California Assembly Bill AB1250 Amended / Bill

 BILL NUMBER: AB 1250AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 18, 2013 AMENDED IN ASSEMBLY APRIL 4, 2013 INTRODUCED BY Assembly Member Perea FEBRUARY 22, 2013 An act to  add Article 12 (commencing with Section 1064) to Chapter 4 of Division 8   amend Section 1041  of the Evidence Code, relating to privileged communications. LEGISLATIVE COUNSEL'S DIGEST AB 1250, as amended, Perea. Privileged communications:  crime stopper privilege.   official information: identity of informer.   Existing law provides that a public entity has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a law of the United States or of the State of California or of a public entity in the state, and to prevent another from disclosing the identity of that person, as specified. Under existing law, the privilege applies only if the information is furnished in confidence to a law enforcement officer, to a representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated, or to a person for the purpose of transmitting the information to a law enforcement officer or representative of an administrative agency.   This bill would clarify that the term "person" includes a volunteer or employee of a crime stopper organization, as defined.   Existing law provides several privileges against the compulsory release of certain types of information.   This bill would provide that a person shall not be required to disclose identifying information, as defined, regarding a tipster who submits statements of alleged criminal activity to a crime stopper organization, as defined, or to produce any records, documentary evidence, opinions, or decisions relating to the identifying information in connection with any criminal proceeding by way of any discovery procedure. The bill also would authorize, in a criminal proceeding, the defendant and the district attorney to petition the court by noticed motion for an in camera review of the record or report containing the privileged communication, as specified, to determine on the basis of certain facts alleged in the petition if the record or report contains evidence that is exculpatory to the defendant in the trial of that offense. The bill would authorize a court to order production and disclosure to the petitioner's attorney as it deems appropriate, so long as identifying information is not disclosed. The bill would prohibit disclosure of the documents to certain individuals, except as specified, and would, if the petitioner is acting as his or her own attorney, require the court to order the production of documents to a private investigator licensed by the Department of Consumer Affairs and appointed by the court or to impose other reasonable restrictions, as specified.   Section 28 of Article I of the California Constitution provides that relevant evidence shall not be excluded in any criminal proceeding except as provided by statute enacted by a 2/3 vote of the membership of each house of the Legislature.   Because this bill would limit the admissibility of evidence in criminal proceedings, it would require a 2/3 vote.  Vote:  2/3   majority  . Appropriation: no. Fiscal committee:  yes   no  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 1041 of the   Evidence Code   is amended to read:  1041. (a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing  such   the person's  identity, if the privilege is claimed by a person authorized by the public entity to do so  and:   and either of the following apply:  (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this  state; or  state.  (2) Disclosure of the identity of the informer is against the public interest because  there is a   the  necessity for preserving the confidentiality of his  or her  identity  that  outweighs the necessity for disclosure in the interest of  justice; but no   justice. The  privilege  may   shall not  be claimed under this paragraph if  any   a  person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding  may   shall  not be considered. (b)  This   The privilege described in this  section applies only if the information is furnished in confidence by the informer  to:   to any of the following:  (1) A law enforcement  officer;   officer.  (2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be  violated; or   violated.  (3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2).  As used in this paragraph, "person" includes a volunteer or employee of a crime stopper organization.  (c)  There is no   The    privilege  under   described in  this section  shall not be construed  to prevent the informer from disclosing his  or her  identity.  (d) As used in this section, "crime stopper organization" means a private, nonprofit organization that accepts and expends donations used to reward persons who report to the organization information concerning alleged criminal activity, and forwards the information to the appropriate law enforcement agency.   SECTION 1.   Article 12 (commencing with Section 1064) is added to Chapter 4 of Division 8 of the Evidence Code, to read: Article 12. Crime Stopper Privilege 1064. As used in this article, the following definitions apply: (a) "Crime stopper organization" means a private, nonprofit organization that accepts and expends donations for rewards to persons who report to the organization information concerning alleged criminal activity and that forwards the information to the appropriate law enforcement agency. (b) "Identifying information" means information that identifies a person who submits a statement of alleged criminal activity to a crime stopper organization by name, address, or telephone number, and includes other information that would allow someone to easily ascertain the identity of the person. (c) "Privileged communication" means any statement, information, or identifying information submitted by a tipster to a crime stopper organization for the purpose of reporting alleged criminal activity. (d) "Tipster" means a person who provides a crime stopper organization with a statement or information regarding alleged criminal activity by any means including, but not limited to, by writing, telephone, text, e-mail, or other electronic means. 1065. (a) A person shall not be required to disclose identifying information, by way of testimony or otherwise, or to produce, under subpoena, any records, documentary evidence, opinions, or decisions relating to the identifying information in connection with a criminal proceeding by way of any discovery procedure. (b) In a criminal proceeding, the defendant and the district attorney may petition the court by noticed motion for review of the record or report containing the privileged communication. The motion shall be accompanied by a declaration under penalty of perjury that the record or report contains evidence that is exculpatory to the defendant in the trial of that offense. Upon the filing of the motion, the court may subpoena the record or the report from the crime stopper organization. The court shall conduct an in camera hearing to determine if the record or report contains evidence that is exculpatory to the defendant in the trial of that offense. A party shall not obtain the privileged communication through a criminal or civil subpoena duces tecum. (1) The court shall determine if any of the documents relating to the privileged communication may be relevant to the issue of the petitioner's guilt or punishment or to any motions to suppress that may be brought by the petitioner. (2) If the court determines, pursuant to paragraph (1) that any of the documents relating to the privileged communication may be relevant, it may order their production and disclosure to the petitioner's attorney as the court deems appropriate, so long as identifying information is not disclosed. (A) If the court orders the production of documents relating to a privileged communication, the petitioner's attorney shall not disclose the documents to the petitioner, members of the petitioner's family, or any other person unless specifically permitted to do so by the court after a hearing and upon a showing of good cause. (B) Notwithstanding subparagraph (A), the petitioner's attorney may disclose or permit to be disclosed documents relating to a privileged communication to persons employed by the attorney or to persons appointed by the court to assist in the preparation of the petitioner's case if disclosure is required for that purpose. The attorney shall inform all persons provided with the documents that further dissemination of the documents is prohibited, except as provided by this section. (C) If the petitioner is acting as his or her own attorney, the court shall only order the production of documents relating to a privileged communication to a private investigator licensed by the Department of Consumer Affairs and appointed by the court or impose other reasonable restrictions, absent a showing of good cause as determined by the court. (c) Notwithstanding subdivisions (a) and (b), identifying information and privileged communications may be released with the permission of the person who submitted the statement to the crime stoppers organization.