Legal Question in Criminal Law in California

Re: spousal privelege for ex spouses

Marriage gives rise to two different privileges which people (including attorneys) often confuse. One reason for this confusion is that they often both apply to the same testimony.

The first of these is the spousal privilege, which prevents the prosecution in a criminal case from forcing a witness to testify against his or her spouse. The privilege applies even if the spouse is not a defendant in that particular case. This privilege is only available to people who are legally married and only applies to criminal cases. If the marriage comes to an end, so does the privilege. Note that this privilege belongs to the witness and not to the spouse whose interests are at stake; if you are on trial and your wife decides she wants to testify against you, this privilege will not stop her from doing so.

The second privilege is the marital privilege, which protects confidential communication between spouses. It applies only to communications which occur during a valid marriage, but it remains in effect after a marriage ends. The privilege belongs to the party and not the spouse. Thus, if your ex-wife wants to testify that during your marriage you told her you had committed a crime, you can prevent her from doing so. However, you can't prevent her from testifying about something you said before or after the marriage, or about anything non-confidential that you told her while you were married.

So, if a married man is the defendant in a criminal trial and his wife wants to testify that she saw him commit the crime, she can do so. The spousal privilege does not prevent her from testifying because here it belongs to the wife and she wants to testify. The marital privilege also does not apply because her testimony is about what she saw and not about communication with her husband.

If a divorced woman is called as a witness against her ex-husband in a criminal trial, she can be forced to testify about anything except confidential communications during the marriage. It is the defendant's responsibility to assert this privilege; if the prosecutor asks her about conversations the two of you had and the defendant fails to object, the evidence will come in.