers important extra protection for defendants, differs from testimonial privilege in two main ways:
- It is not limited to current marital relationships: The confidential communication privilege applies to divorced couples, provided they were married at the time of the communication.
- The privilege extends to both spouses: With testimonial privilege, your spouse can waive their right to testify against you. However, with confidential communications, you have the right to prevent your spouse from revealing the contents of your conversations while married-even if they decide to testify.
The privilege for confidential marital communications only covers issues spouses shared during their marriage. EC 980 does not extend to communications made before marriage or after divorce.
Exceptions to Marital Communications Privilege
Confidential marital communications are generally protected, but there are two main exceptions where this protection does not apply.
- Communications related to helping plan or commit a crime or fraud. For instance, if two spouses work together to commit a crime, their conversations about it are not protected from disclosure. However, if they are still married, the testimonial privilege still applies: one cannot be forced to testify against the other.
- When both spouses are on trial, one may opt to disclose confidential conversations as testimony in their case.
Forfeiting or Waiving Spousal Privilege
It's important to understand that you can unintentionally waive your marital or spousal privilege through your actions or words.
If you choose to waive your right not to testify, such as when agreeing to a plea deal or for other reasons, you cannot later reclaim that right if you have a change of heart. This means that any information you share while waiving these rights cannot be made inadmissible afterward, and it can be used against you or your spouse in future legal proceedings.
If you testify against a spouse in one case, you cannot claim marital privilege in a related case. Any information you share while waiving these rights cannot be made inadmissible afterward.
For more information about marital/spousal privilege in California and its application in criminal charges and trials, please contact our law firm to discuss your case and explore available legal options.
Cron, Israels & Stark is a leading criminal defense law firm based in Los Angeles County, serving clients across Southern California. Contact our California criminal defense attorneys for an initial case review by calling us or completing the contact form to submit your information.
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