Exploring Spousal Privilege in California and Federal Criminal Law

Wedding rings and money on a wooden table

The sanctity of marital relationships is a concept in the law that is engrained and protected. Spousal privilege, a legal principle rooted in trust and confidentiality, is designed to protect the privacy of communications between married couples. In California, this privilege is governed by Evidence Code sections 970-973, and it plays a critical role in preserving the bonds of trust between spouses.

California Evidence Code Sections 970-973

In California, spousal privilege is held by the testifying spouse, granting them the right to refuse to testify against their spouse in court. In contrast to other privileges, like attorney-client privilege, it is the witness-spouse who holds the privilege rather than the spouse whose information is being protected.

Duration of the Privilege

The spousal privilege extends to confidential communications made during the marriage, and it endures even after the marriage has ended.

Exceptions to the Privilege

The most notable exception is the “crime-fraud exception,” governed by Evidence Code section 981. This exception to spousal privilege allows for the disclosure of communications between spouses if they were made in furtherance of a crime or fraud. For example, if a husband tells his wife that he was planning to murder his business partner, his wife could not later invoke the spousal privilege and could be compelled to testify about this statement.

Another exception arises in a criminal case where one spouse is charged with domestic violence against the other spouse or their child, a crime committed against the person or property of a third person in the course of committing a crime against their spouse, bigamy, or child neglect. For example, if a husband commits domestic violence against his wife and vandalizes her new boyfriend’s car, the wife may not claim the spousal privilege at trial. Another example is in a case of child neglect against a husband, the wife may not later be able to claim that their communications regarding the husband’s neglect of the child are privileged because they are married.

The third exception to the spousal privilege occurs when spouses are codefendants in a criminal case. For example, if spouses are co-defendants in a conspiracy to commit arson case where they burned down their home in order to defraud their homeowner’s insurance company, if one of the spouses chooses to waive their privilege against self-incrimination and chooses to testify, they may not claim the spousal privilege as it relates to that offense.


Holding the Privilege: Imagine a case where a wife, Sarah, has vital information that could incriminate her husband, Mark. Mark is charged with a white-collar crime, and Sarah is called as a witness. Sarah holds the spousal privilege, allowing her to refuse to testify against her husband about any confidential communications.

Waiving the Privilege: Because Sarah holds the privilege, if she later decides to waive her spousal privilege, she can voluntarily testify against her husband, Mark.

If you or your spouse are facing charges for a crime, it is critical that you hire an attorney that understands the intricacies of spousal privilege and how to best utilize those privileges to your or your spouse’s advantage. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive experience with the Evidence Code regarding spousal privilege.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

Share |
Featured on CNN
ABC News
NBC News
Los Angeles Times
CBS News
The New York Times
Us Weekly
Entertainment Tonight
Good Morning America
Legal Broadcast Network
Avvo Rating 10.0
Client Reviews
Michael Kraut is outstanding! He genuinely cared about my case and instructed my mom and I throughout the entire process. He was very clear on what he needed in order to receive the best results. He kept us updated until the end. I thank him so much for getting my charges rejected. I highly recommend him to anyone with legal needs! Shaquan
I contacted Michael with concern for my personal and business reputation. He was very reassuring and confident the entire time. After about 3 weeks it was determined that no charges were being filed by any agency and I was in the clear of any investigation. One thing that is amazing is just how FAST Michael is at replying to phone calls, texts, and even emails! We are talking under 30 minutes in most cases. That is unheard of for most attorneys! Michael is incredible and not your typical run of the mill attorney. For best results hire him if you feel like you might be under investigation or could face charges. Even if you know you are innocent it is best to take care of the smoke before it becomes a fire. Brad
Michael Kraut is-hands down-the best criminal defense attorney and I can't begin to thank him for all that he did for me and my family. I reached out to him in the middle of the night and less than a couple hours later, he had gotten back to me and scheduled a meeting. He's a no-nonsense attorney who knows how to get the job done! From the second we retained him, I had peace of mind in knowing that we were in the best hands possible. If Michael Kraut couldn't get it done, I knew that it couldn't be done at all. You can't put a price tag on your freedom. He was worth every single penny. Lida
Michael Kraut is an outstanding attorney. He was extremely professional, and straightforward, yet sensitive with my case. I am confident I made the right choice by hiring Michael. I highly recommend him to anyone seeking a truly experienced lawyer. Daniel
Michael Kraut - I cannot thank you enough for all that you did for ​my son. When I came to you I read that you used to be a district attorney but I never knew how much that meant until I watch you in court. I knew it took 3 months but the final day when I heard the judge say that all charges were dismissed it was all worth it! I will always be grateful for all that you did for us. A.N.