The Spousal Testimonial Privilege
Spouses have the privilege of refusing to testify against each other in most court proceedings. Courts have established this rule to protect the institution of marriage by promoting marital harmony, reasoning that society would have more to lose than gain from disrupting the marital relationship this way.
Historically, a married person could assert the spousal testimonial privilege to prevent their spouse from testifying against them in court. Today, only the spouse called to testify can exercise the privilege. As a result, a spouse may choose to testify against their spouse, who cannot interfere with their decision to do so.
The spousal testimonial privilege arises by virtue of the existing marital relationship between spouses. Therefore, a divorcee may not refuse to testify against their former spouse, citing the spousal testimonial privilege. In California, the spousal testimonial privilege is explicitly recognized under California Evidence Code § 970.
This privilege should not be mistaken for the “marital communications privilege,” which allows a spouse to bar evidence of confidential marital communications from being admitted in court. Although the marital communications privilege arises from the marital relationship, it does not terminate upon divorce.
Exceptions to the Marital Evidentiary Privilege
In California, the spousal testimonial privilege does not apply to all cases. Under the California Evidence Code § 972, the spousal testimonial privilege may not be used to bar testimony from a spouse in either civil or criminal cases.
The spousal testimonial privilege does not apply to the following legal actions:
- A lawsuit with the spouses as named parties
- Legal proceedings to control the other spouse’s property due to incapacity
- A legal action to determine the other spouse’s competence
- Cases involving questions of child support
- Proceedings between former spouses
- Lawsuits concerning the financial support of a premarital child from a previous relationship
Furthermore, the spousal testimonial privilege does not apply to these criminal proceedings:
- Crimes against a spouse or their property and relatives
- Crimes against a third person during the commission of a crime against a spouse
- Failure to provide for a child
- Non-support of a spouse
Importantly, these exceptions apply to offenses that were allegedly committed before or during the marriage.
California’s rules of evidence are consistent with federal rules and laws governing evidence in federal cases. These exceptions are related to the purpose behind the spousal marital privilege—the promotion of “marital harmony.” Courts have reasoned these the purpose behind the privilege does not likely imply in such cases because they imply that marital harmony has already been disrupted and there is no reason to protect it at the expense of finding justice for those crimes and civil matters.
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