“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 in contempt of court.

A spouse also holds a Confidential Communication Privilege to refuse to disclose (and the other spouse to block the disclosure) of a confidential communication made during marriage (980 E.C.). This is a communication meant solely for a spouse’s “ears or eyes” and is made with adequate precautions to assure the communication is not disclosed in the presence of, or shared with, another person. If the marriage ends, the privilege still remains in effect.

 A presumption exists that a communication was made “confidentially” (917 E.C.). The prosecution carries the burden of proof to rebut this presumption.

A privilege applies when testimony is sought during the course of a legal marriage recognized in California or under the laws of another state or nation. A same sex marriage is legal in California (U.S. v. Windsor (2013) 570 U.S. 744; Hollingsworth v. Perry (2013 570 U.S. 693.). A “registered domestic partner” is included under spousal privileges (917/980 E.C.).

A "common law relationship” is not recognized as a legal marriage in California. However, if a common law marriage is legal in another state, it is valid for the purposes of claiming privilege in California. Examples:

“It is a well settled rule that a marriage which is contrary to the policies of the laws of one state is yet valid therein if celebrated within and according to the laws of another state” (McDonald v. McDonald (1936) 6 Cal. 2d 276). A common law marriage legal in Alabama could be claimed in California (4104 Civil Code; 308 Family Code; Colbert vs. Colbert (1946) 28 Cal. 2d 276); A claim of a common law marriage didn’t invoke a privilege to block the introduction of conversations made by the defendant to his partner about his involvement in a murder. Though the parties called themselves husband and wife, lived together, wore wedding rings, authored a hospital document where the female designated herself as defendant's wife, and the female wrote on employment applications and W-4 forms she was married to defendant, their relationship didn't meet the statute requirements for a common law marriage in Texas (Peo. v. Badgett (1995) 10 Cal. 4th 330).

The introduction of letters written by the defendant from jail to his fiancé were not covered by privilege. The spousal privilege doesn't apply to unmarried persons (Peo. v. Hunt (1982) 133 Cal. App. 3d 543); Defendant (husband) had initiated an action for dissolution of marriage and he had moved out of the home. His wife had obtained a temporary restraining order preventing him from visiting the house or physically contacting her. No discussion of reconciliation took place after separation. Two months later, defendant called his wife and told her that he had choked and raped another woman. He did not call to seek marital advice or understanding, rather to alert his wife that she might need to move since he might go to jail and would be unable to make the house payments. At trial, the estranged wife testified to this conversation. No privilege was applicable because the “marriage had failed”. Factors to consider are the irreconcilability of the marriage, whether a divorce action has been filed, and the party’s subsequent relationship after separation (U.S. v. Roberson (1988) 859 F 2d 1376).

So let’s examine some “ins and outs” of husband/wife privileges that may come up during your investigation.

1) Always Try to Talk to a Witness Spouse! It is unlikely that he/she has read the California Evidence Code and has a knowledge of privileges. A spouse may be fearful or upset with the other spouse because of the nature of the crime committed, a spouse may be caught “off guard” by unanticipated police questioning, or there may be another motive or axe to grind against the other spouse. Seize the opportunity and ask questions! The witness may disclose information about the case which leads you to other witnesses, the location of a crime scene, an instrumentality or other physical evidence, add to probable cause for a search warrant, or reveal other relevant details about the crime. Though a spouse may later claim privilege and refuse to testify in court (and you will not be able to repeat these statements as admissible hearsay), nonetheless you know more about your case and may be able to link the defendant to a crime scene or recovered evidence by independent legal source. There is no “fruits of the poisonous tree” remedy for this independently linked evidence because privileges are rules of evidence asserted in court and not found in the Constitution (Brinegar v. U.S., (1949) 338 U.S. 160; Peo. v. Morgan (1989) 207 Cal. App 3d 1384).

2) Crimes Within the Family – Are you investigating a case of cohabitation abuse, aggravated assault, spousal rape, child abuse, elderly abuse, child endangerment, bigamy, incest, or child molesting? A major exception to husband/wife privileges are crimes committed against the person or property of a spouse, or against a child, parent, relative, or cohabitant of the household, or against a third person while committing a crime against the person or property of the other spouse (972 (e)(1) & (2) E.C.). Privileges cannot be claimed under these circumstances. A spouse would have to testify or be found in contempt of court. A crime doesn't have to occur in the household environs - it can occur anywhere in California. "Cohabitant" means two people who live, dwell, or regularly reside together in the same household and includes tenants paying rent (Peo. v. Siravo (1993) 17 Cal. App. 4th 555). Examples:

A wife had knowledge that her husband had murdered his 22-year-old stepson. A child connotes family relationship without limitation of age or blood relationship (Peo. v. McGraw (1983) 141 Cal. App. 3d 620); The "household victim" exception required a wife to testify against her husband in the murder of the couple's foster son (Dunn v. Superior Court (1993) 21 Cal. App. 4th 722)); A husband's acts of rape and oral copulation against a cohabitant living in the household was not subject to privilege (Peo. v. Siravo (1993) 17 Cal. App. 4th 555); In a double murder prosecution, the victims occupied a bedroom and shared the kitchen and other living areas in the defendant's house (Peo. v. Bogle (1995) 41 Cal. App. 4th 770); Defendant falsely imprisoned his wife and her boyfriend. The boyfriend was forced into the vehicle trunk, shot, and killed. The crime was committed against a third person during a continuous course of criminal conduct (Peo. v. Sinohui (2002) 28 Cal. 4th 205).

3) Getting Married in Order to Assert a Privilege – This one is a bit tricky. If prior to marriage, a "now spouse" was aware of an arrest or criminal complaint filed against the other spouse, the testimonial privilege is void as to any knowledge acquired before marriage (972(f) E.C.). Under these circumstances, persons cannot get married for the purpose of claiming a testimonial privilege. A confidential communications privilege doesn’t apply to any pre-marital conversations.

However, a legal loophole exists in this area. If before marriage there was knowledge that a crime had been committed, but the "now spouse" had not yet been arrested or formally charged with that crime, a marriage could take place and a testimonial privilege could still be claimed. It is the other now spouses’ knowledge of arrest or criminal complaint that voids privilege, not knowledge that a crime had been committed.

Because a Testimonial Privilege only belongs to the witness spouse, if the other wanted to testify, the defendant spouse could not block this testimony.

4) Not Keeping a Communication Confidential -  If the defendant spouse makes a disclosure in the known presence of a third party or discloses the details spoken during a confidential communication to others, the privilege is void because there were no precautions to ensure confidentiality, i.e., the disclosure(s) were not meant for spouse's "ears or eyes" only. The privilege cannot be extended to persons outside the marital relationship (i.e., to children or other family members). Examples:

Indiscriminate or careless disclosure in the known presence of a third person(s) will invalidate a privilege (Peo. v. Rubio (1988) 202 Cal. App. 3d 134); Defendant made threats to his wife directed against her lover. These threats were also communicated on separate occasions to two student psychology interns and his mother-in-law. Defendant murdered the lover. Because the revelations were made to persons "outside the marriage relationship", defendant's statements to his wife were not meant to be confidential (Peo. v. Gomez (1982) 134 Cal. App. 3rd 874).

Because husband/wife is the only privilege category with “dual application”, if a confidential communication is void for some reason, a spouse could still assert one’s “across the board” testimonial privilege to refuse to testify during marriage to the content of the conversation. However, because a testimonial privilege only belongs to the witness spouse, if he/she wants to testify, the other spouse cannot block. Also, any person outside the martial relationship who heard the “non-confidential” disclosure can be subpoenaed to testify.

So whether you are a field officer or deputy responding to an initial report, a generalist in your agency responsible for follow-up on the case, or detective assigned to the continued investigation, privileges always have exceptions. I trust this article gives you a little more insight on husband/wife privileges and how you can further your case in the gathering evidence.

Stay Safe,

RH