Evidence Legal Topics

Is there Any Marital Privilege Left After Divorce?

As Joseph DeAngelo (the “East Area Rapist”) may soon find out, a divorced spouse can spill a lot of beans. He was separated from his wife for years, but she’s just made divorce official and that’s a boon for the prosecution in his upcoming trial. But is she still limited in what she can say?

There are two marital privileges:

  1. the privilege not to testify against a spouse and not be called as a witness when the spouse is a party; and
  2. the privilege for confidential marital communications.

Neither of these privileges applies in a proceeding brought by or on behalf of one spouse against the other spouse, i.e., a marital dissolution action. Evid C §§972, 984.

The first privilege explicitly applies only during the marriage (Evid C §970):

…a married person has a privilege not to testify against his [or her] spouse in any proceeding.

After divorce, the privilege not to testify goes away.

But the other privilege survives divorce: Under the marital privilege for nondisclosure of interspousal marital communications (Evid C §980),

a spouse…, whether or not a party, has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses.

This privilege applies to almost all communications between spouses as long as the communications were meant to be confidential. See People v Bogle (1995) 41 CA4th 770.

Interestingly, this privilege remains even if the disclosure was accidental or unauthorized. An eavesdropper may not testify and disclose an overheard communication if a spouse claims the privilege. Similarly, a third person who, without permission, opens a letter from one spouse to the other can’t testify to its contents if the marital communication privilege is claimed.

The important element for the privilege is that the spouses intend the communication to be confidential, as shown by the circumstances in which it is made. See, e.g., People v Bryant (2014) 60 C4th 335, 419.

For the East Area Rapist trial, this means that his former wife can’t testify as to their confidential communications, but she can be required to testify about her observations during the marriage. And she was well aware of the difference divorce would make, as she’s a California lawyer.

For everything you need to know about marital privileges, turn to CEB’s Jefferson’s California Evidence Benchbook, chap 38 and California Trial Objections, chaps 40-42.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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