BILL NUMBER: AB 653	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 30, 2009
	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 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   Dept.  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 
punishable by a suspension of 15 days or more  , 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) 
    (2)  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. 
   (3) The sheriff or chief of police personally approves the
discipline despite the assertion of the marital privilege. 
   (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.