BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 653
Assemblymember Feuer
As Amended May 20, 2009
Hearing Date: June 23, 2009
Evidence Code
KB:jd
SUBJECT
Evidence: Marital Privilege
DESCRIPTION
This bill would provide that a peace officer who asserts
evidentiary marital privileges shall not be subject to
administrative discipline for failure to report information to
his or her supervisor or department, except when specified
conditions apply.
BACKGROUND
In Riverside County Sheriff's Department v. Zigman, (2008) 169
Cal.App.4th, the Court of Appeal, Fourth Appellate District held
that the marital evidentiary privilege set forth in Evidence
Code Section 980 did not apply in law enforcement administrative
investigations and hearings. In Zigman, a deputy was
disciplined for failing to inform her supervisors of her
husband's admission that he used and stole methamphetamine from
persons he arrested. The County Sheriff's Department began
investigating the deputy's husband after they received an
anonymous tip, and he was eventually caught in a sting operation
stealing six grams of methamphetamine from what he thought was a
crime scene. The initial arbitrator concluded that the
communication between the deputy and her husband was protected
by the marital privilege. However, the court determined that
the marital communications privilege did not apply in law
enforcement administrative investigations because they were not
proceedings in which testimony can be compelled to be given by a
subpoena. (Id. at 769-771.) Although the court found that an
administrative appeal is such a proceeding, the court concluded
(more)
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that the same rules of privilege had to be used in the
administrative appeal as in the investigation, so as to make the
appeals process meaningful and effectuate the purpose of the
statutory protection of peace officers' procedural rights.
(Id.)
This bill would overrule the appellate court's decision to the
extent that it holds that the marital evidentiary privilege is
not available to peace officers in administrative disciplinary
investigations and hearings.
This bill has been double referred to the Senate Committee on
Public Safety.
CHANGES TO EXISTING LAW
Existing law generally governs law enforcement agencies
conducting internal affairs investigations of peace officers.
(Gov. Code Secs. 3300-3313.) Existing law also provides for the
protection of peace officers' procedural rights in these
investigations. (Gov. Code Sec. 3304.)
Existing law provides that, except as otherwise provided by
statute, a married person has a privilege not to testify against
his spouse in any proceeding. (Evid. Code Sec. 970.)
Existing law 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 relationship. (Evid. Code Sec. 971.)
Existing law 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.
(Evid. Code Sec. 972.)
Existing law 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
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person for the immediate benefit of his spouse or of himself and
his spouse. (Evid. Code Sec. 973.)
Existing law 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. (Evid. Code Sec. 980.)
Existing law provides that this privilege does not apply in the
following circumstances: (1) if the communication was made to
enable or aid anyone to commit or plan to commit a crime or a
fraud; (2) 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; (3)
in a proceeding brought by or on behalf of either spouse to
establish his competence; (4) in specified proceedings by or on
behalf of one spouse against the other spouse; (5) in a
proceeding between a surviving spouse and a person who claims
through the deceased spouse; or (6) 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. (Evid. Code Secs. 981-987.)
This bill would provide 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:
a) 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;
b) 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
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disciplinary investigation or hearing; and
c) The sheriff or chief of police personally approves the
discipline in writing.
This bill would provide that the provisions of this bill do not
apply if the peace officer is a percipient witness to the
misconduct at issue.
This bill would provide that nothing in this bill 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.
This bill contains legislative findings and declarations
outlining the policy considerations for marital evidentiary
privileges.
This bill would declare the intent of the Legislature that this
bill shall only apply to administrative disciplinary
investigations and hearings, and not to other civil or criminal
proceedings.
COMMENT
1. Stated need for the bill
According to the author, while peace officers have a unique role
and special responsibilities, their marriages are also worthy of
support and protection of the traditional and longstanding
marital privilege. The author asserts that this bill is needed
to restore a proper balance between the respect that should be
afforded the marital relationship, and the officer's
relationship with and duties to his or her department and the
public. The author further states that an officer should not be
subject to discipline for failing to come forward with
information against his or her spouse except where there is an
overriding public interest and top management determines that
discipline is warranted
2. This bill seeks to balance the public interest in
evidentiary marital privileges and effective internal
investigations of peace officers
Unless otherwise provided by statute, no person has a privilege
to refuse to be a witness, refuse to disclose any matter or
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refuse to produce any writing or object, or refuse that another
person be a witness or disclose evidence. (Evid. Code Sec.
911.) An evidentiary privilege permits an otherwise competent
witness to refuse to testify and/or prevent another from
testifying. Privileges are policy exclusions, unrelated to the
reliability of the information involved, which are granted
because it is considered more important to keep that information
confidential than it is to require disclosure. (Evid. Code Sec.
910, Comment.) Thus, an applicable privilege protects against
the compelled disclosure of information no matter how relevant
it is to the issues. Because they tend to suppress otherwise
relevant evidence, the statutory privileges are strictly
construed. (Evid. Code Sec. 911, Comment; Sullivan v. Sup. Ct.
(Spingola) 29 Cal.App.3d 64 (1972).) Except as otherwise
provided by statute, the statutory privileges may be asserted in
all proceedings in which testimony may be compelled, such as
investigations, inquiries, and administrative proceedings, as
well as trials. (Evid. Code Secs. 901, 910; Sec. 910, Comment;
Southern California Gas Co. v. California Pub. Util. Comm'n
(1990) 50 Cal.App.3d 31, 38.)
Under existing law, a married individual has a privilege not to
testify against his or her spouse in any proceeding, and a
privilege not to be called as a witness in any proceeding to
which his spouse is a party (Evid. Code Secs. 970-971). In
addition, a spouse has a privilege during and after the marital
relationship to refuse to disclose, and to prevent another from
disclosing, a confidential marital communication made between
spouses when the marriage was still intact. (Evid. Code Sec.
980.) The rationale for these privileges is that "such
testimony would seriously disturb or disrupt the marital
relationship. Society stands to lose more from such disruption
than it stands to gain from the testimony which would be
available if the privilege did not exist." (Evid. Code Sec.
970, Comment.) In addition, "[f]ree and open communication
between spouses would be unduly inhibited if one of the spouses
could be compelled to testify as to the nature of such
[confidential] communications after the termination of the
marriage." (Evid. Code Sec. 980, Comment.)
The Public Safety Officers Procedural Bill of Rights Act (Act)
generally governs law enforcement agencies conducting internal
affairs investigations of peace officers, and requires that
agencies afford minimum procedural rights to their peace officer
employees. (Gov. Code Secs. 3300-3313.) The investigation of
alleged police misconduct is important, not only to public
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safety, but also to promote public confidence in the integrity
of the law enforcement system. (See Pasadena Police Officers
Assn v. City of Pasadena (1990) 51 Cal.3d 564, 571-572
["Historically, peace officers have been held to a higher
standard than other public employees, in part because they alone
are the 'guardians of peace and security of the community, and
the efficiency of our whole system, designed for the purpose of
maintaining law and order, depends upon the extent to which such
officers perform their duties and are faithful to the trust
reposed in them.' To maintain the public's confidence in its
police force, a law enforcement agency must promptly,
thoroughly, and fairly investigate allegations of officer
misconduct; if warranted, it must institute disciplinary
proceedings." (citations omitted).)
As previously discussed, the Zigman court held that statutory
marital communications privilege does not apply in law
enforcement administrative proceedings. This bill would
abrogate the holding in Zigman and enable peace officers to
avail themselves of the marital privilege without fear of
discipline during administrative proceedings and investigations,
except in those circumstances which are compelling enough to
trump the public policy underlying the privilege.
Specifically, a peace officer who asserts the privilege of a
spouse 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. However, the qualified privilege
would not be available when all of the following are true: (a)
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 (b) 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 disciplinary decision is made at an appropriate level, this
bill would also require that the sheriff or chief of police
personally approve the discipline despite the assertion of the
marital privilege.
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The qualified marital privilege would thus not be available in
serious circumstances where the peace officer's testimony is
necessary to progress with an investigation or hearing. This
would ensure that investigations into serious allegations of
peace officers are not inhibited, while generally protecting
marital communications.
It is important to note that the provisions of this bill would
only apply to administrative disciplinary investigations and
hearings, and not to other civil or criminal proceedings.
Presumably, in those proceedings where a person's testimony
could be compelled with a subpoena the provisions of the general
marital privileges would apply. Further, this bill would
provide that the privilege does not apply if the peace officer
is a percipient witness to the misconduct at issue. Thus, a
peace officer who is an eyewitness to the misconduct being
investigated could not escape discipline by asserting marital
privilege and refusing to cooperate with the investigation.
Support : California Fraternal Order of Police; Long Beach
Police Officers Association; Los Angeles County Professional
Peace Officers Association; Peace Officers Research Association
of California; Santa Ana Police Officers Association; Los
Angeles Police Protective League
Opposition : None Known
HISTORY
Source : Association for Los Angeles Deputy Sheriffs; Los
Angeles Probation Officers' Union; Riverside Sheriffs'
Association
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Public Safety Committee (Ayes 7, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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