Updated October 2026 | The Bulldog Law | California Criminal Defense
California gives a married person two separate privileges, and people confuse them constantly. The testimonial privilege, in Evidence Code 970, lets a spouse refuse to testify against the other spouse in any proceeding, on any subject, for as long as the marriage lasts; it belongs to the witness spouse, who may waive it by choosing to testify, and it ends at divorce. The marital communications privilege, in Evidence Code 980, protects what spouses said to each other in confidence during the marriage; either spouse may invoke it, it survives divorce, and it bars disclosure even by a willing spouse. Both privileges disappear in the case where people most often expect them: a prosecution for a crime committed by one spouse against the other, against a child, or against a cohabitant. Registered domestic partners have the same privileges. Couples who merely live together have none.
The Bulldog Law's attorneys answer the spousal privilege question in two situations. The first is the domestic violence case, where the client assumes the spouse cannot be made to testify and is wrong, because the exception for crimes against the spouse removes the privilege and the prosecutor will subpoena her. The second is everything else: the fraud case where the spouse signed documents, the drug case where the spouse was in the car, the homicide case where the spouse heard the admission, and in those cases the privileges are real, they are strategic, and they are frequently misapplied by courts and prosecutors. What follows is what each privilege covers, who holds it, the exceptions, what happens at divorce, and how the privileges work in practice. Call (888) 928-1609 or message our team if a spouse has been subpoenaed in your case.
The testimonial privilege: Evidence Code 970 to 973
Evidence Code 970 provides that a married person has a privilege not to testify against their spouse in any proceeding. Evidence Code 971 adds that a married person whose spouse is a party has a privilege not to be called as a witness by an adverse party at all, so that a prosecutor may not even put the spouse on the stand and force a refusal in front of the jury, unless the spouse is called with the consent of the party spouse or the privilege does not apply. The privilege covers testimony on any subject, including events before the marriage and things the witness spouse observed rather than heard; it is a privilege not to be a witness against one's spouse, not merely a privilege to keep secrets.
The privilege belongs to the witness spouse. The defendant cannot invoke it to keep a spouse off the stand; the spouse decides. A spouse who wishes to testify may, and the defendant has no objection. A spouse who refuses may not be held in contempt for the refusal, which is the difference between a spouse and any other witness served with a subpoena. Under Evidence Code 973, a spouse who testifies in the proceeding waives the privilege for that proceeding, so a spouse who takes the stand for the defense may be cross-examined on everything; and a spouse who testifies for the other spouse in a civil case waives it for that case as well.
The privilege requires a valid marriage at the time of the testimony. It ends at divorce or annulment; a former spouse can be compelled to testify about anything, including events during the marriage, subject only to the communications privilege. It arises on marriage, which creates the question courts have addressed with some discomfort: a marriage entered after the crime and before trial does confer the privilege, and California courts have declined to carve out a sham-marriage exception, though a marriage that is itself a fraud is challenged on other grounds and a bigamous one is void. Registered domestic partners are treated as spouses under Family Code 297.5. Unmarried cohabitants, fiancés, and co-parents have no privilege of any kind.
The communications privilege: Evidence Code 980 to 987
Evidence Code 980 gives a spouse the privilege to refuse to disclose, and to prevent another from disclosing, a communication made in confidence between the spouses while they were married. It is a different right. It covers the content of confidential communications, not the act of testifying; it belongs to both spouses, so that either may invoke it to stop the other from revealing the conversation; and it survives the marriage, so that a former spouse who can be compelled to testify still may not reveal what was said in confidence while the marriage lasted.
Confidence is the requirement. A statement made in front of a third party, including an adult child, is not confidential. A statement the speaking spouse intended to be passed on is not confidential. Conduct, as opposed to communication, is generally not protected, though courts have treated some acts as communicative. Documents written by one spouse to the other in confidence are covered. And a communication intercepted by a third party, a recording, an eavesdropper, a police wiretap, raises questions our attorneys address with the illegal recording statutes alongside the privilege.
Evidence Code 981 removes the communications privilege where the communication was made to enable or aid anyone to commit a crime or fraud, the marital version of the crime-fraud exception. A spouse's confession after the fact is protected; a conversation planning the crime is not. The line is drawn by the purpose of the communication, and the prosecution bears the burden of showing the exception applies.
The exceptions: Evidence Code 972
Evidence Code 972 lists the proceedings in which the testimonial privilege does not exist, and the list is where most spousal privilege questions are actually decided:
A criminal proceeding in which one spouse is charged with 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 the marriage. This is the domestic violence exception, and it is broad: it covers the assault on the spouse, the abuse of a child, the theft from the spouse's parent, and crimes against a person who lives in the household. In a domestic violence case the victim spouse has no testimonial privilege and can be subpoenaed, and the question becomes the one our attorneys address on our page on witnesses who refuse to testify: what the prosecution does when she will not, which is proceed on the 911 call, the bodycam, and the photographs, and what happens if she defies the subpoena.
A criminal proceeding in which one spouse is charged with bigamy, or with failing to provide for the other spouse or a child. A proceeding to commit or place either spouse or a child. A proceeding brought by one spouse against the other. A juvenile court proceeding. And, under Evidence Code 972(f), a criminal proceeding in which the spouse is charged with a crime against a third person committed in the course of committing a crime against the other spouse, so that an assault on a bystander during a domestic incident is not privileged either.
The communications privilege has a parallel set of exceptions in Evidence Code 985 and 986, covering the same crimes against the spouse and children, so that in a domestic violence case neither privilege applies to the threats, the admissions, or the conversations about the incident. Prosecutors in those cases treat the privilege as a non-issue, and they are generally right, which our attorneys explain to clients early, because the defense of a domestic violence case is built on the evidence, not on keeping the spouse out; our page on what makes domestic violence a felony covers that evidence, and our page on intimate partner battering covers the cases in which the spouse's history is the defense.
How the privileges work in practice
The invocation. The testimonial privilege is asserted by the witness spouse, usually through counsel, when subpoenaed; the court determines whether the marriage is valid and whether an exception applies, and if the privilege stands the spouse is excused. The communications privilege is asserted by either spouse when the question is asked, and the court rules on confidentiality and the crime-fraud exception. Our attorneys advise the witness spouse separately where interests may diverge, and in some cases the spouse retains independent counsel.
The jury. Under Evidence Code 913, neither the court nor counsel may comment on the exercise of a privilege, and the jury may draw no inference from it. A spouse's refusal to testify is not evidence of anything, and Evidence Code 971 exists so that the jury never sees the refusal.
The waiver trap. A spouse who gives a statement to police has not waived the testimonial privilege for trial; the privilege is against testifying, and a prior statement is not testimony. But the statement itself may come in under a hearsay exception if the spouse is unavailable, and a spouse who invokes the privilege is unavailable for that purpose, so the prosecution may offer the police statement, the 911 call, or the preliminary hearing testimony instead. In domestic violence cases, Evidence Code 1370 admits a victim's statement describing an injury or threat if the victim is unavailable, which is the mechanism by which a non-testifying spouse's words reach the jury. The decision to invoke is therefore made with the hearsay consequences in view.
The pressure. A defendant who encourages a spouse to invoke the privilege is exercising a right; a defendant who threatens, pays, or pressures a spouse not to testify has committed witness intimidation under Penal Code 136.1, and prosecutors monitor jail calls for exactly that. The conversation about the privilege happens between the spouse and counsel.
Federal court. Federal courts recognize both privileges under Rule 501 and common law. Under Trammel v. United States, the testimonial privilege belongs to the witness spouse alone; the communications privilege belongs to both. The exceptions for crimes against the spouse and children apply, and federal courts also apply a joint-participant exception, barring the communications privilege where the spouses were partners in the crime, which matters in the federal fraud and conspiracy cases where both spouses are charged. For non-citizens, a spouse's testimony or its absence can also bear on immigration proceedings, where the privileges do not apply in the same form.
The privileges are not a defense; they are an evidentiary rule, and a prosecution that depends on a spouse's testimony and cannot get it has one of the weaknesses that ends cases. Our attorneys evaluate the privileges in every case where a spouse was a witness, and in the cases outside the domestic violence exception, they frequently decide what the jury hears. The related psychotherapist-patient privilege is addressed separately.
Frequently asked questions
Can a wife testify against her husband in California?
She can choose to, but she usually cannot be forced to. California gives a married person two separate privileges. The testimonial privilege under Evidence Code 970 lets a spouse refuse to testify against the other spouse in any proceeding, and the privilege belongs to the witness spouse, not the defendant. The marital communications privilege under Evidence Code 980 protects confidential communications made during the marriage, and either spouse can invoke it. A wife who wants to testify may; a wife who does not want to may refuse, subject to the exceptions.
Does spousal privilege apply to domestic violence cases?
Not when the spouse is the victim. Evidence Code 972 removes the testimonial privilege in a criminal proceeding where one spouse is charged with a crime against the other spouse, against a child of either, or against a cohabitant. A spouse who was the victim of domestic violence can be subpoenaed and compelled to testify like any other witness, and the communications privilege does not cover the threats or admissions related to the offense. Prosecutors use that exception in nearly every domestic violence case where the victim is reluctant.
What is the difference between the testimonial privilege and the communications privilege?
The testimonial privilege covers the act of testifying: a spouse may refuse to take the stand against the other at all, on any subject, while the marriage lasts. It ends with divorce. The communications privilege covers what was said in confidence between spouses during the marriage: it protects the content of those conversations, it survives divorce, and it can be invoked by either spouse even if the other wants to disclose. A former spouse can be compelled to testify but still may not reveal confidential marital communications.
Does spousal privilege apply to unmarried couples or domestic partners?
Registered domestic partners, yes; everyone else, no. California extends both marital privileges to registered domestic partners under Family Code 297.5. Couples who live together, are engaged, or have children together but are not married or registered have no privilege, and either may be compelled to testify against the other and to disclose what was said. A marriage entered after the events but before trial does create the testimonial privilege, which courts have accepted, though the communications privilege covers only statements made during the marriage.
Can a spouse be forced to testify in federal court?
The rules are similar but not identical. Federal courts recognize both privileges under common law. The testimonial privilege, under Trammel v. United States, belongs to the witness spouse and can be waived by that spouse alone. The communications privilege belongs to both. The exceptions for crimes against the spouse or children apply, and federal courts also apply a joint-participant exception that bars the privilege where the spouses were partners in the crime, which California has not adopted in the same form.
Related reading from our attorneys
- What happens when a victim or witness refuses to testify
- Subpoenas: rights of witnesses and defendants
- Is domestic violence a felony in California?
Your spouse has been subpoenaed? Which privilege applies, and whether it applies at all, is decided case by case
The Bulldog Law's defense attorneys litigate marital privilege questions in domestic violence, fraud, drug, and homicide cases across California, and advise witness spouses on their own rights where interests diverge. Visit our criminal defense page, call (888) 928-1609, or reach us online.