Monday, October 16, 2006
Officer May Be Questioned in Investigation of Officer Spouse—Lockyer
By KENNETH OFGANG, Staff Writer
A peace officer married to a fellow officer may not refuse to answer questions about his or her spouse’s conduct as part of an internal investigation, Attorney General Bill Lockyer said.
Neither of the marital privileges set forth in the California Evidence Code applies to internal investigations, Lockyer explained in an opinion requested by Monterey County Sheriff Mike Kanalakis and made public Friday.
The attorney general explained that there are two distinct privileges—the Sec. 980 privilege “to refuse to disclose, and to prevent another from disclosing, a communication...made in confidence between [the person claiming the privilege] and [his or her] spouse while they were husband and wife,” and the broader privilege under Secs. 970 and 971 to refuse to be a witness against one’s spouse in any proceeding to which the spouse is a party.
Both privileges, Lockyer explained, are limited to “proceedings.” A police internal affairs investigation is not a proceeding, in the sense envisioned by the Evidence Code, because testimony cannot be compelled by subpoena, he added.
The attorney general went on to say that an officer who refuses to answer investigator’s questions about his or her spouse may be disciplined, provided that the officer is informed of that possibility and persists in refusing, as required by the Public Safety Officers Procedural Bill of Rights Act.
The situation is similar to that in which an officer refuses to answer investigators’ questions based on an assertion of the privilege of self-incrimination, Lockyer said. There, courts have held that the officer’s constitutional rights are protected as long as he or she is immunized against the use of his or her responses against him or her in a criminal prosecution, and has no privilege to refuse to answer questions where such immunity has been granted.
The attorney generally also concluded that if a peace officer makes a statement disclosing a marital communication, but then refuses to testify in a subsequent disciplinary proceeding, the earlier statement may be introduced.
“Here, the subsequent proceeding is a continuation of the internal affairs investigation and the disciplinary action taken by the law enforcement agency; it involves the same parties. This proceeding is to be distinguished from a criminal prosecution or a separate civil action that does not involve a challenge to the disciplinary action taken by the agency. As such, the proceeding, directly resulting from an appeal by the disciplined peace officer, represents merely a phase or stage of the same overall administrative inquiry into the circumstances of the alleged misconduct and the propriety of the agency’s disciplinary action taken in response thereto....
“In this context, then, any reviewing body, whether an administrative tribunal or a court, would plainly be unable to fairly evaluate the justifications for or the appropriateness of the law enforcement agency’s disciplinary action if it were precluded, through a witness’s assertion of a privilege, from considering statements or other evidence that the agency’s investigators properly acquired during the internal affairs investigation and that the agency was entitled to, and did, consider in imposing the disciplinary action.”
The opinion, No. 05-903, was prepared for Lockyer by Deputy Attorney General Daniel G. Stone.
Copyright 2006, Metropolitan News Company