BILL NUMBER: AB 653	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 13, 2009

INTRODUCED BY   Assembly Member Feuer

                        FEBRUARY 25, 2009

   An act to  add Article 5.5 (commencing with Section 988) to
Chapter 4 of Division 8 of the Evidence Code,   relating to
evidence.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 653, as amended, Feuer. Evidence: marital privilege.
   Existing law provides that a spouse has a privilege during the
marital relationship and afterwards to refuse to disclose, and to
prevent another from disclosing, a communication if the spouse claims
the privilege and the communication was made in confidence between
the spouses while they were husband and wife.  A married person
also has a privilege not to testify against his or her spouse in any
proceeding and, when the spouse is a party to a proceeding, 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. 
   This bill would  declare the intent of the Legislature to
enact legislation to address the opinion of the Court of Appeal in
Riverside County Sheriff's Dept. v. Zigman (2008) 169 Cal.App.4th
763, regarding the loss of marital privilege in law enforcement
administrative investigations and hearings   provide
that a peace officer who asserts any of the marital privileges
described above shall not be subject to administrative discipline for
failure to report information to his or her supervisor or
department, except when the information concerns criminal or certain
other conduct of the peace officer's spouse, who is also a peace
officer employed by the department, and other specified conditions
apply  .
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    (a) The Legislature finds and declares
that the time-honored privilege not to testify against one's spouse
is grounded on the premise that compelled testimony of a spouse
would, in many cases, seriously disturb if not completely disrupt the
marital relationship (People v. Sinohui (2002) 28 Cal.4th 205). As
the California Law Revision Commission has commented with respect to
Section 970 of the Evidence Code, society generally stands to lose
more as the result of that disruption than it stands to gain from the
testimony that would be available if the privilege did not exist.
 
   (b) It is the intent of the Legislature that this act shall apply
only to administrative disciplinary investigations and hearings, and
not to other civil or criminal proceedings. It is the further intent
of the Legislature to overrule Riverside County Sheriff's Department
v. Zigman (2008) 169 Cal.App.4th 763 to the extent that it is
inconsistent with this act. 
   SEC. 2.    Article 5.5 (commencing with Section 988)
is added to Chapter 4 of Division 8 of the   Evidence Code
  , to read:  

      Article 5.5.  Marital Privilege in Peace Officer Administrative
Disciplinary Investigations and Hearings


   988.  (a) A peace officer who asserts the privilege of a spouse
under Section 970, 971, or 980 to refuse to testify or be called as a
witness against his or her spouse, or to disclose confidential
marital communications, shall not be subject to administrative
discipline for failure to report information to his or her supervisor
or department, except when all of the following are true:
   (1) The information concerns conduct of the peace officer's
spouse, who is also a peace officer employed by the same department,
that is criminal or a serious violation of department policy, or
subjects the department to a specific and significant risk of civil
liability.
   (2) Failure to reveal the information creates a demonstrable risk
of harm to a third party or the public, including the department.
   (3) The interests of justice require disclosure of the information
because, after exercising reasonable diligence, independent evidence
does not otherwise appear to be reasonably available to proceed with
an administrative disciplinary investigation or hearing.
   (b) This section does not apply if the peace officer is a
percipient witness to the misconduct at issue.
   (c) Nothing in this section shall impair any right or privilege
pursuant to a memorandum of understanding between a department and a
certified bargaining unit representing peace officers, or limit their
ability to negotiate and agree to a higher standard of rights or
privileges.  
  SECTION 1.    It is the intent of the Legislature
to enact legislation to address the opinion of the Court of Appeal in
Riverside County Sheriff's Dept. v. Zigman (2008) 169 Cal.App.4th
763 regarding the loss of marital privilege in law enforcement
administrative investigations and hearings.