Domestic Violence Attorney: Marital Privilege

There are several "privileges" in the evidence code which entitle the holder to prevent another person from testifying against them. For instance, the attorney-client privilege forbids an attorney from disclosing what their client has told them, even if it is an admission to committing a crime. The therapist-patient privilege likewise requires a therapist to keep their client's secrets. Any domestic violence attorney worth their salt is quite familiar with the marital privilege. This privilege has ancient roots in the English common law and it forbids one spouse from testifying against another. So, for example, at common law, if one spouse were charged with domestic violence against the other, the defendant spouse, or their domestic violence attorney, could raise the marital privilege to keep the other spouse from testifying in court.



The marital privilege exists today in California and is found in Section 971 of the California Evidence Code. The section reads: "Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by the adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship." The plain language of this statute means that, in a domestic violence trial, a defendant's domestic violence attorney could prevent the other spouse from testifying by raising the marital privilege on the defendant's behalf.



However, the California legislature, much to the chagrin of domestic violence attorneys and their clients, added another law to limit the marital privilege. Evidence Code Section 972 prohibits the marital privilege from being raised in any court proceeding where one spouse is accused of perpetrating a crime against the other spouse. Therefore, a domestic violence attorney can no longer raise the marital privilege at a domestic violence trial.



Now, if the victim spouse no longer wishes to testify against their defendant spouse, the District Attorney will simply serve the victim with a subpoena. This is a court order compelling the victim to testify. If the victim still refuses to testify they can be jailed for contempt. However, serving the victim with a subpoena can be tricky. A subpoena is only valid if it is personally served upon the victim. If the DA simply mails a subpoena to the victim, which is their practice, it is not valid unless the victim specifically acknowledges receiving it. If the victim cannot be located the defendant's domestic violence attorney can move for a dismissal of the case.



If you would like to speak with an experienced Orange County domestic violence attorney call The Law offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation.