Civil Litigation Criminal Law Legal Topics

Standing by Your (Wo)Man

It’s one of those legal concepts that is imbedded in popular culture: the privilege not to testify against one’s spouse. Let’s go a bit deeper than the privilege’s depiction in movies and TV and consider the scope and limitations on the marital privilege under California law.

First off, the marital privilege is mostly raised in criminal cases, but it also applies in a civil context. As the statute states, a married person has a privilege not to testify against his or her spouse “in any proceeding,” except as otherwise provided by statute. Evid C §970.

Not only does a married person have the privilege to refuse to testify against his or her spouse, but a married person whose spouse is a party to a proceeding has a privilege not to even be called as a witness by an adverse party (unless the party calling the spouse does so in good faith without knowledge of the marital relationship). Evid C §971.

It may seem obvious, but the marital privilege applies only as long as the couple is actually married. It doesn’t matter if the marriage is falling apart or if the spouses haven’t seen each other for decades; if they are legally married, one spouse may assert the privilege not to be called as a witness against the other. See Jurcoane v Superior Court (2001) 93 CA4th 886, 113 CR2d 483. But once there’s a final divorce decree, the privilege doesn’t apply, even if the alleged events occurred during the marriage. People v Dorsey (1975) 46 CA3d 706, 716, 120 CR 508.

As with most things, there are limits to the marital privilege. For example, it doesn’t apply in when (Evid C §972)

  • one spouse is suing the other,
  • there’s a proceeding to commit or place a spouse under another’s control due to a mental or physical condition or to determine competence, or
  • there’s a criminal proceeding against one spouse for abuse of the other spouse.

There’s a very tricky area in California marital privilege law related to the exception for civil proceedings brought or defended by a married person for the immediate benefit of the spouse or the couple. Evid C §973(b). The courts are split on how the “immediate benefit” language is to be interpreted in connection with community property laws, when damages recovered by one spouse become the community property of both spouses:

  • In Duggan v Superior Court (1981) 127 CA3d 267, 270, 179 CR 410, the court held that the spouse’s potential future interest in the property wasn’t an “immediate benefit” because the spouse lacked a present, immediate, or direct interest in property at issue.
  • In Hand v Superior Court (1982) 134 CA3d 436, 442, 184 CR 588, the court held that, if the marriage is intact, any unliquidated claims for community property personal injury damages are for the noninjured spouse’s “immediate benefit.”

Duggan makes the better argument. If community property were a factor, the exception in Evid C §973(b) would destroy the marital-spousal privilege in virtually every civil case when damages are claimed because virtually every civil damage claim would arguably be for the immediate benefit of the spouse. This surely was not the legislature’s intent in enacting §973(b).

For more on the marital privilege, as well as other privileges and protections, turn to CEB’s California Civil Discovery Practice, chap 3.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 replies on “Standing by Your (Wo)Man”

This article should have also covered the maritial confidential communication privilege. This is separate and distinct from the “no-testimony-against-a-current-spouse” privilege.

A person has a right to prevent his/her spouse or former spouse from testifying as to what the person said to the spouse during the marriage. This is true for any communication between the spouses during the marriage, even if the spouses aren’t actually “spouses” anymore (i.e., no longer married). The rule is to further the public policy of promoting open and honest communication between spouses.

Great point, Miles. I was thinking to include information on marital confidential communications, but felt it made the blog post a bit long and confusing. Maybe it will be the topic of another blog post. Thanks for reading so carefully

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