A privilege is the right of a party to bar testimony and evidence arising from a particular communication whether written or verbal. If the proposed evidence is “privileged” it cannot be used in trial or arbitration either directly or indirectly.
There are numerous privileges under the law, such as specified communications between a doctor-patient; lawyer-client; clergy-member of the congregation, etc. The privilege discussed in this article relates to the spousal privilege, namely the ability of a spouse to bar testimony or evidence generated in communications between the spouses. This article will review the California and Federal law. The reader should first review our article on American Litigation.
The Basic Law:
There are two privileges that arise from the marital relationship: (1) the adverse testimony privilege; and (2) marital communications privilege. In the Federal Courts, the Federal Rule of Evidence Section 501 is the only Federal Rule dealing with privileges. But in in civil diversity cases, the court will apply the privilege law of the state whose substantive law applies.
Spousal immunity refers to the right of a spouse not to testify against the other spouse and belongs to the spouse called upon to testify. Marital communication privilege belongs to either spouse and bars specified communications between spouses.
Adverse Testimony Privilege (“Spousal Immunity”)
FEDERAL LAW
1. Protects the witness spouse from having to testify against the party spouse
2. Witness-spouse holds the privilege
3. Witness-spouse can waive the privilege
4. Criminal cases only
5. Trammel v. U.S.
CALIFORNIA LAW
1. Protects the witness spouse from having to testify against the party spouse
2. Witness-spouse holds the privilege
3. Witness-spouse can waive the privilege
4. Criminal and civil cases
5. Privilege exists whether or not the witness-spouse is a party
6. Privilege terminates with divorce, but protects matters that occurred before/during the marriage
7. Evid. C. §970, §971
Marital Communications Privilege
FEDERAL LAW
1. Either spouse may assert the privilege
2. Protects words and acts intended to be communications. Example: Privilege protects Wife from disclosing Husband’s confession to her. Privilege does not protect if W saw H shoot John Doe, or saw blood on H’s hands after H was said to have shot John Doe.
3. Requires valid marriage. Parties must be married at time of communication.
4. Applies only to confidential communications. Privilege revoked if communications made in the presence of, or likely to be overheard by, 3rd parties.
5. Privilege applies to communications during marriage even after divorce.
CALIFORNIA LAW
1. Either spouse may assert the privilege
2. Protects words and acts intended to be communications, but most California courts limit privilege to written or oral communications. (People v. Bradford)
3. Requires valid marriage. Parties must be married at time of communication.
4. Applies only to confidential communications. Privilege revoked if communications made in the presence of, or likely to be overheard by, 3rd parties.
5. Privilege applies to communications during marriage even after divorce.
6. Evid. C. §980
And, for reference, the Federal Rule of Evidence 501 in its entirety:
ARTICLE V. PRIVILEGES
Rule 501. Privilege in General
The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
(As amended Apr. 26, 2011, eff. Dec. 1, 2011.)
DISCUSSION:
The concept behind the privilege is to protect the intimacy and privacy of the marriage bond. It is to allow the couple to communicate freely without fear that one or the other will be forced to testify in court as to what was said.
That same underlying approach is why other critical communications are protected by privilege…the clergy privilege, the doctor-patient and lawyer-client privilege all exist to protect vital communications that must be kept open without fear of later repercussions.
But it is important to note that the privilege is voided if the communication is not in a privileged setting. If you are in an elevator and overheard discussing a matter with your wife or lawyer, the person overhearing it can testify and your communication in a public or semi public space voids the privilege.
Further, some of the privilege has been nullified for public safety. For example, if you tell your lawyer you are about to commit a dangerous crime, he or she is required to report same to the police to protect the public. (Note that if you told your lawyer you had already committed the crime, he or she would not be allowed to communicate that fact to a third party, assuming it was stated in a privileged setting.)
Privilege varies from state to state and your local law should be reviewed with competent counsel.