THE SPOUSAL PRIVILEGE-HOW DOES IT WORK?
Introduction:
A privilege is the right of a party to bar testimony and evidence arising from a communication whether written or verbal. If the proposed evidence is “privileged” it cannot normally be utilized in trial, administrative proceedings or arbitration.
There are numerous such privileges under the law, such as doctor-patient; lawyer-client;clergy-member of the congregation, etc. All have a purpose of protecting a particular relationship so that communication can occur without fear of later revelations in court.
The privilege discussed in this memo relates to the spousal privilege, namely the ability of a spouse to bar testimony or evidence generate in communications between the spouses.
The Basic Law:
There are two privileges that arise from the marital relationship: (1) the adverse testimony privilege; and (2) marital communications privilege.
Federal Rule of Evidence (“FRE”) 501 is the only Federal Rule dealing with privileges. But in Federal cases arising due in Federal Court due to diversity between the States (e.g. more than one state is involved so a Party removes it to Federal Court) the court will apply the privilege law of the state whose substantive law applies.
The Chart below describes both the Federal and California law that applies to spousal privilege.
Adverse testimony privilege relates to the ability to force a spouse to take the stand and testify against the other spouse. Marital communications privilege protects the contents of the protected communications.
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. {C}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. {C}Evid. C. §970, §971
Martital 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
FRE 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.)
Conclusion:
It is vital to note that the privilege can be waived, often by only one of the spouses and often by conduct. For example, if I speak to my wife in a public area a Court could conclude that it was not subject to the privilege since others could and often did hear the statements. Further, if I tell others about that privileged conversation, that privilege may be waived.
Thus, it is vital, if one wants to protect the privilege, to both restrict the communications and to understand precisely to whom the privilege applies thus who can intentionally waive it.