Confidential Marital Communications Under California Law.

Introduction

California law recognizes two distinct marital privileges: (1) the spousal testimony privilege, which allows a spouse to refuse to testify against the other spouse, and (2) the confidential marital communications privilege, which protects private communications made between spouses during marriage. These privileges, codified in the California Evidence Code, reflect a policy of protecting marital harmony and privacy. However, they are strictly statutory (California has no common-law privileges) and are subject to numerous exceptions. Courts construe these privileges narrowly (because they prevent the admission of relevant evidence) and interpret exceptions broadly. This article examines what constitutes a “confidential communication” between spouses under California law, distinguishing it from the testimonial privilege, and explains who holds these privileges, when they apply, and the exceptions that limit them. We also discuss key California case law interpreting the statutes (Evidence Code §§ 970–973, 980–987) and consider how the marital communications privilege arises in civil litigation (e.g. discovery and depositions).

Spousal Testimonial Privilege vs. Marital Communications Privilege

Spousal Testimonial Privilege (Evid. Code §§ 970–973): Under Evidence Code § 970, a married person has the privilege not to testify against their spouse in any proceeding. Similarly, § 971 provides that a person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party without consent. In essence, a spouse can refuse to take the stand or answer questions that are adverse to the other spouse’s interests. This privilege is held by the testifying spouse – meaning one spouse cannot prevent the other from voluntarily testifying; it only allows each spouse to decline if they so choose. Importantly, the testimonial privilege exists only during a valid marriage. It terminates upon divorce, so an ex-spouse cannot invoke it to avoid testifying in proceedings against the former spouse. (Nor does it apply to sham or void marriages, such as those involving bigamy or fraud.) Moreover, the privilege does not cover events that occurred before or after the marriage – a spouse may be compelled to testify about matters that predate the marriage or postdate a divorce (unless some other privilege applies).

Confidential Marital Communications Privilege (Evid. Code §§ 980–987): Separately, Evidence Code § 980 establishes that a spouse (or their guardian/conservator) has a privilege during and even after the marital relationship to refuse to disclose, and to prevent the other spouse from disclosing, a confidential communication made between the spouses while they were married. In other words, if one spouse privately communicates something to the other during marriage, either spouse can invoke this privilege to bar that communication from being revealed in court. This privilege is held by both spouses – even if one spouse wants to divulge the conversation, the other can object and stop it. Notably, unlike the testimonial privilege, the communications privilege survives the end of the marriage. A spouse (or even a surviving spouse) can refuse to disclose – and can block the other from disclosing – confidences made during the marriage, even after divorce or death (absent waiver or an exception). The rationale is that promises of confidentiality made during marriage should be respected even if the marriage ends.

Another key distinction is scope: the spousal testimony privilege is a broad right not to testify adversely at all, whereas the marital communications privilege only protects the content of communications between spouses. A spouse who does testify (or is compelled to under an exception) can still be asked about non-communicative evidence – e.g. things they personally observed or did – as long as they do not reveal the other spouse’s spoken or written words. For example, if a non-party spouse witnessed her husband come home appearing intoxicated, she could be made to testify to her observations (bloodshot eyes, driving pattern, etc.), which are not communications, but she could refuse to disclose what he told her about his drinking that night. In practice, this means the communications privilege can remain intact even when the testimonial privilege doesn’t apply. Courts have noted that one privilege may be waived or inapplicable while the other still bars certain evidence.

What Qualifies as a “Confidential Communication” Between Spouses?

Not every interaction between spouses is protected – the law only shields confidential communications. A communication is generally defined as an oral or written expression by one spouse intended to convey information to the other spouse. To be confidential, it must be made with the intention that it be kept between the spouses (i.e. not disclosed to third parties). Key features of a confidential marital communication include:

• Made During a Valid Marriage: The communication must occur while the couple is legally married (or in a registered domestic partnership, which California treats the same as marriage for privilege purposes). Statements made before the marriage or after separation/divorce are not covered by § 980 (though note the privilege to refuse disclosure can still be asserted after the marriage for communications that occurred during the marriage).
• Two-Person Privacy: The communication must be between the spouses alone, or in circumstances reasonably expected to be private. If it is made in the known presence of a third party, or publicly, it is not confidential and thus not privileged. For example, an argument between spouses in front of friends, or a statement copied to a third person, would not qualify. The presence of any third person (outside of agents facilitating the communication) usually destroys the expectation of confidentiality. By contrast, communications eavesdropped upon or intercepted without the spouses’ knowledge may still be considered “made in confidence” between the spouses (since the spouses intended privacy), though practical issues arise in trying to prevent an eavesdropper from testifying. Generally, however, courts focus on whether the spouses intended the exchange to be private between them at the time.
• Content vs. Acts: The privilege covers the content of communications – typically statements, correspondence, or expressive conduct intended as communication. It does not cover mere facts or acts that are not communications. Spouses cannot refuse to disclose facts like the date of a trip or the existence of an object just by claiming it was mentioned in a private conversation; only the conversation itself (what one spouse said to the other) is protected. Likewise, actions one spouse takes (even if witnessed by the other) are not communications. In one case, a husband mailed two $100 bills to his wife shortly after a crime; the fact he sent money was not a protected communication, nor was the physical note found in his trash addressed to his wife since he never actually delivered it to her. The court explained that because he never actually communicated the note to his spouse, no privilege attached to it. This illustrates that a communication must be transmitted between spouses to be protected – an unsent letter or a private diary entry, for example, would not qualify, as it was never shared with the other spouse.
• Intent to Remain Confidential: The intent of the speaker is critical. If a spouse knowingly shares the content of the communication with outsiders, or makes it in a context where confidentiality is not expected, it loses protection. Evidence Code § 912 provides that privileges (including § 980) can be waived if the holder voluntarily discloses a significant part of the communication or consents to its disclosure by someone else. Thus, if one spouse later shares the substance of a private spousal conversation with a third party (outside of privileged contexts), that spouse may waive the privilege, and the communication could be used in court. Short of a full waiver, the law presumes communications between spouses are confidential, and the party opposing the privilege has the burden to show otherwise (for instance, by proving it was said in public or there were third parties present).

In summary, any private, intra-spousal exchange of words or writings during marriage, made in confidence (i.e. with no outsiders present and no intent to disclose beyond the couple), is a “confidential communication” protected by Evidence Code § 980. Typical examples include a spouse’s admission of fault or wrongdoing confided only to their partner, intimate letters or messages between spouses, or discussions about personal matters behind closed doors. If the criteria above are met, the content of such communications cannot be examined in court over a proper privilege claim, unless an exception applies.

Holder of the Privilege and Assertion

For testimonial privilege, as noted, the witness spouse holds the right. The privilege is one of non-compulsion: a spouse can refuse to testify against the other, but cannot bar a willing spouse from taking the stand. In California, if a spouse chooses to testify (or fails to invoke the privilege timely), the privilege is deemed waived for that proceeding. Evidence Code § 973(a) provides that if a married person testifies against their spouse (or in any proceeding where their spouse is a party), they have no further privilege in that proceeding. In practice, this means once a spouse voluntarily testifies to any significant matter involving the other spouse, they cannot pick and choose questions to refuse – the privilege not to testify is lost for that case (except if the testimony was erroneously compelled despite a privilege, which is a rare situation).

For communications privilege, either spouse holds the privilege and can assert it to shield a communication. Section 980 by its terms allows a spouse to “refuse to disclose, and to prevent another from disclosing” the confidential communication. Thus, even the spouse who was the listener can claim the privilege to avoid revealing what the other said, and the spouse who made the statement can also object to the other spouse divulging it. Both spouses are considered holders in most scenarios. If one spouse is unavailable or chooses not to object, the other may still assert the privilege on their behalf (e.g. a guardian or conservator could assert it if a spouse is incapacitated). As with other privileges, a communication privilege can be waived by the holder(s) – for instance, if both spouses discuss the content of their private communication openly or share it with third parties, they cannot later claim it was confidential. But unilateral disclosure by one spouse might not destroy the privilege if the other spouse did not consent – technically the other spouse could still claim the privilege to block their own testimony or that of third parties about the communication, though practically if one spouse has already blurted it out in a judicial setting, the cat is out of the bag (and Section 912 waiver might apply). In any event, absent waiver, both spouses (during life, and a surviving spouse after the other’s death) have standing to invoke the privilege to keep their marital communications private.

Exceptions to the Marital Privileges

Both the spousal testimony privilege and the confidential communications privilege are subject to numerous statutory exceptions. California Evidence Code §§ 972 and 973 enumerate exceptions to the testimonial privilege, and §§ 981–987 enumerate exceptions to the communications privilege. Many exceptions overlap or are analogous between the two, reflecting situations where public policy deems marital privilege inapplicable. We address the communications privilege exceptions (which are “especially” pertinent here) and note corresponding testimonial exceptions where relevant.

Exceptions to Confidential Marital Communications Privilege (§§ 981–987)

Evidence Code § 980 begins with “Subject to Section 912 and except as otherwise provided in this article, …” indicating that what follows (§§ 981–987) are the carve-outs. If an exception applies, the communication is not privileged. Key exceptions include:

• Crime/Fraud Exception (Evid. Code § 981): No privilege if the communication was made, in whole or part, to enable or aid anyone to commit or plan a crime or fraud. This mirrors the crime-fraud exception in attorney-client privilege. For example, if spouses jointly plan a crime and communicate about it, those communications are not protected. (Notably, this applies even if the spouse seeking to exclude the evidence was the one who made the incriminating statement – the law will not protect communications in furtherance of wrongful conduct.)
• Proceedings Regarding Spouse’s Competency or Condition (§§ 982–983): There is no privilege in any proceeding to commit either spouse (or place them or their property under another’s control) due to the spouse’s mental or physical condition (such as a conservatorship or involuntary commitment proceeding), nor in a proceeding brought by or on behalf of a spouse to establish the competence of either spouse. In such cases concerning a spouse’s capacity or health, communications can be disclosed. The rationale is that a court determining a person’s mental fitness or needing to protect them should have all relevant information, even confidential spousal communications.
• Spouse-vs-Spouse Litigation (Evid. Code § 984(a)): There is no privilege “in a proceeding brought by or on behalf of one spouse against the other spouse.” In any civil or criminal case where the two spouses are directly adverse parties, neither can hide behind marital communications privilege. This covers obvious situations like one spouse suing the other for tort damages, a divorce or domestic violence restraining order hearing, etc. In such cases, any communications between them can be used as evidence (subject to ordinary rules of evidence) without privilege obstruction.
• Survivor Litigation (§ 984(b)): No privilege in a proceeding between a surviving spouse and a person claiming through the deceased spouse. For example, if after one spouse dies, the survivor and the deceased’s heir or executor litigate over the estate (claiming via will or intestacy), neither side can invoke marital communications privilege. The policy is that it would be unfair for the survivor to use the privilege as a sword or shield in disputes with the decedent’s successors.
• Certain Criminal Cases (Evid. Code § 985): No privilege in criminal proceedings where one spouse is charged with specific crimes against the other or certain family-related crimes. Specifically, § 985 lists:
  • (a) crimes committed at any time against the person or property of the other spouse or of a child of either spouse (e.g. domestic violence, spousal abuse, child abuse, destruction of spouse’s property).
  • (b) a crime against a third person committed in the course of committing a crime against the spouse. This is a bit complex: it means if the defendant spouse victimized someone else in the process of targeting their spouse, communications privilege is unavailable. The California Supreme Court in People v. Sinohui applied this exception broadly. In that case, the husband kidnapped and killed a third party whom his wife was seeing; although he was not formally charged with a crime against his wife, the facts showed the crimes occurred in the course of an offense against her (terrorizing her and forcing her participation). The court held § 985 (then § 972(e)(2) for testimonial privilege) should be construed to allow the wife’s compelled testimony. By analogy, any communications related to such an incident would also not be privileged. The Sinohui decision emphasizes that exceptions to marital privilege are interpreted liberally to avoid shielding wrongdoing.
  • (c) bigamy (Pen. Code § 281 et seq.) – one cannot claim privilege about communications in a prosecution for bigamy.
  • (d) violations of Penal Code §§ 270 or 270a – these are criminal failures to provide child support or necessities (child neglect/abandonment). So, in a case like prosecution for willful failure to support one’s child, communications between the spouses about that subject wouldn’t be privileged.
• Juvenile Court Proceedings (Evid. Code § 986): No privilege in proceedings under the Juvenile Court Law (e.g. dependency cases, proceedings to adjudicate children as dependents or wards due to abuse, neglect, etc.). This ensures that in protecting children’s welfare, spousal communications (perhaps revealing abuse) can be admitted.
• Defendant Spouse’s Offering the Communication (Evid. Code § 987): Finally, there is no privilege “in a criminal proceeding in which the communication is offered in evidence by a defendant who is one of the spouses.” In other words, one spouse cannot invoke the privilege to bar the other (who is a criminal defendant) from introducing their private communication as part of the defense. This prevents a scenario where the accused spouse wants to use an exculpatory marital communication (say, a wife’s statement that she alone committed the crime) but the other spouse tries to object on privilege grounds – the law lets the defendant spouse bring it in. Essentially, the privilege is waived if the defendant-spouse chooses to reveal the communication at trial.

If a communication falls into any of these categories, it is not protected by § 980 and can be disclosed or admitted like any other evidence (provided it’s otherwise admissible). For instance, a husband’s confession to his wife that he molested their child would not be privileged (crime against a child of either spouse). Or spouses conspiring to hide assets in a fraud scheme cannot cloak their planning conversations under privilege. As another example, in a divorce case or domestic violence prosecution between the spouses, neither can claim marital privilege – emails or conversations between them can be subpoenaed or testified to without restriction (and indeed both § 984(a) and the parallel § 972(a) remove privilege in those intra-spousal disputes).

Exceptions to Spousal Testimonial Privilege (§§ 972–973)

Although the focus is on communications, it’s worth noting the testimonial privilege has a similar slate of exceptions in Evidence Code § 972, which largely parallel the above:

• A spouse cannot refuse to testify in proceedings between the spouses (e.g. one against the other), or involving commitments or competency of a spouse, or in juvenile court matters.
• There are exceptions for criminal cases where one spouse is charged with crimes against the other spouse, or against a family member, relative, or cohabitant of either spouse (note § 972(e)(1) explicitly covers crimes against not just children but also relatives or cohabitants of either spouse – for example, if a husband is prosecuted for assaulting his wife’s live-in parent or roommate, the wife cannot refuse to testify). Also included are crimes committed in the course of a crime against the spouse (similar to § 985(b)), bigamy, and failure to support a child (Pen. Code 270/270a). There is even an exception if the criminal act predates the marriage and the witness-spouse knew of the charge pre-marriage (preventing a person from marrying a witness solely to suppress testimony).
• In addition, § 973(b) provides that in civil cases brought or defended for the immediate benefit of the spouse of a party, the adverse spousal testimony privilege does not apply. For instance, if a married person is defending a lawsuit and the stakes involve community property that would benefit both spouses, the non-party spouse may not refuse to testify because the litigation is effectively for their benefit as well. This “immediate benefit” exception is unique to civil cases and is less frequently litigated, but it exists as a check against abuse of the privilege in suits that affect both spouses’ interests. California courts have wrestled with what constitutes an “immediate benefit” – for example, whether defending a tort lawsuit that could deplete community assets triggers § 973(b). Some cases have reached differing conclusions on how direct or certain the benefit must be (compare Hand v. Superior Court (1982) 134 Cal.App.3d 436 with Duggan v. Superior Court (1981) 127 Cal.App.3d 267, noted in commentary). The statute’s plain language, however, clearly covers at least situations where a spouse has a present tangible interest (such as a jointly owned property or a community claim) at stake in the outcome. In practice, a litigant trying to compel testimony from a non-party spouse in a civil case might invoke § 973(b) to argue no privilege if the spouse stands to gain or lose from the case’s result.

Waiver and Limitations

Even when a scenario doesn’t fall into a statutory exception, a privilege can be lost by waiver. As mentioned, a spouse who voluntarily testifies to marital communications on a subject may waive the communications privilege as to that subject (Evid. Code § 912). Likewise, a spouse who takes the stand and testifies in a proceeding involving the other spouse waives the testimonial privilege for that proceeding. In People v. Sinohui, the Supreme Court reiterated that privileges should not be used to unfairly withhold evidence and that once waived or an exception applies, the court should not strain to find the privilege applicable. Courts will also prevent abuse of the privilege. For example, one cannot smuggle evidence through a spouse to hide it from discovery (e.g., giving documents to one’s spouse to try to claim privilege – that won’t work unless the act of communication itself is privileged; underlying facts and documents are not automatically privileged simply by being shared with a spouse).

In summary, while the scope of marital privileges is broad in theory, the exceptions swallow much of the rule. California law ensures that in proceedings directly between spouses, or involving crimes or important public policies (protecting victims, children, etc.), the privileges yield. And even where they apply, they can be waived or lost if not carefully preserved.

Case Law Interpreting Marital Privileges

California courts have produced a significant body of case law applying these Evidence Code sections. A few notable decisions illustrate how the statutes work in practice:

• People v. Sinohui (2002) 28 Cal.4th 205: This California Supreme Court case is a leading modern authority on spousal privileges. Sinohui involved a husband convicted of kidnapping and murdering a man, where the wife was a witness. She initially invoked the spousal testimonial privilege (§ 970) and refused to testify, but the trial court compelled her under the § 972(e)(2) exception (crime against a third person in course of a crime against spouse). The Supreme Court upheld this, interpreting the exception broadly. Even though the husband was not formally charged with harming his wife, the facts showed the crime against the third party was intertwined with terrorizing the wife. Sinohui is frequently cited for the principle that courts will construe exceptions to marital privilege expansively to avoid shielding criminal misconduct. The decision also contains a thorough discussion of the historical justifications for marital privilege and notes the widespread criticism of such privileges. Sinohui reinforces that California’s policy (as embodied in Evid. Code § 911 and related sections) is that privileges are disfavored in the search for truth, and thus when in doubt, communications or testimony will be admitted rather than excluded.
• People v. Dunn (1993) 21 Cal.App.4th 721: In Dunn, the Court of Appeal also emphasized the narrow construction of the privilege. Although Dunn is cited in Sinohui, its specific facts dealt with a definitional issue (the meaning of “cohabitant” in the § 972(e)(1) exception for crimes against a cohabitant of either spouse). The court in Dunn looked to the intent of the Legislature and other statutes to decide who counts as a cohabitant. The broader takeaway is that courts do not expand the privilege beyond its statutory wording and will interpret terms in exceptions (like “cohabitant”) in a reasonable, often broad, way to fulfill the exception’s purpose. (In a related case, People v. Siravo (1993) 17 Cal.App.4th 555, the court held “cohabitant” simply means living together, adopting a broad definition to include a separated spouse’s housemate. Dunn did not ultimately dispute that definition.)
• People v. Bogle (1995) 41 Cal.App.4th 770: This case illustrates how the confidential communications privilege is applied. The defendant Bogle was accused of murdering his landlords (a couple) and sought to prevent his wife from testifying. The court found the testimonial privilege didn’t apply due to the crime against a cohabitant exception (the victims were cohabitants in the same household). As to communications, Bogle had not properly objected at trial on that ground, but on appeal he argued his counsel was ineffective for not raising § 980. The appellate court noted a critical distinction: some evidence, like acts or tangible evidence communicated outside of words, was not subject to the communications privilege at all. For example, Bogle had sent his wife two $100 bills around the time of the crime – that was not a “communication” whose content is privileged. There was also a torn-up suicide note addressed to the wife, found in the trash. The court held this note did not fall under § 980 because Bogle never actually gave it to his wife – he wrote and destroyed it, describing it as a personal therapeutic note never intended to be sent. Since it was “never communicated to [the wife] in a confidential manner,” the privilege “did not attach.”. However, the couple did have a private conversation speculating about the victims’ source of money, which would have been a confidential marital communication had an objection been made. The court found that even if that particular communication should have been excluded, its admission was harmless error given the weight of evidence. Bogle is a useful case for parsing what is and isn’t a communication, and it underscores that the marital communications privilege covers what spouses say to each other, not what they do nor materials never shared. It also shows that if counsel fails to invoke the privilege, those communications can come in – so lawyers must be vigilant to assert § 980 when applicable, or risk waiver.
• In re Marriage of Bos (2015) 24 Cal.App.5th 1028 (not a criminal case but a family law context): The Court of Appeal in Bos dealt with a civil context, where one spouse sought to introduce emails between the other spouse and third parties. While not directly about § 980 (it involved privacy rights and discovery), the case reminds that communications not solely between spouses aren’t covered by marital privilege. If a third party is on an email (like a spouse copying a friend or relative), that communication isn’t confidential between spouses. Although Bos is more about marital privacy in dissolution proceedings, it aligns with the principle that marital communications privilege is strictly limited to intra-spousal communications intended to be confidential.
• People v. Von Villas (1992) 11 Cal.App.4th 175: This older case (part of the notorious Von Villas murder-for-hire saga) is sometimes cited regarding the crime/fraud exception. Von Villas and his wife communicated about crimes (planning burglaries and worse); unsurprisingly, the court had no difficulty finding those discussions unprivileged under Evid. Code § 981. The case is a dramatic illustration that spouses who conspire together cannot later claim their incriminating conversations are protected. The court also rejected any attempt to analogize marital privilege to attorney-client – the public interest in marital harmony does not extend to shielding criminal plans.

These cases (among others) reinforce the key concepts: The marital privileges are not absolute. Courts will examine the substance of a communication and the context of testimony carefully – if it falls outside the statutory grant or within an exception, the evidence comes in. Attorneys should note how strictly these privileges are applied: a failure to timely invoke them is a waiver, and even when invoked, the court will scrutinize whether an exception applies or whether the statement truly meets the definition of a confidential spousal communication.

Application in Civil Discovery and Depositions

Marital privilege issues are not confined to criminal trials; they also arise in civil litigation, especially in discovery. Consider a scenario in a civil case (personal injury, contract, etc.) where one party’s spouse has relevant information. How do these privileges play out in depositions and document discovery?

• Deposing a Spouse: If you notice the deposition of a party’s current spouse (who is not themselves a party), that spouse might attempt to invoke the spousal testimonial privilege (§ 970) to refuse to testify. In civil cases, however, the breadth of that privilege is curtailed. First, if the litigation is between spouses (e.g. one spouse sues the other for negligence), § 972(a) flatly eliminates the privilege – the spouse must testify as any other witness. Second, even if the case is not between them, California’s unique § 973(b) can come into play: if the spouse being deposed is married to a party who stands to benefit from the outcome, the deponent cannot claim privilege. For example, in a wrongful death lawsuit where the plaintiff is married (and the damages recovered would become community property), the defendant could argue the plaintiff’s spouse has no privilege under § 973(b) because the suit is being prosecuted for the benefit of that spouse as well. Similarly, a defendant’s spouse might be compellable if the lawsuit’s defense protects community assets. This exception was noted as “little-used and under-developed” in practice, but creative civil litigators have leveraged it when a spouse’s testimony is crucial. Before assuming a non-party spouse can simply “plead the fifth” (or rather, plead § 970) and avoid deposition, counsel should analyze whether an exception applies. If none of the § 972 or § 973 exceptions fit, a non-party spouse can indeed refuse to testify or be deposed, which might require the party to seek alternative discovery routes.
• Discovery of Communications: The confidential communications privilege often arises when one party seeks discovery of private communications (emails, texts, letters) between the opposing party and their spouse, or questions a deponent about conversations with their spouse. Such communications are privileged and not discoverable if a timely objection is made citing § 980. For instance, in interrogatories or deposition, asking “What did you tell your wife after you realized the contract was breached?” would prompt a privilege objection – the deponent spouse can refuse to answer on the ground that it was a private marital communication. In document requests, a litigant might withhold letters between spouses or private emails, logging them on a privilege log as “Marital communications – privileged under Evid. Code § 980.” The opposing side then has the burden to challenge whether the privilege truly applies (e.g., was the email also sent to a third person, meaning no confidentiality?). Generally, courts will protect genuine spousal communications from discovery just as they would protect attorney-client or doctor-patient communications. If there’s a dispute, a judge may review the communications in camera to determine if they are indeed confidential between the spouses and whether any exception (like crime/fraud) might pierce the privilege.
• Spouse as a Witness at Trial: In civil trials, it is common for a plaintiff to voluntarily call their own spouse to testify (for example, to corroborate damages or a loss of consortium claim). When a spouse voluntarily testifies on their partner’s behalf, that spouse has effectively waived any testimonial privilege by agreeing to testify (and § 973(a) would confirm no privilege once they take the stand). Moreover, by injecting issues that involve their private life, they may implicitly waive communications privilege for relevant communications (though a careful attorney can attempt to cabin the scope). On the other hand, if one party tries to call the other party’s spouse as a witness against that party, the spouse can object under § 970/§ 971 unless an exception applies or the court finds a waiver. The civil litigator’s strategy in such cases often involves demonstrating an exception like those in § 972. For example, if a plaintiff sues and also names the spouse as a co-plaintiff for loss of consortium, the spouse is a party and obviously cannot claim a privilege to avoid testifying. If the spouse is not a party but clearly has a stake (immediate benefit) in the outcome, the attorney can argue § 973(b) applies to compel testimony. Successful use of § 973(b) was discussed in Hand v. Superior Court, where a personal injury defendant sought to force the plaintiff’s wife to testify because any damages would benefit her community property share. The courts have not settled all contours of this exception, so results can vary.
• Privilege Logs and Objections: During discovery, when withholding information under marital privilege, the withholding party should cite the specific privilege. California discovery law (e.g. Code of Civil Procedure § 2031.240) requires a party to make an express claim of privilege and describe the nature of the documents or communications withheld sufficiently. For example: “Email from Defendant to spouse dated X/XX/20XX discussing incident – withheld under Evid. Code § 980 (confidential marital communication).” If depositions involve such questions, counsel should instruct the witness not to disclose the content of marital communications and put the objection on record. If pressed, a protective order may be sought.

In sum, in civil litigation the marital communications privilege is akin to any other privilege: it must be asserted to be preserved, and if properly invoked, the court will generally uphold it unless an exception squarely removes it. Courts have noted that in many civil cases, one spouse’s testimony is actually offered willingly (plaintiffs often rely on their spouses, thereby waiving privileges). It is typically the defending party’s spouse who might seek shelter under the privilege to avoid giving damaging evidence. Plaintiffs’ attorneys need to be prepared to challenge such invocations by citing the exceptions or arguing waiver, while defense counsel need to evaluate whether asserting the privilege is worth the potential negative inference it may trigger in the fact-finder’s mind.

Finally, lawyers should remember that privileges must be affirmatively claimed. If a spouse answers questions or produces communications without ever asserting § 980 or § 970, a court will deem the privilege waived for those disclosures. Once waived, it cannot be clawed back (absent some extraordinary situation of compelled erroneous disclosure). Therefore, both in discovery and at trial, timely objection is key.

Conclusion

California’s law of confidential marital communications, codified in Evidence Code § 980, provides robust protection for the privacy of spouses – allowing them to speak freely to each other without fear that their words will later be used in court. To qualify, communications must truly be confidential and occur during a valid marriage. The privilege is powerful in that it can be invoked by either spouse and continues indefinitely (even post-dissolution) for those communications. However, this protection is far from absolute. The Evidence Code carves out many commonsense exceptions to prevent the privilege from concealing misconduct or standing in the way of justice, especially in cases involving inter-spousal disputes, crimes, or the welfare of children and others. California courts, as illustrated by Sinohui and other cases, are generally inclined to limit the scope of the privilege to its intended purpose (promoting candid marital discourse) and not allow it to become a tool for obstruction.

For legal professionals, it is crucial to identify when a communication truly falls under the marital communications privilege and to be aware of any exceptions or waivers that may apply. In both civil and criminal matters, one should evaluate the timeline of the marriage, the presence of any third parties, the content of the communication, and the nature of the proceeding to determine if the privilege can be asserted or overcome. When in doubt, a prudent approach is to make a record of the privilege claim (to avoid accidental waiver) and seek the court’s ruling, possibly via in camera review for contested communications. By understanding Evidence Code §§ 970–973 and 980–987, attorneys can better navigate issues of spousal testimony and confidentiality – ensuring they either protect their client’s marital communications from disclosure or, on the flip side, challenge an opposing party’s improper privilege claim. In California, the sanctity of marital confidences is respected, but it yields when greater legal interests are at stake, striking a balance that practitioners must carefully manage.

Sources:

• Cal. Evid. Code §§ 970–973 (spousal testimonial privilege and exceptions); §§ 980–987 (confidential marital communications privilege and exceptions).
• People v. Sinohui (2002) 28 Cal.4th 205, 212-213 (broad construction of exceptions to marital privilege).
• People v. Bogle (1995) 41 Cal.App.4th 770, 778-782 (application of cohabitant exception and communications privilege; note never communicated = not privileged).
• Love & Marriage – Marital Privileges in Civil Lawsuits, Anthony L. Label, Plaintiff (Feb. 2012) (discussion of civil context and § 973(b) “immediate benefit” exception).
• McKinley et al., How Marital Privileges Work in California (Nov. 30, 2022) (overview of spousal testimonial and communications privileges, with exceptions).