Does My Spouse Have to Testify?
There are two distinct evidentiary privileges in California for married couples. They are testimonial privilege (California Evidence Code 971) and confidential communication privilege (California Evidence Code 980). This is a complicated area of the law, and if you need assistance because a spouse is seeking a restraining order against you, call Berenji & Associates today for a case evaluation.
These privileges preclude a spouse from being called to testify their spouse, and prevent the disclosure of confidential spousal communications. While these privileges seem broad, there are important exceptions one must consider before attempting to invoke these privileges.
Cal Evid. Code 971 states:
Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.
In simple terms, this rule precludes a party to litigation from calling the spouse of the opposing party to testify against the spouse. With that said, California Evidence Code 972 contains important exceptions.
Cal Evid. Code 972 states:
A married person does not have a privilege under this article in:
(a) A proceeding brought by or on behalf of one spouse against the other spouse.
(b) A proceeding to commit or otherwise place his or her spouse or his or her spouse’s property, or both, under the control of another because of the spouse’s alleged mental or physical condition.
(c) A proceeding brought by or on behalf of a spouse to establish his or her competence.
(d) A proceeding under the Juvenile Court Law, Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.
(e) A criminal proceeding in which one spouse is charged with:
(1) A crime against the person or property of the other spouse or of a child, parent, relative, or cohabitant of either, whether committed before or during marriage.
(2) A crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse, whether committed before or during marriage.
(4) A crime defined by Section 270 or 270a of the Penal Code.
(f) A proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify.
(g) A proceeding brought against the spouse by a former spouse so long as the property and debts of the marriage have not been adjudicated, or in order to establish, modify, or enforce a child, family or spousal support obligation arising from the marriage to the former spouse; in a proceeding brought against a spouse by the other parent in order to establish, modify, or enforce a child support obligation for a child of a nonmarital relationship of the spouse; or in a proceeding brought against a spouse by the guardian of a child of that spouse in order to establish, modify, or enforce a child support obligation of the spouse. The married person does not have a privilege under this subdivision to refuse to provide information relating to the issues of income, expenses, assets, debts, and employment of either spouse, but may assert the privilege as otherwise provided in this article if other information is requested by the former spouse, guardian, or other parent of the child.
Any person demanding the otherwise privileged information made available by this subdivision, who also has an obligation to support the child for whom an order to estabish, modify, or enforce child support is sought, waives his or her marital privilege to the same extent as the spouse as provided in this subdivision.
These are important exceptions, both in the criminal and civil context. In a nutshell, 972(e)(4) precludes invoking the testimonial privilege in criminal cases pursuant to PC 270 and 270(a). Further, a new spouse does not have testimonial privilege if the matter involves child support modification in an action brought by a former spouse. With that said, 972(g) does not allow opposing counsel to inquire to areas not related to issues of income, expenses, assets, debts, and employment of either spouse.
California Evidence Code 973 contains more exceptions:
(a) Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his spouse is a party, or who testifies against his spouse in any proceeding, does not have a privilege under this article in the proceeding in which such testimony is given.
(b) There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse.
So once a married person “opens the door” and testifies either for or against a spouse, they cannot then simply invoke the privilege, unless they were erroneously compelled to do so in the first place.
Cal. Evid. Code 973(b) is a bit tricky. Arguably, anytime someone is sued or sues another the opposing party can claim that it is for the immediate benefit of his spouse or of himself and his spouse in California, because California is a community property state. In other words, any married person with joint assets has something to win or lose in litigation involving their spouse.
The California courts are split on this issue. On the one hand, the court in Hand v. Superior Court (1982) 134 Cal.App.3d 436, 442, found that a personal injury action against husband defendant is a proceeding for the immediate benefit of his wife and allowed opposing counsel to depose her. In other words, she would benefit financially if he was found not liable for medical malpractice.
The other case, which took a different position, is Duggan v. Superior Court (1981) 127 Cal.App.3d 267, 272 [179 Cal.Rptr. 410, 412-13]. The court held:
These cases (class action lawsuits were members not named as plaintiffs in a class suit were persons for whose immediate benefit the suit was filed), appear to limit the application of “immediate benefit” to persons who are represented by a nominal plaintiff or defendant (as where a corporation serves as the alter ego of its sole shareholder) or who themselves have the right to act or defend against the adverse party on the issues involved. Otherwise, the right to a portion of the recovery is not immediate and direct.In addition, section 15025, subdivision (2)(e), of the Corporations Code provides that “A partner’s right in specific partnership property is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin, and is not community property.” (Duggan v. Superior Court (1981) 127 Cal.App.3d 267, 272 [179 Cal.Rptr. 410, 412-13].).
Regardless, this is a complicated area of law and you would be wise to seek advice from a qualified attorney.
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