There are two different marital privileges, and each has different holders, duration, and criminal-case exceptions. A currently married witness may have a privilege not to testify against a spouse or to be called by an adverse party without prior express consent. Separately, a qualifying confidential communication made during marriage may remain protected even after the marriage ends. The charge, alleged victim, witness’s current relationship, and whether the question concerns an observed fact or a confidential communication all matter. A subpoena should be addressed with counsel and the court; do not ignore it. (Evidence Code § 970 and § 971; § 980)
The privilege about testifying
Sections 970 and 971 concern a witness who is married to a party: section 970 generally protects against testifying against the spouse, and section 971 addresses being called by an adverse party without prior express consent. The latter rule has an exception when the party calls the witness in good faith without knowing of the marriage. These are testimony privileges tied to the current marriage. But section 972 removes them in specified proceedings. Its criminal exceptions include charges for an offense against the person or property of the other spouse, or a child, parent, relative, or cohabitant of either spouse, and certain third-person offenses committed in the course of an offense against the spouse. Section 972(f) also covers a pre-marriage crime and knowledge acquired before marriage when the witness spouse knew of an arrest or formal charge before marrying. Do not assume a spouse can refuse testimony in every case. (Evidence Code §§ 970, 971, 972)
If a spouse voluntarily testifies in a proceeding, section 973 addresses the effect on the privilege for that proceeding. Counsel should review the exact charge and victim relationship, and whether the witness was called by the prosecution or is choosing to testify, before asserting a privilege. (Evidence Code § 973)
The privilege for confidential communications
Section 980 protects a communication made in confidence between spouses while married; its scope is not every fact one spouse observed. It can survive the end of the relationship, and section 912(b) says one spouse’s waiver does not automatically waive the other spouse’s privilege. The privilege has its own exceptions: section 985’s criminal-case list includes an offense against the other spouse or a child of either spouse, and specified related third-person crimes. That list is not the broader section 972 test, so do not transfer one exception list to the other. Section 981 separately excludes communications made to enable or aid a crime or fraud. Section 987 also addresses a case in which the defendant spouse offers the communication in that spouse’s own behalf. (Evidence Code § 980, § 985, § 981, § 987, and § 912)
Before responding to a subpoena, preserve it and identify the current or former marriage dates, charge, alleged victim, and exact question or communication at issue. A court can decide whether a privilege applies; the spouse does not decide by simply refusing to appear. For a California criminal-witness question, contact the Law Offices of David S. Chesley at (800) 755-5174.