ATTORNEY GENERAL OPINION: 05-903, (October 12, 2006)

1. The privilege for confidential marital communications does not apply when a married peace officer is being interrogated during a law enforcement agency's internal affairs investigation of alleged police misconduct by the peace officer's spouse.

2. If a married peace officer asserts the privilege for confidential marital communications during an internal affairs interrogation, and refuses a direct order to answer the investigator's questions, the law enforcement agency may take disciplinary action against the officer after informing him or her that a failure to answer may result in punitive action.

3. If a peace officer has disclosed confidential marital communications during an internal affairs investigation in order to avoid disciplinary action, and use of the marital communications in the investigation results in disciplinary action against the peace officer's spouse, who thereafter challenges the agency's action in an administrative or court proceeding wherein the peace officer witness asserts the privilege not to testify against the spouse, the law enforcement agency may introduce the previously disclosed marital communications to support its disciplinary action in the subsequent proceeding.