spousal rights - testifying?

undefinedWhat is the name of your state?California

My husband is a felon from 18 yrs ago. He has been depressed and I believe he is suffering from bi-polar. he had over dosed on his pain medication/sleeping pills and i called for an ambulance, while i was on the phone with them i noticed a hand gun in his back pocket i said oh ---- he has a gun, so they dispatched the sheriff as well. now the distric attornies office is pressing charges against him for having pocession of a fire-arm. I have been subpoenad to testify and if i do he will spend alot of time in prison. does any one have any advice. my husbands attorney has advised me to pleade the 5 th ammendment. but i don't see how that applies here. what are spousal rights?

[ptlmejo]

From the CA state statues...

CALIFORNIA CODES
EVIDENCE CODE
SECTION 970-973

970. Except as otherwise provided by statute, a married person has
a privilege not to testify against his spouse in any proceeding.

971. 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 an 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.

972. A married person does not have a privilege under this article
in:
(a) A proceeding brought by or on behalf of one spouse against the
other spouse.
(b) A proceeding to commit or otherwise place his or her spouse or
his or her spouse's property, or both, under the control of another
because of the spouse's alleged mental or physical condition.
(c) A proceeding brought by or on behalf of a spouse to establish
his or her competence.
(d) A proceeding under the Juvenile Court Law, Chapter 2
(commencing with Section 200) of Part 1 of Division 2 of the Welfare
and Institutions Code.
(e) A criminal proceeding in which one spouse is charged with:
(1) A crime against the person or property of the other spouse or
of a child, parent, relative, or cohabitant of either, whether
committed before or during marriage.
(2) A crime against the person or property of a third person
committed in the course of committing a crime against the person or
property of the other spouse, whether committed before or during
marriage.
(3) Bigamy.
(4) A crime defined by Section 270 or 270a of the Penal Code.
(f) A proceeding resulting from a criminal act which occurred
prior to legal marriage of the spouses to each other regarding
knowledge acquired prior to that marriage if prior to the legal
marriage the witness spouse was aware that his or her spouse had been
arrested for or had been formally charged with the crime or crimes
about which the spouse is called to testify.
(g) A proceeding brought against the spouse by a former spouse so
long as the property and debts of the marriage have not been
adjudicated, or in order to establish, modify, or enforce a child,
family or spousal support obligation arising from the marriage to the
former spouse; in a proceeding brought against a spouse by the other
parent in order to establish, modify, or enforce a child support
obligation for a child of a nonmarital relationship of the spouse; or
in a proceeding brought against a spouse by the guardian of a child
of that spouse in order to establish, modify, or enforce a child
support obligation of the spouse. The married person does not have a
privilege under this subdivision to refuse to provide information
relating to the issues of income, expenses, assets, debts, and
employment of either spouse, but may assert the privilege as
otherwise provided in this article if other information is requested
by the former spouse, guardian, or other parent of the child.
Any person demanding the otherwise privileged information made
available by this subdivision, who also has an obligation to support
the child for whom an order to estabish, modify, or enforce child
support is sought, waives his or her marital privilege to the same
extent as the spouse as provided in this subdivision.

973. (a) Unless erroneously compelled to do so, a married person
who testifies in a proceeding to which his spouse is a party, or who
testifies against his spouse in any proceeding, does not have a
privilege under this article in the proceeding in which such
testimony is given.
(b) There is no privilege under this article in a civil proceeding
brought or defended by a married person for the immediate benefit of
his spouse or of himself and his spouse.

Based upon this, I would say no, you can not be compelled to testify.

[CdwJava]

However, the reported crime was initiated BY her ... which is one of the exceptions to privelege. Had she never mentioned the firearm, then it might not be an issue. And of course, the privelege is also not applied in mental health commitments and it sounds like this was likely for a W&I 5150 hold (mental health evaluation).

Besides, they likely won't need her testimony because he had it when the officers were there ... unless she took and hid the gun - in which case the privelege also does not apply because she would have become a party to a crime herself. Though she would have a 5th Amendment right, the spousal privelege might be moot at that point.

Without knowing more details, its really not going to be easy to say whether the privelege applies here or not.

Its actually pretty hard to apply ... I have personally rarely heard of it being applied.

Carl