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Courts Disagree Over Marital Testimonial Privilege Waivers

Courts Disagree Over Marital Testimonial Privilege Waivers
Photo by Sandy Millar / Unsplash

A married person has the right not to testify against that person’s spouse (Evidence Code § 971) and not to be called as a witness, if that person’s spouse is a party, by a party adverse to that person’s spouse (Evidence Code § 971). These are known as the testimonial privileges, which are different from the privilege protecting confidential marital communications (Evidence Code § 980). The purpose of these marital privileges is to encourage and preserve confidences between spouses and promote harmony.

The privileges not to testify and not to be called as a witness against one’s spouse are statutorily waived in a civil proceeding brought or defended by a married person for the “immediate benefit” of his or her spouse or both of them. (Evidence Code § 973(b).) However, courts disagree on how to apply the “immediate benefit” test. Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 748.

In Hand v. Sup. Ct. (1982) 134 Cal.App.3d 436, 439, the court held that a husband’s personal injury action was for the immediate benefit of his wife. The court reasoned that such damages are community property if the injury occurred during the marriage. Therefore, the non-injured spouse has a direct interest (“immediate benefit”) in the outcome and the privileges are waived.

The contrary view is that an “immediate benefit” to the married person must arise from a right that spouse holds directly and not merely because of a potential community property interest in any recovery the other spouse might obtain. Duggan v. Sup. Ct. (1981) 127 Cal.App.3d 267, 270-272. Because to apply  § 973(b) to all civil cases where a spouse is a party would effectively render the testimonial privileges meaningless.

Both Hand and Duggan are equally binding on the superior courts. People v. Charnley (2004) 117 Cal.App.4th 758, 767. Accordingly, as the Rutter guide on Civil Procedure advises, “...play it safe. To avoid a waiver by testimony [citation], always assert the testimonial privileges where they appear applicable and let the court resolve the issue.”