Jurcoane

Susan Jurcoane sought review of an order denying her marital privilege claim (Evid. Code, §§ 970-973) and requiring her to testify at a preliminary hearing to be conducted to determine whether her husband, Josif Jurcoane, committed two 1984 murders. We stayed Susan’s participation in any preliminary hearing and issued an order to show cause.

The issue is whether Susan may claim the marital testimonial privilege so that she need not testify against Josif. Josif fled California immediately after the killings and was charged a few days later. Susan and Josif never divorced and remain legally married. Susan had no contact with Josif for the 17 years since the killings. The magistrate overruled Susan’s privilege claim. Relying primarily on federal cases interpreting the Federal Rules of Evidence, the magistrate determined the marital privilege does not apply where a viable marital relationship no longer exists.

We conclude the California marital privilege contains no such limitation, which cannot be created by judicial interpretation. Only the Legislature could choose to add such an exception to the existing express statutory marital privilege exceptions listed in section…