BILL ANALYSIS
AB 653
Page 1
Date of Hearing: May 5, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 653 (Feuer) - As Amended: April 30, 2009
PROPOSED CONSENT
SUBJECT : EVIDENCE: MARITAL PRIVILEGE
KEY ISSUE : SHOULD THE MARITAL PRIVILEGE THAT HAS TRADITIONALLY
PROTECTED SPOUSES FROM BEING REQUIRED TO TESTIFY AGAINST ONE
ANOTHER CONTINUE TO BE RECOGNIZED FOR LAW ENFORCEMENT OFFICERS
IN APPROPRIATE CIRCUMSTANCES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
A recent court of appeals decision held for the first time that
the longstanding evidentiary marital privilege does not apply in
an administrative proceeding involving an officer who was under
investigation for failing to come forward with information about
alleged misconduct by her spouse, which was known to her as the
result of otherwise privileged marital communications. This
bill would clarify that peace officers continue to enjoy at
least a qualified privilege in those circumstances, except where
there are overriding public interests and top management
determines that administrative discipline is appropriate despite
the assertion of the privilege. Supporters contend that the
bill is needed to restore appropriate balance among important
relationships and societal values. There is no known
opposition.
SUMMARY : Reinforces the evidentiary privilege of spouses in the
context of law enforcement employment. Specifically, this bill :
1)Finds and declares, consistently with case law, 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. Further finds and declares,
as recognized by the California Law Revision Commission, that
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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.
2)Provides that a peace officer who asserts the privilege of a
spouse under Evidence Code sections 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; and (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. In order to ensure
that this decision is made at an appropriate level with due
concern for the issues at stake, the bill also requires that
the sheriff or chief of police personally approve the
discipline. Clarifies that this provision does not apply if
the peace officer is a percipient witness to the misconduct at
issue.
3)Provides that this act applies only to administrative
disciplinary investigations and hearings, and not to other
civil or criminal proceedings.
EXISTING LAW :
1)Provides that, except as otherwise provided by statute, a
married person has a privilege not to testify against his
spouse in any proceeding. (Evidence Code section 970. All
further statutory references are to this Code.)
2)Provides that 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 unless the party calling the
spouse does so in good faith without knowledge of the marital
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relationship. (Section 971.)
3)Provides that a married person does not have the foregoing
privilege in certain proceedings brought by or on behalf of
one spouse against the other spouse, in Juvenile Court
proceedings, specified criminal proceedings, and certain
proceedings brought against the spouse by a former spouse.
(Section 972.)
4)Provides that 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 the privilege in the proceeding in which such
testimony is given, and that there is no such privilege in a
civil proceeding brought or defended by a married person for
the immediate benefit of his spouse or of himself and his
spouse. (Section 973.)
5)Provides that, except as otherwise specified, a spouse (or his
guardian or conservator when he has a guardian or
conservator), whether or not a party, has a privilege during
the marital relationship and afterwards to refuse to disclose,
and to prevent another from disclosing, a communication if he
claims the privilege and the communication was made in
confidence between him and the other spouse while they were
husband and wife. (Section 980.)
6)Provides that this privilege does not apply in the following
circumstances: if the communication was made to enable or aid
anyone to commit or plan to commit a crime or a fraud; in any
proceeding to commit either spouse or otherwise place him or
his property, under the control of another because of his
alleged mental or physical condition; in a proceeding brought
by or on behalf of either spouse to establish his competence;
in specified proceedings by or on behalf of one spouse against
the other spouse; in a proceeding between a surviving spouse
and a person who claims through the deceased spouse; in
specified criminal proceedings, including a criminal
proceeding in which the communication is offered in evidence
by a defendant who is one of the spouses between whom the
communication was made; and in a proceeding in Juvenile Court.
(Sections 981-987.)
COMMENTS : The author explains the need for the bill as follows:
Recently in Riverside County Sheriffs Department v. Zigman
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(2008) 169 Cal App 4th 763, one district court of appeal held
for the first time that the statutory marital privilege in
Evidence Code section 980 does not apply to a peace officer who
was under administrative investigation by her department. As a
result, the officer was required to provide information
regarding a marital communication. Prior to Zigman, it was
believed that such privileged communications were not admissible
in these administrative proceedings. The author contends that
the traditional marital privilege protects one of society's most
valued institutions, and that this bill is needed to restore a
proper balance between the respect to be afforded the marital
relationship and the officer's relationship with and duties to
his or her department, the employing state or local government
agency, and the general public.
Qualified Marital Privilege For Peace Officers. AB 653
recognizes a qualified marital privilege for peace officers in
administrative proceedings. In lieu of the absolute marital
privilege that otherwise applies to all other parties in covered
proceedings, this bill creates a more limited privilege
regarding administrative proceedings involving failure to report
information to a supervisor or department. This qualified
privilege may be surmounted under the following circumstances:
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; and 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. In order
to ensure that this decision is made at an appropriate level
with due concern for the issues at the stake, the bill also
requires that the sheriff or chief of police personally approve
the discipline despite the assertion of the marital privilege.
The bill expressly provides that it applies only to
administrative disciplinary investigations and hearings, and not
to other civil or criminal proceedings. The bill is further
limited in that it provides that the privilege does not apply if
the peace officer is a percipient witness to the misconduct at
issue.
ARGUMENTS IN SUPPORT: Co-sponsors Association for Los Angeles
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Deputy Sheriffs, Los Angeles Probation Officers' Union, and
Riverside Sheriffs' Association, among others, write in support
of the bill:
AB 653 addresses the "married cop penalty." Presently in
Riverside County Sheriffs' Department v Zigman the 4th
District Court of Appeal held that the marital privilege
found in Evidence Code Section 980 did not apply to a peace
officer who was under investigation and required to provide
information regarding a marital communication, or to a
peace officer whose spouse was under investigation and was
required to reveal a marital communication. In lieu of an
absolute marital privilege in administrative disciplinary
proceedings, AB 653 sets forth several reasonable
conditions that must be addressed before an officer or an
officer's spouse can be interrogated regarding marital
confidential communications. The marital privilege
protects one of society's most valued institutions. This
privilege has been utilized in other circumstances where it
has been balanced against even horrific conduct, where
society had an interest in seeking the truth regarding an
event, but the privilege prevented revelation of the
marital communication. California's peace officers should
not be unfairly penalized simply because they choose to
marry a fellow peace officer. AB 653 balances against
unwarranted abuses or unreasonable intrusion by management.
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REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs (co-sponsor)
Los Angeles Probation Officers' Union (co-sponsor)
Riverside Sheriffs' Association (co-sponsor)
AFSCME
California Fraternal Order of Police,
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Santa Ana Police Officers Association
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334