Personal Injury, Probate, Employment, & Complex Litigation


Marital Privileges

Most people know about the patient-physician privilege and the attorney-client privilege—although, that doesn’t necessarily mean they know how to operate. In general terms, the things you say to your doctor/lawyer stay between you and your doctor/lawyer (there are many caveats to this rule of them, but this post is not about them). However, what most people don’t know are the two spousal privileges that exist. They are codified in Evidence Code sections 970 and 980. Evidence Code section 970 is the marital privilege, and Evidence Code section 980 is the spousal communications privilege.

While these two sound identical to each other, they are not. The marital privilege is the concept that as long as you are married, you cannot be called as a witness against your spouse. There are a few facets to this. The first, and the most obvious, is that it only applies to your current spouse. So, if someone was exaggerating their injuries they sustained in a car accident, and their ex-spouse knew about it, the ex-spouse can be forced to testify, regardless of the fact that they were married at the time of the subject accident. The second facet is less obvious: only the testifying spouse can exercise this privilege. This means, that if your current spouse hates you and wants to tell the world about how you have exaggerated your injuries, there is nothing you can do to stop them from doing so, unless what they are testifying about falls under Evidence Code section 980.

The spousal communication privilege (Evidence Code section 980) is the concept that any confidential statement made to your spouse is privileged. Easy enough, but how does this play out? Well, let’s use the above fact pattern as an example. You tell your spouse that you are exaggerating your injuries, six months later you are divorced and the defendant wants to use your ex-spouse’s testimony to sink your case. While you cannot prevent your ex-spouse from testifying against you generally, you can assert the spousal communications privilege to prevent your ex-spouse from testifying about any statements you made to them about exaggerating your injuries.

The reason for this is because unlike the marital privilege, the spousal communication privilege goes both ways, and the “privilege against disclosure of privileged communications is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to confidential communications without his or her consent and the consent of the other spouse.” (People v. Dorsey (1975) 46 Cal.App.3d 706, 717.).

However, keep in mind, even if you are currently married, this privilege does not apply to confidential communications you had with your spouse prior to your marriage. So, if at the time of you telling your current spouse that you are exaggerating your injuries, neither of you can assert the spousal communication privilege on those communications. However, that does not mean that your spouse can exercise the marital privilege and prevent themselves from having to testify against you.

As you can see these two privileges work intimately with one another and their application can be messy. If you are worried about something that a former or current spouse might say about you in court, you will want to contact an attorney immediately to minimize the damage done.