Tell me about "Spousal Privilege"

We’re watching an episode of The Closer. In it, a woman tells Chief Johnson about a conversation she had with her husband that would implicate him in a murder. When the Chief plans to use this evidence to find proof of his guilt, the woman reminds her that the conversation she had with her husband can not be used because of spousal privilege. This isn’t the first time I’ve seen spousal privilege used this was in a TV cop show, and it’s always confused me. I had always thought that spousal privilege only protected one spouse from being compelled to testify against the other, but my television suggests that it can also be used to prevent one spouse from testifying against the other.

So I found California Evidence Code, Article 4 Section 971, which 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.”

The part that confuses me here is which spouse ‘has the privilege’: the spouse who is a party to the proceeding, or the spouse who would be called as a witness?

For example: if I have a *really *bad day at work and run my boss down in the parking lot, then come home and tell my wife about it, can I exert spousal privilege to prevent her from testifying that I confessed my crime to her? Or is the privilege hers, so that she may choose whether or not to testify against me?
And no, I do not “need answer fast”

IANAL, but if your spouse is on trial (civil or criminal) and you get called as a witness you can decline to testify, you “waive privilege” if you decide to testify, your spouse can’t stop. Now if you get asked about something your spouse told you in private your spouse is the one that needs to “waive privilege”, not you. This doesn’t apply in family law or criminal domestic abuse cases. Also there is no spousal privilege at all between same-sex couples in federal court even if the proceedings are taking place in a state where the couple is legally married. To sum up you can stop your wife from testifying about what you told her, but not about anything else.

Saw the same episode - (worst christmas episode ever, darn near worst closer ever) - and had the same basic thought/question - that it was more about compelling the testimoney in court - not about not being able to ‘use’ comments made by spouse in an effort to find info - after all, she blurted it out - she wasn’t directly asked for the info, etc.

Thanks alphaboi, that’s pretty much what I figured after reading the statute, although it seems ‘wrong’ to me. I don’t like the idea of anyone being *prohibited *from giving testimony against another person if they wish to do so. But I suppose that’s a topic for a different forum…

Really? What about a psychiatrist, for example?

Or an attorney?

Sorry, I was a bit too broad with that statement. Obviously there are a number of situations where privilege is expected (doctors, priests, etc.). I guess what I should have said is simply that I don’t see why spouses should be a privileged class. I can understand the reason, I guess…that I should be free to confide in my spouse without fear of repercussion, but I don’t like the idea coming from the other direction.

:confused: you mean you’d like to be able to confide freely in your spouse, but you wouldn’t want her to be able to do the same?

As a Lawyer I cannot except in certain enumerated situations testify as to what the client has told me in confidence even if I wanted to unless the Client waives it.

In certain ways, the married couple has been legally fused into a single entity (that is really what “married” means, joining two separate things into one new thing.)

That narrative is actually consistent with spousal privilege being a right of the spouse called to witness, not of the spouse in the dock - the wife mentions her privilege not to testify, and implies that she intends to exercise that privilege.

A related question, if I may: in German civil and criminal procedure spousal privilege also extends to the merely betrothed, as well as to ex-spouses. Is that also the case in US/UK law?

To expand on what alphaboi867 said, in most jurisdictions in the U.S., spousal privilege is actually two separate priliveges, “spousal immunity from testimony” and “confidential communications during marriage.”

To reuse an example I used in an old thread, say a husband comes home covered in blood after a gruesome murder occurs, a murder for which he is later indicted. The wife sees him all bloody. The prosecutor wants to put her on the stand to testify about what she saw. Under the spousal immunity privilege, she cannot be forced to testify if she doesn’t want to. However, the majority rule is that the testifying spouse is the holder of the privilege, not the defendant spouse. She may testify if she wants to. Also, the privilege does not apply after the marriage, only during.

Let’s also say that on that night she asked about the blood, and the husband responds “well, don’t tell anyone, but I’ve been stabbing this guy. Could you fetch my liniment for my stabber’s elbow?” This would be protected by the confidential communications privilege, which acts a lot like the attorney-client privilege. The majority rule is that both spouses hold this privilege, not just the testifying spouse, and that even if they are later divorced, she cannot testify as to what she was told in confidence, although she can testify about the bloodstains she saw.

An important exception: if the case is one that involves a crime that is “destructive of the family unit”, like spousal abuse or child abuse, the privilege doesn’t apply. Since the rationale of the privileges is preservation of the marriage/family unit, applying the privileges in those cases would defeat their purposes.

This is what I’ve always heard. Because of the tradition of “husband and wife becoming one,” the prevention of compelling testimony from a spouse is simply an extension of the prevention of compelling testimony which is self-incriminating.

Errr no, The purpose of the rule is to protect communication made in marriage and to prevent spouses from having to testify against one another.

I suppose that’s it, and looking at it that way makes sense.

Consider ignorance successfully fought today. I was always aware of the first privilege (immunity from forced testimony), but was unaware, or at least unclear, on the second.

To expand on the question, does the privilege only apply to testimony in court? That is; using your example, suppose the wife calls the police and tells them her husband just confessed to a murder, and the police investigate and find evidence linking the man to the crime. Can the DA use the evidence the police collected in their investigation, which was triggered by a ‘protected’ conversation? Is the only restriction that they cannot use testimony by the wife that the husband confessed to the murder? Or do they need to find ‘independent’ evidence of the crime in order to prosecute?

What are the limits to this privilege? I know that a psychologist can report many illegal activities if questioned by the police, and that a lawyer risks being cited for aiding in perjury if they know their client is guilty. The only privilege that seems to not have exceptions for criminality is the one of a priest.

From what has been said in the thread so far, it would seem that the husband could report raping their daughter while she slept, and the wife could do nothing about it.

No, I believe he means it seems attractive to the person doing the confessing, but unattractive to the person who is restricted. I’m sure the husband in my hypothetical above loves to be able to get his horrible crime off his chest, but the wife is not going to be happy.

If you’re genuinely interested in an answer to this question, you might want to go up a few posts and see pravnik’s very informative summary.

No, that’s not what the thread has said so far.