HUSBAND/WIFE PRIVILEGES AND CRIMINAL INVESTIGATIONS

“FROM THE CLASSROOM”
By: Ray Hill, Professor Emeritus, Santa Rosa Junior College
Special Attention:  Law Enforcement Officers

There are no crimes, corpus delicti, or punishments in the California Evidence Code. The E.C. contains the statutory rules argued by the prosecution or defense in presenting evidence and used by the judge in evaluating the admissibility of evidence in court. That doesn’t mean that the Evidence Code is not important to peace officers. You field knowledge about now these rules work set stage for the introduction of admissible of evidence in court.

This will be the first in a series of articles covering the California Evidence Code as it relates to criminal investigations.

So, it is time for trial and mama does not want to testify against papa (or visa versa). They didn’t know squat about the Evidence Code at the time a crime occurred or was discovered, but defense counsel has taken the opportunity to educate spouses about privileges. A privilege may in fact be asserted. However, your knowledge of how husband/wife privileges actually work can assist your investigation. This is because either a privilege exception exists or information is learned during questioning that furthers your investigation or leads to the independent recovery of evidence.

A privilege is a statutory reason where a witness can legally refuse to testify in court. Relevant evidence is not heard by the trier of fact.

There are two categories of husband/wife privileges: Testimonial and Confidential Communication. 

A spouse holds a Testimonial Privilege to refuse to testify against the other spouse during marriage (970/971 E.C.). Examples would include witnessing criminal activity, gaining knowledge of criminal activity, or finding evidence of a crime. This privilege belongs solely to the “witness spouse”. If he/she wants to testify, the defendant spouse cannot block. The testimony comes in. If the marriage ends, the privilege ends, and a spouse must testify or be held ....

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