In California court cases, marital loyalty can sometimes conflict with legal obligations. California Evidence Code § 970 allows a married person to refuse to testify against their spouse in a trial. This privilege allows you to avoid having to give evidence that would harm your spouse’s case. This privilege is different from the confidential communication privilege, which protects private conversations, because it is a privilege against compelled testimony. Its primary function is to maintain marital peace and harmony and to prevent either party from being compelled to testify against the other. The privilege is not absolute, however, and is available only to the spouse who is requested to testify.
Nevertheless, this protection may also be lost due to certain legal exceptions. It is crucial to understand when this privilege is in effect, who can use it, and when it may not be available to anyone who is involved. This guide explains the scope of the marital testimonial privilege, its major exceptions, and how it can affect court cases.
The Core Foundation of the Testimonial Privilege
California law places a high priority on maintaining marital harmony and has established evidentiary barriers to prevent spouses from becoming adversaries in court. The testimonial privilege in section 970 differs from other marital privileges because it applies to the act of testifying as a witness and to the provision of potentially adverse information. Your lawyer will help you review and understand the law to see how it defines the holder of this right and how it will be applied in practice.
Understanding Who is Entitled to the Privilege
There is a difference between the people for whom the privilege is intended and the people who can use it. The privilege is solely with the witness-spouse pursuant to Evidence Code Section 970. If you are asked to testify against your spouse, you will be the one to choose whether or not to testify.
The party-spouse, the person involved in the lawsuit or criminal trial, cannot prevent you from voluntarily testifying if you choose to do so. If you decide to provide evidence against your spouse, the law does not allow them to stop you from taking the stand.
This is in contrast to the confidential communication privilege, where both parties typically hold the right to assert it. In Evidence Code Section 970, the law presumes that if one spouse is willing to testify against the other, the concept of “marital harmony” is already defeated, and the witness-spouse should be permitted to testify if they wish.
The Requirement of a Valid Marriage
Evidence Code Section 970 only applies to those who can establish a legally recognized relationship under California law. This is not a privilege that can be claimed based on a long-term dating relationship, engagement, or even sharing finances and children with someone.
The court will seek to establish the existence of a valid subsisting marriage at the time the testimony is sought. The privilege does not exist if the marriage is void or has been terminated by a legal proceeding before the time you are called to the stand. The most crucial element in this legal determination is time.
Understanding the Difference Between Current Marriages and Former Spouses
The testimonial privilege is a “present-tense” privilege that terminates upon a marriage's termination. Even if you are in the midst of a divorce, and the court has not yet ruled on the final judgment of dissolution, you still have the privilege of not giving evidence against your spouse.
Once the final decree is signed and you are back to being an unmarried person, Section 970 does not provide you with any protection. You may be compelled to testify about activities during the marriage, unless other privileges, such as the confidential communications privilege, cover those activities. The law is based on the protection of the existing bond; if it is legally broken, then the state’s interest in evidence is paramount over your past marriage.
Registered Domestic Partnerships in California
These protections apply to more than just traditional marriage and should be explored in the California Family Code. California’s Family Code 297.5 provides the same rights, protections, and benefits to registered domestic partners as to married spouses.
This includes the testimonial privileges contained in the Evidence Code. As with Section 970, a person in a registered domestic partnership may refuse to testify against their partner as a husband or wife. This will allow the state to acknowledge the variety of contemporary relationships while still applying the same standard to evidentiary exclusions.
The Limitations and Scope of Evidence Code § 970
The privilege does not just apply to the refusal to answer questions on the witness stand. It includes a wider right to refuse to appear at the witness box when there is a hostile party in the case. The use of this application will depend on the type of legal proceeding and the spouse’s role in the proceeding.
The Right Not to be Called as a Witness (EC § 971)
Evidence Code section 971 reinforces section 970 by setting up a barrier before you can even be asked your first question. It declares that the privilege of a married person not to be called as a witness by an adverse party extends to a proceeding in which the spouse is a party. This means that the opposition’s attorney cannot even call you to the stand to compel you to claim the privilege in front of a jury.
This may be considered prejudicial because it could lead the jury to think that you are withholding incriminating evidence. The law does not allow the showing of forcing a spouse to testify against the other spouse, unless the other party is doing so in good faith and is unaware of the marital relationship.
Civil vs. Criminal Application
In both civil and criminal courts, you will discover that section 970 is equally applicable. In a criminal case, the prosecution is not allowed to compel the spouse of a defendant to testify against them on the defendant’s behalf. If the case is civil (for example, a personal injury case or a contract dispute), an opposing attorney cannot force you to testify at trial or take a deposition that will negatively impact your spouse’s case.
The protection is wide, since the policy underlying it is the same, whether the possible punishment is imprisonment or a monetary judgment. It is essential to understand that the privilege applies to any proceeding in which testimony may be compelled, including grand jury and administrative law proceedings.
Understanding When the Privilege of Evidence Code Section 970 Does Not Apply
Although section 970 provides general exceptions, the California Legislature has made specific exceptions that outweigh marital harmony. The exceptions outlined in section 972 ensure that the privilege is not used for injustice in domestic or criminal cases involving the family. These are essential to read to see whether the law covers your case.
Litigation between Spouses (Divorce and Support)
You cannot use section 970 against your spouse during a dispute or court proceeding. The privilege is waived if either spouse is a party to a proceeding against the other spouse. This is usually done at divorce proceedings, child custody hearings, and spousal support hearings. If the parties could refuse to testify against one another, it would be impossible for any court to rule on a divorce.
Thus, where the marriage is the subject of the action, or where the litigants are the husband and wife, the testimonial privilege is lost. You should present evidence and respond to questions about the issues you are raising, because the “harmony” the law is looking for is already at an end by filing the lawsuit.
Crimes Against the Spouse or Children
The privilege does not apply when a family member is in danger. The privilege is expressly excluded in criminal proceedings against a spouse for a crime against the person or property of the other spouse or a child of either spouse by Evidence Code section 972(e). This encompasses domestic violence, assault, battery, and child abuse.
The California legal system has determined that preserving a marriage is not more significant than protecting individuals from physical harm in a marriage. If you are a victim of a crime by your spouse or if your child is a victim, the prosecution may have to call you to testify as to what you saw or experienced.
Juvenile Court Proceedings
When a case enters the juvenile court system, the rules about spousal testimony change drastically. The privilege against self-incrimination does not exist in Juvenile Court proceedings. This exception is available due to the juvenile court’s primary purpose of protecting and serving the best interests of the minor.
In cases of a child’s delinquency or a dependency case where the state is investigating the fitness of the parents, the court needs all of the evidence to make an informed decision about the future of the child. The need for a thorough factual record in these sensitive situations is greater than the witness-spouse’s desire to protect their spouse.
Crimes Committed Before Marriage
It is crucial to understand that, in general, the privilege does not shield evidence of crimes committed before the marriage. The court may determine that the privilege is inapplicable or limited if the spouse charged with the crime committed a crime before the date of the marriage, and the witness spouse knew of the crime.
This is to prevent people from entering into “sham marriages” or “marriages of convenience” just to stop a key witness from a criminal investigation. The law is intended to protect genuine marriages and is generally unlikely to apply section 970 to block evidence that existed before the marriage began.
Waiver of the Privilege and the Risks of Evidence Code § 973
A privilege can be lost just as quickly as it can be claimed. A spouse waives the right to refuse to testify in the following circumstances as described in Evidence Code section 973. This waiver often happens without the spouse fully understanding the legal consequences of voluntarily participating in a proceeding. If you plan to claim the privilege, you should be extremely careful about providing any information.
The Waiver of The Right To Be Present in a Proceeding
The most common type of waiver occurs when a party's spouse chooses to testify in court. Once you take the stand and answer questions from either side, you waive the privilege for the remainder of that proceeding.
You cannot refuse to answer some questions under section 970 while choosing to answer others. Once you begin testifying, the privilege is considered waived for the rest of the proceeding.
This waiver is not limited to the trial but extends to depositions and other pre-trial discovery periods. If you give a sworn deposition, the adverse party may use your deposition against your spouse, and you may not be able to refuse to give any more testimony.
Waiver in a Joint Legal Action
Also, a waiver may be granted if you and your spouse are involved in the same legal proceeding and both of you appear to testify in your own defense. When you testify on your own behalf, you could inadvertently be giving evidence that is against your spouse.
This is considered a voluntary decision to engage in the evidentiary process in accordance with the law. In civil litigation, if you file a lawsuit with your spouse, for instance, a car accident case for damages, you have waived the privilege with respect to any issues that are relevant to that cause of action. You cannot be a plaintiff and then use section 970 to prevent the defense from cross-examining you on the facts of the case.
The Rule Against Selective Use of the Privilege
The waiver rules are intended to stop the selective use of the privilege. The legal system considers it unfair for a witness to give information that supports their spouse and withhold information that will hurt their spouse.
If you choose not to waive the privilege and to testify, you are required to answer all relevant questions on cross-examination. This is one of the most crucial strategic decisions you will make in a California legal proceeding.
The “Entire Proceeding” Rule
The “entire proceeding” rule should also be considered. The waiver in section 973 applies to a specific legal issue, from beginning to end, when you testify in a "proceeding." The privilege cannot be invoked again after testimony has been given at an earlier stage of the same case if the case will require several hearings or a long trial.
This highlights the importance of seeking legal advice before giving any evidence in court. Once you begin testifying, you are likely on a path that cannot be reversed.
Understanding the Risks of Unintentional Waiver
Evidence Code section 970 is complicated, and the consequences of a waiver are significant. It is essential to remember that the law is a powerful weapon, but it is a personal weapon that should be used with care.
Evidence Code sections 970 (testimonial privilege), 980 (confidential communications), and the different exceptions in section 972 form a complex of rules that can bewilder even sophisticated litigants. Understanding these evidentiary limits is crucial for safeguarding your marriage amidst the complexities of California court proceedings.
Pressure can be overwhelming when you receive a subpoena or a deposition request. There may be a conflict of loyalty between what you are legally obliged to do for the court and what you are obliged to do for your spouse.
Evidence Code section 970 was enacted to settle that dispute in your favor if you follow proper legal procedures to protect your rights. You can make an informed choice that helps safeguard your family’s future and your legal rights. This starts by understanding that the privilege is yours to claim. You should also know what makes a marriage legally valid and what exceptions may apply to your situation.
Find a Los Angeles Divorce Attorney Near Me
A simple grasp of the law is not enough to understand California Evidence Code § 970. In a civil or criminal case, protecting your marital rights and dealing with spousal testimony can be a delicate matter that should be handled with legal guidance. If you have been served a subpoena or are afraid that you may be compelled to testify against your spouse, it is crucial to understand your rights. It is also essential to understand what exceptions may exist. Skilled legal assistance can help you ensure that you do not make any errors that might result in a waiver of your privileges. It also ensures that your marital privacy is maintained throughout the legal proceedings. Understanding California’s evidentiary rules and court procedures can help you make informed decisions. It can also help protect your interests with the right legal team.
At the Los Angeles Divorce Lawyer, our divorce attorneys will help you understand your rights and guide you through situations involving spousal testimony and legal privileges. We are committed to helping you make informed decisions under California law. Contact us today at 310-695-5212 to schedule a consultation.
