Amended in Assembly April 18, 2013

Amended in Assembly April 4, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1250

Introduced by Assembly Member Perea

February 22, 2013

An act to begin delete add Article 12 (commencing with Section 1064) to Chapter 4 of Division 8 end delete begin insert amend Section 1041 end insert of the Evidence Code, relating to privileged communications.

LEGISLATIVE COUNSEL’S DIGEST

AB 1250, as amended, Perea. Privileged communications: begin delete crime stopper privilege. end delete begin insert official information: identity of informer. end insert

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Existing law provides that a public entity has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a law of the United States or of the State of California or of a public entity in the state, and to prevent another from disclosing the identity of that person, as specified. Under existing law, the privilege applies only if the information is furnished in confidence to a law enforcement officer, to a representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated, or to a person for the purpose of transmitting the information to a law enforcement officer or representative of an administrative agency.

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This bill would clarify that the term “person” includes a volunteer or employee of a crime stopper organization, as defined.

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Existing law provides several privileges against the compulsory release of certain types of information.

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This bill would provide that a person shall not be required to disclose identifying information, as defined, regarding a tipster who submits statements of alleged criminal activity to a crime stopper organization, as defined, or to produce any records, documentary evidence, opinions, or decisions relating to the identifying information in connection with any criminal proceeding by way of any discovery procedure. The bill also would authorize, in a criminal proceeding, the defendant and the district attorney to petition the court by noticed motion for an in camera review of the record or report containing the privileged communication, as specified, to determine on the basis of certain facts alleged in the petition if the record or report contains evidence that is exculpatory to the defendant in the trial of that offense. The bill would authorize a court to order production and disclosure to the petitioner’s attorney as it deems appropriate, so long as identifying information is not disclosed. The bill would prohibit disclosure of the documents to certain individuals, except as specified, and would, if the petitioner is acting as his or her own attorney, require the court to order the production of documents to a private investigator licensed by the Department of Consumer Affairs and appointed by the court or to impose other reasonable restrictions, as specified.

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Section 28 of Article I of the California Constitution provides that relevant evidence shall not be excluded in any criminal proceeding except as provided by statute enacted by a 2⁄3 vote of the membership of each house of the Legislature.

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Because this bill would limit the admissibility of evidence in criminal proceedings, it would require a 2⁄3 vote.

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Vote:  begin delete ²⁄₃ end delete begin insert majority end insert . Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 1041 of the end insert begin insert Evidence Code end insert begin insert is amended
to read: end insert

1041.  

(a) Except as provided in this section, a public entity
has a privilege to refuse to disclose the identity of a person who
has furnished information as provided in subdivision (b) purporting
to disclose a violation of a law of the United States or of this state
or of a public entity in this state, and to prevent another from
disclosing begin delete such end delete begin insert the person’s end insert identity, if the privilege is claimed
by a person authorized by the public entity to do so begin delete and: end delete begin insert and either
of the following apply: end insert

(1) Disclosure is forbidden by an act of the Congress of the
United States or a statute of this begin delete state; or end delete begin insert state. end insert

(2) Disclosure of the identity of the informer is against the public
interest because begin delete there is a end delete begin insert the end insert necessity for preserving the
confidentiality of his begin insert or her end insert identity begin delete that end delete outweighs the necessity
for disclosure in the interest of begin delete justice; but no end delete begin insert justice. The end insert privilege
begin delete may end delete begin insert shall not end insert be claimed under this paragraph if begin delete any end delete begin insert a end insert person
authorized to do so has consented that the identity of the informer
be disclosed in the proceeding. In determining whether disclosure
of the identity of the informer is against the public interest, the
interest of the public entity as a party in the outcome of the
proceeding begin delete may end delete begin insert shall end insert not be considered.

(b)  begin delete This end delete begin insert The privilege described in this end insert section applies only if
the information is furnished in confidence by the informer begin delete to: end delete begin insert to
any of the following: end insert

(1) A law enforcement begin delete officer; end delete begin insert officer. end insert

(2) A representative of an administrative agency charged with
the administration or enforcement of the law alleged to be begin delete violated;
or end delete begin insert violated. end insert

(3) Any person for the purpose of transmittal to a person listed
in paragraph (1) or (2). begin insert As used in this paragraph, “person”
includes a volunteer or employee of a crime stopper organization. end insert

(c)  begin delete There is no end delete begin insert The end insert privilege begin delete under end delete begin insert described in end insert this section
begin insert shall not be construed end insert to prevent the informer from disclosing his
begin insert or her end insert identity.

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(d) As used in this section, “crime stopper organization” means
a private, nonprofit organization that accepts and expends
donations used to reward persons who report to the organization
information concerning alleged criminal activity, and forwards
the information to the appropriate law enforcement agency.

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SECTION 1.  

Article 12 (commencing with Section 1064) is
added to Chapter 4 of Division 8 of the Evidence Code, to read:

 

Article 12.  Crime Stopper Privilege

 

1064.  

As used in this article, the following definitions apply:

(a) “Crime stopper organization” means a private, nonprofit
organization that accepts and expends donations for rewards to
persons who report to the organization information concerning
alleged criminal activity and that forwards the information to the
appropriate law enforcement agency.

(b) “Identifying information” means information that identifies
a person who submits a statement of alleged criminal activity to
a crime stopper organization by name, address, or telephone
number, and includes other information that would allow someone
to easily ascertain the identity of the person.

(c) “Privileged communication” means any statement,
information, or identifying information submitted by a tipster to
a crime stopper organization for the purpose of reporting alleged
criminal activity.

(d) “Tipster” means a person who provides a crime stopper
organization with a statement or information regarding alleged
criminal activity by any means including, but not limited to, by
writing, telephone, text, e-mail, or other electronic means.

1065.  

(a) A person shall not be required to disclose identifying
information, by way of testimony or otherwise, or to produce,
under subpoena, any records, documentary evidence, opinions, or
decisions relating to the identifying information in connection with
a criminal proceeding by way of any discovery procedure.

(b) In a criminal proceeding, the defendant and the district
attorney may petition the court by noticed motion for review of
the record or report containing the privileged communication. The
motion shall be accompanied by a declaration under penalty of
perjury that the record or report contains evidence that is
exculpatory to the defendant in the trial of that offense. Upon the
filing of the motion, the court may subpoena the record or the
report from the crime stopper organization. The court shall conduct
an in camera hearing to determine if the record or report contains
evidence that is exculpatory to the defendant in the trial of that
offense. A party shall not obtain the privileged communication
through a criminal or civil subpoena duces tecum.

(1) The court shall determine if any of the documents relating
to the privileged communication may be relevant to the issue of
the petitioner’s guilt or punishment or to any motions to suppress
that may be brought by the petitioner.

(2) If the court determines, pursuant to paragraph (1) that any
of the documents relating to the privileged communication may
be relevant, it may order their production and disclosure to the
petitioner’s attorney as the court deems appropriate, so long as
identifying information is not disclosed.

(A) If the court orders the production of documents relating to
a privileged communication, the petitioner’s attorney shall not
disclose the documents to the petitioner, members of the
petitioner’s family, or any other person unless specifically
permitted to do so by the court after a hearing and upon a showing
of good cause.

(B) Notwithstanding subparagraph (A), the petitioner’s attorney
may disclose or permit to be disclosed documents relating to a
privileged communication to persons employed by the attorney or
to persons appointed by the court to assist in the preparation of the
petitioner’s case if disclosure is required for that purpose. The
attorney shall inform all persons provided with the documents that
further dissemination of the documents is prohibited, except as
provided by this section.

(C) If the petitioner is acting as his or her own attorney, the
court shall only order the production of documents relating to a
privileged communication to a private investigator licensed by the
Department of Consumer Affairs and appointed by the court or
impose other reasonable restrictions, absent a showing of good
cause as determined by the court.

(c) Notwithstanding subdivisions (a) and (b), identifying
information and privileged communications may be released with
the permission of the person who submitted the statement to the
crime stoppers organization.

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