Policy Text
TOM DaRé , CHIEF OF POLICE
Professional Standards Division NUMBER: 2020 -10
ISSUED: July 8 , 2020
Evidence Code 1040 and 1042 Training
The purpose of this training bulletin is provide officers with a basic understanding of the evidence
code 1040/1042 and how it is used. Often times patrol officers are requested to assist specialty
units in conducting “wall stops,” “cold stops,” or “investigative stops” that are vital to the success
of an on -going investigation. In many of these investigations, Confidential Informants (CI) are
used and protecting th eir identity and/or the information they are providing must remain
confidential and protected.
An officer conducting such stops may be required to testify in court about the circumstances of an
investigation where a CI is being used in one way or another . It is imperative that each officer
understands that using this information in court could potentially endanger a CI or divulge a
surveillance tactic that is commonly used during covert operations that the general public should
not be privy to. In cases like these, officers are expected to invoke their 1040/1042 privilege and
request an “in camera hearing” in order to protect the informants identity and/or surveillance
tactics that are crucial in conducting a successful investigation.
Evidence Code 1040
(a) As used in this section, “ official information” means information acquired in confidence by
a public employee in the course of his or her duty and not open, or officially disclosed, to the public
prior to the time the claim of privilege is made.
(b) A public entity has a privilege to refuse to disclose official information, and to prevent another
from disclosing official information, if the privilege is claimed by a person authorized by the public
entity to do so 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.
(2) Disclosure of the information is against the public interest because there is a
necessity for preserving the confidentiality of the information that outw eighs the
necessity for disclosure in the interest of justice ; but no privilege may be claimed under this
paragraph if any person authorized to do so has consented that the information be disclosed in
the proceeding. In determining whether disclosure of t he information is against the public
interest, the interest of the public entity as a party in the outcome of the proceeding may not be
considered.
TRAINING BULLETIN
Examples of “Official Information”
Surveillance tactics/techniques/personnel
Surveillance vehicle descrip tions
Surveillance equipment
Or any information that may jeopardize any investigative tool, technique, or tactic used
during an investigation.
Evidence Code 1042
(a) Except where disclosure is forbidden by an act of the Congress of the United States, if a claim
of privilege under this article by the state or a public entity in this state is sustained in a criminal
proceeding, the presiding officer shall make such order or finding of fact adverse to the public
entity bringing the proceeding as is required by law upon any issue in the proceeding to which the
privileged information is material.
(b) Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its
face, the public entity bringing a criminal proceeding is not required to reveal to the defendant
official information or the identity of an informer in order to establish the legality of the search or
the admissibility of any evidence obtained as a result of it.
(c) Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal
proceeding, any otherwise admissible evidence of information communicated to a peace officer by
a confidential informant, who is not a material witness to the guilt or innocence of the accused of
the offense charged, is a dmissible on the issue of reasonable cause to make an arrest or search
without requiring that the name or identity of the informant be disclosed if the judge or magistrate
is satisfied, based upon evidence produced in open court, out of the presence of the jury, that
such information was received from a reliable informant and in his discretion does not require such
disclosure.
(d) When, in any such criminal proceeding, a party demands disclosure of the identity of the
informant on the ground the informant is a material witness on the issue of guilt, the court shall
conduct a hearing at which all parties may present evidence on the issue of disclosure. Such
hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the
privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person
who is authorized to claim such privilege refuses to answer any question on the ground that the
answer would tend to disclose the identity of the informant, the pros ecuting attorney may request
that the court hold an in camera hearing. If such a request is made, the court shall hold such a
hearing outside the presence of the defendant and his counsel. At the in camera hearing, the
prosecution may offer evidence which would tend to disclose or which discloses the identity of the
informant to aid the court in its determination whether there is a reasonable possibility that
nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in
camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any
physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court
may have access to its contents. The court shall not order disclo sure, nor strike the