The Marital Privilege

Can I Tell My Spouse Everything? Is It Safe To Speak With My Spouse? Can My Spouse Be Forced To Testify Against Me? Can I Prevent My Spouse From Testifying Against Me?

The Marital Privilege, codified in CA Evidence Code §980, in its simplest form, prevents any person and/or entity from forcing one spouse to testify against the other spouse. This long standing privilege is based on the public policy that the institution of marriage is one of the cornerstones of a successful civil society. As a highly functioning civil society, so the theory goes, we want to create an environment conducive to strong, long lasting, trustworthy marriages. Granting a married couple the peace of mind that any communications conducted between the spouses will remain private, serves as the legal cornerstone for the idea that a strong marriage is based on trust and that spouses should be able to confide in one another yet rest assured that such communications will always remain private. Sounds like a simple enough concept right? But wait, before you run to your spouse and open that Pandora Box of secrets you have been keeping for the last 10 years, as is the case in most areas of the law, the devil is definitely in the details and the Marital Privilege is no exception to the rule.

First and foremost, we need to separate between two different scenarios that are covered by the Marital Privilege.
1. Can one spouse be forced to testify against another spouse even if the testifying spouse does not wish to testify? The short answer is… in most situations, NO. However, in a handful of situations, YES. (keep reading for the detailed and complete answer).
2. In a situation where one spouse wants to testify against the other spouse, can the non-testifying spouse prevent the testifying spouse from testifying? The short answer is… depends on the situation (keep reading for the detailed and complete answer).

The key element to understanding the Marital Privilege lies in the form of the communication that is at issue. If the communication is considered a CONFIDENTIAL COMMUNICATION, then no one can force one spouse to testify against the other spouse. Furthermore, if the communication is considered confidential, then one spouse can prevent the other spouse from testifying against him/her, even if the testifying spouse willingly wishes to testify against the non-testifying spouse. As such, the CONFIDENTIAL COMMUNICATION is absolutely the most protected form of communication between spouses and rarely can be revealed in a court of law, unless both spouses agree to the waiver of the privilege.

The next logical question is: what constitutes a CONFIDENTIAL COMMUNICATION? The answer to this question is fluid and extremely complicated to be explained in the limited space available in this blog. However, some key factors are: was the communication uttered in a public or private environment. Two examples of the extreme ends of the spectrum in this situation would be:
1. A husband and wife are lying in bed, the husband is visibly upset, the wife keeps asking her husband what is wrong, he keeps telling her that he can’t tell her… finally the husband turns to the wife and tell her that he just robbed a bank. This type of communication is clearly a confidential communication and even if the wife wanted to testify against her husband, her husband could prevent her from doing so.
2. Same situation but instead of being in their private bedroom, the couple is in a busy restaurant and the husband yells out to his wife “I just robbed a bank.” Clearly, there is no reasonable expectation to privacy in this situation and the communication would not be privileged. In this scenario, the husband could not prevent the wife from testifying, because the communication was not confidential, but the wife could choose not to testify because no one can force a spouse to testify against the other spouse if the content of such testimony would amount to ADVERSE SPOUSAL TESTIMONY, or stated differently: no one can force one spouse to testify against the other spouse if the testimony sought will be “bad” for the non-testifying spouse. The public policy behind this rule is that we do not want to force one spouse to testify adversely against the other spouse and at the conclusion of the testimony send the two home on their way to continue their strong and loving marriage. You can only imagine the horrible situation the wife in our scenario would be facing if at 10 a.m. she was forced to testify that her husband admitted to her that he robbed a bank and at 10 p.m. she would have to lay in the same bed with him to try to get a good night’s rest for the next day of her husband’s trial. Once again, public policy is to create an environment conducive to a strong and faithful marriage. Forcing one spouse to adversely testify against the other is clearly not conducive to a stable marriage environment.

Some exceptions to this rule are cases of domestic violence where the entire privilege is essentially waived (the theory is that if the privilege applied, then one spouse would be able to not only beat the other spouse, but then prevent the victimized spouse from testifying in court relative to the beating).

In conclusion, the Marital Privilege can be understood in its simplest form as follows:
1. The privilege against Adverse Spousal Testimony only belongs to the testifying spouse and that spouse can choose whether or not to testify.
2. The privilege against Confidential Marital Communications belongs to both spouses and as long as the communication in question is considered confidential, neither spouse can testify against the other, even if the testifying spouse wishes to testify against the other spouse.

So tonight when you are lying next to your spouse one, feel free to tell them anything your little heart desires, knowing full well that your confessions are safely protected by our long standing Marital Privilege. But make sure that no one else can hear you, that you do not beat up your spouse while you utter your dirty little secrets and for G-d sakes make sure that the person lying next to you is indeed your legal spouse.


Raviv Netzah, Esq.
(818) 995-4200