Evidence Code § 970 EC sets forth the marital privilege in California evidence law. Also called “spousal privilege”, the marital privilege allows spouses not to testify against one another in court or other legal proceedings.
But the marital privilege cannot stop spouses from testifying against each other if they choose to do so.
The full text of the statute reads as follows:
970. Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.
Legal Analysis
California Evidence Code 970 EC gives married spouses the option of not testifying against each other in any legal proceeding, such as
- trials,
- depositions, or
- other court hearings.
Therefore if a husband witnesses his wife committing a crime, the husband could not be forced to take the witness stand against her during her criminal trial. Though if the husband wants to take the witness stand, his wife cannot stop him from waiving the marital privilege.1
Example: Sam is being prosecuted for insider trading. Sam’s wife Sally overheard Sam talking with co-defendants about the insider information. If Sally is subpoenaed, she can choose not to testify against Sam based on the spousal testimonial privilege. Though if she wishes to testify against Sam, he cannot stop her from doing so.
Note that the marital privilege does not extend to criminal cases when one of the spouses is accused of either:
- Child neglect or spousal abandonment,
- Bigamy,
- A crime against the person or property of the other spouse or a child, parent, relative, or cohabitant of either spouse, or
- A crime against the person or property of a third person that was committed in the course of a crime against the person or property of the other spouse.2
California Evidence Code 970 allows spouses not to testify against each other in court proceedings.
Does the marital privilege apply to non-married couples?
No. The marital privilege extends only to couples who are spouses at the time the legal proceeding occurs. The marital privilege does not extend to:
- divorced spouses,
- engaged couples,
- domestic partners who have not married,
- couples in bigamous marriages,
- couples in incestuous marriages, or
- couples who married just to claim the marital privilege3
Can a spouse get into legal trouble for claiming the marital privilege?
No. However, spouses who claim the marital privilege must be careful not to lie about their spouse on the witness stand. Lying is not protected by the marital privilege, and the lying spouse can be prosecuted for felony perjury.4
What is the confidential marital communications privilege?
The confidential marital communications privilege prevents one spouse from testifying about information the other spouse shared in confidence while they were married. Even if the spouse would like to testify about the confidential communications, the other spouse can stop them from doing so.5
Further Reading:
Learn more about California evidentiary privileges. Also see our article, Does marital privilege stop my spouse from testifying against me?
Legal References
- California Evidence Code 970 EC – Privilege not to testify against spouse. See also Evidence Code 971 EC.
- Evidence Code 972 EC.
- People v. Dorsey (1975) 46 Cal.App.3d 706. Lutwak v. United States (1953) 344 U.S. 604. Evidence Code 972 EC.
- Penal Code 118 PC.
- Evidence Code 980 EC.