Witnesses, generally
Category > Witnesses, generally
Updated 2/26/2024Defendant’s confrontation clause rights were violated where the court positioned a computer monitor between the witness and defendant without a proper showing of necessity for the accommodation.Defendant was charged with child molest involving multiple victims. He argued a confrontation clause violation where the court positioned a computer monitor so that the defendant could not see the witnesses and they could not see him. The accommodation relating to F.R. was not justified by the record where she (as a young adult) began crying when she entered the courtroom requiring a short recess to allow her to compose herself. The record fell short of establishing a necessity that would justify an accommodation. Regarding the two other alleged victims, defendant forfeited the confrontation clause claim by failing to object at the time as the monitor could have been repositioned or the parties could have made a record of the issue following a proper objection.id: 26585
The trial court erred by allowing a juror who was excused after overhearing a witness’s cell phone conversation testify as a prosecution witness. A juror informed the court that he overheard a witness talking on a cell phone while in the bathroom. The court later excused that juror after investigating the matter. The trial court thereafter prejudicially erred when it permitted the excused juror to testify as a prosecution witness.id: 24158
The trial court prejudicially erred by failing to administer the oath to the custodian of records at a Pitchess hearing.The trial court’s failure to place the custodian of records under oath before he testified at the Pitchess hearing required a conditional reversal of the judgment.id: 22003
A showing of need must be made before a support person may accompany a sexual assault victim to the witness stand.Defendant argued that Penal Code section 868.5 allowing support persons for sexual assault victims is unconstitutional as applied because the support person's presence actually influenced the victim's testimony. He claimed that a support person should only be permitted to accompany the witness at the stand if a showing of necessity is made in advance. The court agreed that the use of the statutorily authorized special procedure must be based on a showing of the need of the individual witness. However, the lack of a showing in the instant case was not prejudicial given the substantial evidence of defendant's guilt separate and apart from the victim's testimony.id: 9914
Prisoner has a right to correspond confidentially with his Canadian attorney regarding his divorce.Pursuant to Penal Code section 2600, petitioner who is in state prison, has the right to correspond confidentially with his Canadian attorney regarding a Canadian divorce to which petitioner is a party.id: 12791
Error in ordering defense witnesses shackled was not prejudicial as it did not directly affect defendant's presumption of innocence.Defendant argued the trial court's action in ordering defense witnesses shackled during their testimony denied his constitutionally guaranteed presumption of innocence and precluded the jury from fairly evaluating the shackled witness' credibility. Shackling was erroneous because the court failed to demonstrate a manifest need to shackle the witnesses. However, shackling a witness does not implicate or directly affect defendant's presumption of innocence. Moreover, the error was harmless under the Watson standard given the overwhelming evidence of guilt.id: 12788
Counsel was deficient in failing to challenge the officer's testimony expressing an opinion as to the definition of the crimes, the fact that the crimes were committed, and defendant's guilt.The opinions of the testifying officer as to the definitions of robbery and extortion, the fact that the crimes were actually committed, and defendant's guilt were improper. Defense counsel was deficient in allowing the officer's testimony to go unchallenged. However, counsel's failure to challenge the improper opinion testimony did not require reversal where the properly admitted evidence supported every element of the charged crimes and the improper testimony did not affect the outcome of the trial.id: 12286
A conditional examination of a prosecution witness is permitted in a capital case when the witness' life is in jeopardy.Under Penal Code section 1335 the conditional examination of a prosecution witness is permitted in a capital case when the
witness's life is in jeopardy. The prosecution met its burden by submitting a declaration from the prosecutor stating the witness's life was in danger from defendant and others. It was not necessary to present evidence of any specific threats. Although defendant did not receive the required three day notice to which he was entitled, there was no prejudice where he had several days thereafter to present evidence contradicting the prosecutor's declaration.id: 18994
An indigent defendant cannot be denied an expert she needs where no one with the appropriate expertise is on the approved panel of experts.An indigent defendant admittedly entitled to and in need of an appointed expert (in this case a battered woman syndrome specialist) cannot be denied her choice of experts solely because the one with the expertise she needs is not on the trial court's approved panel of expert psychiatrists and psychologists - notwithstanding that none of the approved panel members have experience in the specialty needed for the defendant's case.id: 12783
Order allowing prosecution to refuse to disclose to the defense the identity of a witness both prior to and at trial, based on danger to the witness, violated the right to confront and cross-examine witnesses.The trial court erred in determining that, when the risk to a witness is sufficiently grave, the identity of the witness may be permanently withheld from a defendant and the witness may testify anonymously at trial - even when the witness is a crucial prosecution witness and withholding the witness' identity will significantly impair the defendant's ability to investigate and cross-examine the witnesses. The trial court may fashion a more limited order restricting or deferring disclosure of the witness' identity before trial (including limiting disclosure to defense counsel) as long as the order does not impermissibly impair defendant's right to confront and cross-examine the witnesses effectively at trial.id: 15846
Court erred by allowing adult alleged victim to testify behind a one-way glass without a showing that the witness's anxiety was due to defendant's presence.Defendant argued the trial court's decision to allow the use of a one-way glass during a portion of the testimony of the alleged sex offense victim, an adult, violated his rights to confrontation and due process. However, the trial court erred by consenting to the prosecutor's request to use the one-way glass, without holding an evidentiary hearing to determine whether, and to what extent, the testifying victim's apparent anxiety was due to the defendant's presence rather than, for instance, the witness's general emotional fragility or the trauma of testifying in court or revisiting a past experience the witness would rather not recall. The court here simply dispensed with the face-to-face confrontation based upon the prosecutor's unsworn representation that defendant's presence was part of the distraught adult witness's problem.id: 17282
Updated 3/4/2024The trial court did not coerce prosecution favorable testimony by reminding the witnesses of the need to tell the truth and having their lawyers remind them off record. The prosecutor did not commit misconduct by asking leading questions where witnesses claimed a lack of memory or willfully refused to recall. The witnesses were sufficiently “hostile” to justify leading questions. Moreover, the court and prosecution did not coerce favorable testimony by reminding witnesses they were under oath and required to tell the truth, and by privately asking their attorneys to speak with them about answering truthfully. id: 27730
Updated 2/7/2024The trial court was not required to conduct an evidence-based need assessment for the witness support person where that person was not also a witness.The trial court did not err in the procedures employed while allowing the presence of witness support persons. The trial court did not need to conduct an evidence-based need assessment where the support person was not a witness. Moreover, there was no confrontation clause violation where the support person initially blocked the jurors’ view of the witness where the court corrected the problem and ordered the support person to sit behind the witness.id: 27234
Updated 2/4/2024The trial court did not err in allowing a support dog for the witnesses who were adults at the time of trial.The trial court did not err in allowing the witnesses to be accompanied while testifying by a support dog under Penal Code section 868.4. The case involved charges of sexual abuse against minors, and it did not matter that the witnesses were adults when they testified about the alleged events that took place nine years earlier when they were minors. The record did not show any disruptions or problems involving the presence of the dog at trial.id: 27583
Defense counsel’s concern that a witness might be under the influence did not compel the trial court to order drug testing.Defense counsel stated a concern that a witness was under the influence, but the trial court refused to order drug testing. The court could have made the order but was not required to do so based on defense counsel’s comment.id: 25774
Testimony of child witnesses, who were found competent to testify, was not unreliable.Two children testified at defendant’s capital murder trial. One was five years old at the time of the victim’s death but six and one-half at the time of trial, and the other was three and one-half when the victim died, but five when she testified. Defendant argued the children’s testimony was unreliable, and the trial court failed to consider the effects of brainwashing and suggestive questioning. However, the court found the witnesses competent to testify, and credibility was a question for the jury. Defense counsel throughly cross-examined the children exploring the possibility of coaching or brainwashing. Moreover, other witnesses supported the testimony. It was not unreliable for purposes of due process or the Eighth Amendment.id: 25763
Young witness was found to be competent where she understood the duty to be truthful even though she made several “fantastical” statements.The five year-old molest victim was properly determined to be competent to testify given the evidence that she understood the difference between the truth and lies and understood her duty to tell the truth. Many of her “fantastical” statements were troubling but those related to her credibility rather than her competence.id: 24593
Defendant failed to establish the need to have a proposed defense witness transferred from an out-of-county prison before trial.Defendant argued the trial court erred by denying his request under Penal Code section 2621 for a removal order for a proposed defense witness, who was an inmate in an out-of-county prison at the time of trial, thereby preventing him from calling a necessary witness and violating his right to compulsory process. However, while the witness had said defendant was riding in the back seat of the car (an important fact) earlier in the day, he did not address where people were sitting at the time of the shooting. Defendant failed to establish the required necessity.id: 24389
The trial court did not err by allowing the probation officer who watched trial testify to rebut defendant’s claimed alibi.Defendant argued the trial court erred by allowing his former probation officer to testify in order to rebut defendant’s alibi. Defendant claimed the witness had violated the court’s order by attending court during his testimony. However, the record did not disclose a court order excluding potential witnesses from the courtroom. Even if there had been such an order, the fact that the probation officer had been in court before being designated as a witness was not grounds to prohibit him from testifying. The record did not show the prosecutor knew the probation officer would be a witness before defendant testified. id: 24242
The trial court did not err by excluding the testimony of a jail doctor where the defense was late in adding her name to the witness list and failed to establish the relevance of her testimony. Defendant argued the trial court erred by excluding the testimony of the treating physician at the jail to rebut the officer’s testimony that she was lucid at the time of the interrogation. But the defense was late in adding the doctor to the witness list and failed to establish how she could provide relevant testimony on defendant’s mental condition when interrogated.id: 24087
The trial court did not prejudicially err by instructing the jury not to consider that the witness was in shackles and in custody when evaluating his credibility.Defendant argued the trial court erred by instructing the jury not to consider the fact that a prosecution witness was shackled and in custody when evaluating his credibility. Any error in giving the instruction was harmless given the other instructions and the fact that the jury almost certainly viewed the witness’s testimony with caution and considered the reasons underlying his custody status when evaluating his credibility.id: 23960
The trial court did not err by allowing a support dog to be present during the questioning of two alleged child molest victims.The trial court did not abuse its discretion by allowing a support dog to be present during the testimony of two alleged child molest victims without a showing of necessity. Moreover, the dog’s presence was not inherently prejudicial and did not violate defendant’s rights to confrontation or a fair trial.id: 23715
A non-victim child witness may testify remotely without violating defendant’s right to confront witnesses.In Maryland v. Craig (1990) 497 U.S. 836, the court held that a child abuse victim could testify by closed circuit television under certain circumstances without violating the criminal defendant’s confrontation clause rights. The same rule applies to a child witness who is not a victim. California courts have the inherent authority to order remote testimony in these circumstances.id: 23001
The provision allowing for one support person to accompany a child witness to the stand was not violated where the court allowed a victim advocate and a support dog. Defendant argued the trial court erred by allowing both the therapy dog and a victim advocate to accompany the child alleged victim to the witness stand because Penal Code section 868.5 permits only one support person. However, the dog did not qualify as a support person for purposes of the statute, and the court took steps to ensure the dog was largely unnoticeable when everyone was seated. And no additional findings of necessity were required for the support person, who was familiar with the rules and did not misbehave.id: 23015
The trial court did not err in permitting three witnesses to describe their fear in testifying at trial. The trial court did not err in permitting three witnesses to testify about their fear of testifying at trial. Contrary to defendant’s claim, the prosecution was not required to show that their testimony was inconsistent with prior statements or otherwise suspect.id: 22854
The trial court did not err by limiting disclosure of the identity of certain prosecution witnesses until shortly before trial.In an effort to protect certain prosecution witnesses from gang retaliation, the trial court issued protective orders delaying and limiting disclosure of the identities of the witnesses. The order did not violate due process or confrontation clause rights. It did not authorize permanent nondisclosure and most witnesses identified themselves during their testimony. The record shows the defense learned the identity of the witnesses a couple of days before trial and therefore had the opportunity to investigate their backgrounds. The court also ordered the prosecution to make the witnesses available for interviews (with the prosecution present) and to provide criminal backgrounds. Prohibiting counsel from discussing matters that might identify the witnesses did not interfere with the attorney-client relationship or prevent the development of a viable defense theory.id: 22850
Evidence of a third party’s threat was relevant to the witness’s credibility.While evidence of a third party’s attempt to intimidate a witness is normally inadmissible against the defendant, it was relevant here to the witness’s credibility as it explained her fear. Evidence of defendant’s gang membership may not have been relevant to the witness’s credibility but the reference was brief and indicated that he had once been a gang member.id: 22646
The trial court did not err by ruling the molest victim could testify via closed circuit TV even though it failed to question the victim.The trial court did not violate defendant’s confrontation clause rights by permitting the child molest victim to testify via two-way closed circuit television from a location outside the courtroom. While the court did not question the victim before ruling on the issue, it did conduct a lengthy hearing which included the opinions of the social worker an the victim’s mother.id: 22162
The record did not support defendant’s claim that a prosecution witness lied when he testified he did not receive benefits in exchange for his testimony. Defendant argued a witness perjured himself when he testified he did not receive benefits for his testimony, but only promises of safety. While the witness received benefits in pending cases, there was no evidence the prosecutor in this case had engineered those deals, and the prosecutor’s notes consistently showed he did not offer benefits in exchange for the testimony.id: 20974
he trial court did not err in allowing the prosecutor to call a witness knowing she intended to remain silent and refuse the oath.The trial court permitted the prosecutor to call Luna as a witness, knowing that she intended to remain silent and refuse the testimonial oath risking contempt. Because she had already pled guilty and served a prison term for her involvement in the offense, she had no privilege to refuse to testify under the Fifth Amendment. Defendant argued the court’s ruling violated Evidence Code section 600, subd.(b), because there was no admissible nonspeculative inference that could be drawn from her refusal of the oath. However, the trial court did not err in admitting the courtroom conduct for the limited purpose of providing support for the gang expert’s opinion that gang members threaten potential witnesses. There was no confrontation clause violation because the witness never testified. id: 20983
The presence of section 868.5 witness support persons within view of the jurors did not violate due process.The presence of a witness support person under Penal Code
section 868.5, within the sight of the jury during the testimony of three witnesses did not violate defendant's due process rights.id: 19561
While there is a process that calls for a commission to depose unavailable foreign witnesses, the trial court may not compel such depositions.Defendant argued the trial court erred in denying his applications for a commission to examine witnesses in Mexico who were material with respect to the circumstances of his release to U.S. officials and his interrogation. However, depositions taken under the commission process on a finding that a witness is unavailable (Penal Code section 1362) may not be compelled, and such testimony is subject to the consent of the person whose testimony is sought. id: 20545
The victim’s step grandson was an “immediate family member” for the purposes of the provision which allowed family members to attend the trial even if they would testify.Former Penal Code section 1102.6 allowed a victim’s family member to attend a trial unless there was a substantial risk that the person’s presence would influence or affect the testimony. The murder victim’s step grandson had a right to attend the trial under that provision even though he would be testifying as a witness. The trial court did not abuse its discretion in concluding the witness‘s presence would not impact his testimony or that of any other witness. Later events did not show that he tailored his testimony to conform to what he earlier learned at trial.id: 20495
The trial court did not err at defendant’s capital trial in refusing to exclude the testimony of a jail house informant as inherently unreliable despite the contradictions and motive to lie.Defendant was convicted of capital murder based largely on the testimony of an inmate in the jail in whom defendant confided. The testimony was corroborated in some respects. Defendant moved to exclude the testimony of the witness as inherently unreliable as it was full of contradictions, the witness had a lengthily criminal history and he was motivated to testify to reduce his own exposure. However, no rule of evidence permits the exclusion of relevant evidence from a witness who is a bad person with a motive to lie. Because a rational trier of fact could have found him credible, the court could not exclude the testimony as inherently incredible. Moreover, the jury wad aware of all of the relevant factors involving the witness.id: 20489
The trial court erred in refusing to issue removal orders for the self-represented defendant's prison witnesses due to his mistaken belief that the defendant was first required to serve subpoenas on the witnesses.The trial court required the self-represented defendant to serve subpoenas on his prisoner witnesses before they could be brought to court. A witness incarcerated in prison is brought to criminal court to testify by means of a removal order issued pursuant to Penal Code section 2621 or 1567. The judge would not issue removal orders for defendant's witnesses due to his mistaken belief that defendant was first required to have subpoenas served on his witnesses within the prison - a hurdle defendant never overcame. However, the error was harmless under the Watson standard.id: 20092
In the act to secure the attendance of witnesses, the term "state" includes the Navajo Nation.California adopted the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings in 1937. The Act provides for the issuance of a subpoena by a California Court for the attendance of a witness in an out-of-state criminal proceeding when a judge of a court of record in any state which by its laws provides for commanding persons within that state to attend and testify in this state, . . . certifies such witness is necessary as material. State is defined in Penal Code section 1334.1 as any state or territory of the United States and the District of Columbia. State in the statute is to be read to include the Navajo Nation.id: 12789
Court did not err in admitting evidence of third person's threat to a witness where the evidence was limited to the witness' state of mind.Defendants objected to the trial court's admission of evidence of third persons threats to a witness. Consciousness of guilt cannot be established by attempts to suppress evidence unless these attempts can be connected to a defendant. That was not done here. There was never a suggestion the evidence reflected consciousness of guilt. It was strictly limited to establishing the witness' state of mind. Moreover, the court did not err by not excluding the evidence under Evidence Code section 352. The fact that a witness is testifying despite fear is important in evaluating credibility. The court was well within its discretion in deciding the jury should receive such evidence.id: 12785
The witness was illegally detained as a material witness where there was no record that counsel was appointed to advise her and there was no hearing as required by section 1332.Penal Code section 1332 allows for the incarceration of an uncooperative material witness in order to secure their presence at trial. The procedure provides an initial hearing to show the witness is material and will not appear. Since no hearing was held in the present case, as each judge thought the other had conducted the hearing, any subsequent review proceedings were meaningless. The witness was illegally deprived of her liberty because she was denied counsel and never provided the proper hearings.id: 18155
Counsel was not ineffective for failing to move to exclude the child's testimony due to her inability to recall certain details after the court determined she was competent to testify.Defendant was convicted of molesting his three-year old stepdaughter. The court determined the witness was competent to testify. Defendant argued trial counsel rendered ineffective assistance in failing to move to exclude the minor's testimony on the ground that she was unable to perceive and recall the events as to which she testified. However, while the minor did not recall her interview or statements she made to anyone about the molestation, she did testify about the incident and provided certain details. While the details varied from the other evidence it was for the jury to decide whether the minor's recollections were accurate.id: 17920
Victim's speech impediment brought on by her cerebral palsy did not render her an incompetent witness and the court did not err by allowing leading questions.The alleged assault victim suffered from cerebral palsy and had a related speech disability. The disability which impaired her ability to communicate did not render her incompetent as a witness. Moreover, the trial court did not err by allowing the parties to ask the victim leading questions. Finally, the court did not err by failing to appoint an interpreter to communicate the victim's answers.
id: 17582
Videotaped testimony of the complaining witness did not violate the confrontation clause where counsel was present for cross-examination and the defendant was hooked up from his detention cell so that he could view the witness and speak to counsel.Defendant was charged with child abuse and assault. He was not denied his rights to be present at trial and to due process when the trial court allowed the adult prosecuting witness, who suffered from established, physical and mental disabilities, to testify at trial by means of a prior videotape recording. The videotaped played for the jury was recorded while the witness was in the courtroom and examined and cross-examined by counsel, and while defendant was in a detention cell wired so he could hear the witness and communicate with his counsel. The court also properly admitted the videotape recording of a police interview with the witness as a prior consistent statement.id: 17030
Prosecution witness' signed agreement to testify truthfully as part of a plea bargain did not render his testimony coerced.Defendant argued a key prosecution witness should not have been allowed to testify because the plea bargain by which he pled guilty to second degree murder was coercive. Nothing in the agreement was coercive or improper since it did not require the witness to testify in a particular fashion. The record did not support defendant's claim that the witness understood the agreement to require certain testimony. Finally, the jury could reasonably believe the witness' overall testimony was credible.id: 16707
Witness' delusion about her imaginary son being present at the earlier crime did not render her an incompetent witness.At the penalty phase retrial the prosecution presented evidence of a 1979 murder that was introduced as an aggravating factor. The evidence was presented by a witness who suffered from delusions and emotional anguish. Defendant argued the witness was incompetent to testify because she lacked the capacity to perceive and recollect the events as demonstrated by her insistence that her imaginary son was with her at the time. However, the witness was competent, and aside the delusion regarding her "son" she presented a plausible account of the circumstances of the killing. Moreover, the court was not required to order a psychiatric evaluation to determine her competence.id: 16439
Evidence that the witness suffered from polysubstance abuse, was delusional and gave incoherent answers did not mean he lacked the capacity to perceive or that he was incompetent when he recalled many details and led police to the murder weapon.An eyewitness who testified for the prosecution suffered from polysubstance abuse and other mental disorders. Although his testimony consisted of inconsistencies, incoherent responses and possible delusions, he also testified to many details of the crime which others would not have known. He also led the police to the location where the murder weapon was found. The evidence did not support defendant's claim that the witness lacked to capacity to perceive and recollect under Evidence Code section 702, subd.(a), or that he was incompetent to testify under section 701, subd.(a).id: 16393
The trial court did not abuse its discretion in finding the eight year-old eyewitness to the killing of her mother was competent to testify to the events four years earlier.Deanna, an eyewitness to the events, was four years old at the time of the killings and eight years old when she testified at trial. The voir dire questioning established her ability to express herself in an understandable manner. The examination also showed she understood the difference between truth and falsehood and she was to testify only to those things she could remember. The trial court did not abuse its discretion in determining Deanna was competent to testify. Moreover, once the court determined she was competent to testify under Evidence Code section 701, it had no basis for excluding her testimony for lack of personal knowledge. That she had received therapy to cope with her mother's death, that she discussed the events with the prosecutor, and that she had gaps in her testimony did not disqualify her as a witness.id: 15974
Detention of material witnesses is constitutional if proceedings are conducted ensuring the interests of the state and witness are heard and protected.Two minors were detained as material witnesses pursuant to Penal Code section 1332 in a special circumstance murder prosecution. The minors argued their continued detention violated their constitutional right under article 1, section 10 of the California Constitution, not to be unreasonably detained. While section 1332 is constitutional, certain procedural safeguards are necessary to ensure that the interests of the state and the witness may be adequately heard and protected. In the present case, the superior court was ordered to conduct hearings considering several factors including 1) the nature of the underlying charges, 2) the nature of the witness' proposed testimony, 3) the length of the proposed detention, and others.id: 14821
Supreme Court permits possible child abuse victim to testify without facing defendantIn <i>Coy v. Iowa,</i> 487 U.S. 1012 (1988), the Court held a witness' testimony given while unable to see the defendant violated the confrontation clause. The court left open whether such testimony would be permissible if supported by case-specific findings of the procedure's necessity. Defendant was convicted of child abuse based on testimony given by her alleged victim via closed-circuit television permitting defendant to see the witness but preventing the witness from seeing the defendant. The witness was subject to cross-examination by defense counsel. Writing for five members of the court, Justice O'Connor held that case-specific findings could authorize such testimony. The Court required that such testimony be supported by evidence leading to the trial court's determination that the process is necessary to protect the particular child witness. The Court rejected the state appellate court's suggestion that no such finding could be constitutionally adequate unless the trial court first observed the witness' behavior in the defendant's presence and considered the possibility of alternatives less restrictive than one-way closed circuit television. Justices Scalia, Brennan, Marshall and Stevens dissented.id: 12795
There was no due process violation in using two support persons when the victim testified.Defendant was charged with forcible rape. Prior to the adult victim's testimony the People requested that she be allowed to have two support persons with her as she testified. Defendant objected to the presence of the support persons who were identified and included the victim's sister. The sister testified before the victim and when asked, the victim said she would appreciate the support of the two persons. Defendant presented no facts that the particular practice presented an unacceptable risk or that the court should have required a showing of necessity for the procedure. Nor did defendant show any actual prejudice.id: 12796
Prosecution witness' sworn, pre-plea testimony did not render the plea agreement coercive and he was only required to testify truthfully at defendant's trial.A prosecution witness entered into a plea agreement prior to his testimony in defendant's case. Defendant argued the witness' sworn, pre-plea testimony rendered the plea agreement coercive. However, the witness was not an accomplice upon whose testimony the prosecution substantially based its case. He was only required to testify fully and truthfully in defendant's case, and there was no requirement that his testimony conform to the testimony he gave at the plea hearing.id: 12792
Provision allowing for support persons for sexual assault victims did not impermissibily suggest defendant was guilty before any evidence was taken.Defendant argued that Penal Code section 868.5 which allows a support person to accompany a sexual assault victim to the witness stand erodes the presumption of innocence because the presence of a support person suggests that the witness is too traumatized to face the defendant and the jury and testify without help because the crime really happened. However, the presence of a support person at the stand does not necessarily rob an accused of dignity or brand him or her with an unmistakable mark of guilt and does not deprive defendant of a fair trial.id: 12793
Refusal to exclude witness from the courtroom did not require reversal.Denial of defense counsel's motion to remove a witness, who was a surviving victim, from the courtroom did not require reversal of the penalty judgment.id: 12794
Admitting testimony of a seven year old did not violate the right of confrontation and court was not required to raise competence issue on its own motion.The murder victim's seven year old son testified at trial. Defendant argued the trial court erred in not raising the issue of competency on its own motion. However, defendant failed to object on this ground in the trial court and may not circumvent the objection requirement by claiming the court should have inquired into the witness' qualifications on its own. Moreover, admission of the testimony did not violate defendant's Sixth Amendment right of confrontation. While the witness' answers contained some inconsistencies, the answers to questions on direct and cross-examination were lucid and responsive and did not reveal an inability to distinguish truth from falsehood or a failure to appreciate his obligation as a witness to tell the truth.id: 12782
Court did not abuse its discretion in denying appellant's late request to have a defense witness dress in civilian clothes rather than prison garb.Appellant argued the trial court erred by requiring a defense witness to testify while dressed in prison clothes and that he was further prejudiced by the court's pronouncement to the jury that the witness was in custody. However, the request to have the witness dressed in civilian clothes was not timely and would have required a continuance. Moreover, the witness' appearance in civilian clothes would have been of scant benefit to the defense, since he was impeached with evidence of a prior felony conviction.id: 12784
Court did not err in failing to disqualify defendant as a witness and simply continuing the trial one day where defendant was groggy from medication prior to his second day on the witness stand.Before defendant began his second day of testimony he commented that he had not received certain medication. The medication was then given but it made defendant groggy. While he felt a little better after being fed the trial court continued the trial until the next day. Defendant later argued the court erred in failing to disqualify the defendant as a witness for the short period of his testimony immediately after his medication was administered on the ground that he was incapable of expressing himself under Evidence Code section 701, subdivision (a)(1). However, the record did not show defendant was incapable of expression and the court did not grant the one day continuance on that basis.id: 12786
Court did not err in ruling the five year old girl was competent to testify despite her inability to recall some details and the failure to threaten punishment if she lied.The prosecution called a five-year old girl to testify. To determine her competency as a witness, the court asked if she knew the difference between telling the truth and lying, and if she would be truthful in answering questions. She responded in the affirmative to both. Defendant argued the court's voir dire was inadequate to determine whether she was capable of recounting her impressions of pertinent events and because the court did not tell her she would be punished if she lied. While some of her statements were inconsistent, those statements were challenged on cross-examination and inconsistent statements or failure to recall details do not disqualify a witness. Moreover, an actual threat of punishment is not a prerequisite to a determination of competence.id: 12787
No violation of due process by failure to invade attorney-client privilege between accomplice and his attorney.Capital defendant was not denied due process when trial court refused to invade accomplice's attorney-client privilege as to discussion about plea bargain and illegality of his confession. There was no waiver of the privilege because the accomplice had not been advised of his right to assert the privilege.id: 12790
Court did not err in refusing to permit a police officer defense witness to testify concerning his intimidation by the prosecutor.Defendant called a police officer he had known for 15 years as a character witness. After his testimony the witness asked to speak with the judge in chambers. He stated the prosecutor refused to guarantee his appearance on behalf of a defense witness would be absolved, and while that bothered him, it did not affect his testimony. The trial court subsequently denied defense counsel's request to recall the witness to tell the jury about the officer's intimidation by the prosecutor. The ruling was not erroneous where there was no effect of any intimidation on the testimony of the witness.id: 12592
Supreme Court upholds requiring defendant to give notice of defense evidence under rape shield law.Michigan's rape shield statute prohibits a defendant from producing, at trial, evidence of an alleged rape victim's past sexual conduct. However, the statute permits a defendant to introduce evidence of his <i>own</i> past sexual conduct with the victim, if he files a written motion and offer of proof within ten days after he is arraigned. The trial court may then hold an <i>in camera</i> hearing to determine whether the proposed evidence will be admitted. The Michigan Court of Appeals struck down the notice-and-hearing requirement, ruling that it was a <i>per se</i> violation of the Sixth Amendment. In a 7-2 opinion written by Justice O'Connor, the Supreme Court reversed, holding that a <i>per se</i> prohibition against enforcing notice requirements by precluding evidence could not be squared with <i>U.S. v. Nobles</i>, 422 U.S. 225 (1975), and <i>Taylor v. Illinois,</i> 484 U.S. 400 (1988), which upheld orders precluding a defendant from presenting evidence where he had not complied with a pretrial discovery request. The case was remanded to the Michigan Court of Appeals to determine whether or not preclusion was justified in this <i>particular</i> case. Justice Blackmun concurred in the judgment, and Justices Stevens and Marshall dissented.id: 9998
Defendant waived any error in failing to request a hearing to determine the necessity of a support person to assist the child molest victim.Defendant argued the trial court erred in failing to hold a hearing to determine the necessity of a support person to accompany the six year-old child molest victim to the witness stand. However, defendant waived any claim of error by failing to request a hearing and determination of necessity, or otherwise object to the presence of a support person.id: 10022
Procedure allowing support persons for sexual assault victims was not an impermissible infringement on the confrontation clause.Defendant argued that Penal Code section 868.5 which allows a support person to accompany a sexual assault victim to the witness stand violates a defendant's right to a fair trial by interfering with his right to confront witnesses. He claimed the provision singles out one class of witness, prosecuting witnesses, for special treatment and the special treatment injects into the trial extra-evidentiary factors that skew the truth-finding process. The court found the procedure has an effect on jury observation of demeanor. However, not all infringements on the confrontation clause are impermissible. In light of the valid state concern for minor witnesses, it is much less intrusive on the jury's ability to observe the witness' demeanor to have the witness accompanied at the stand than to have him or her testify via closed circuit television or some other means.id: 9982
Provision allowing for support persons for sexual assault victims did not impermissibily suggest defendant was guilty before any evidence was taken.Defendant argued that Penal Code section 868.5 which allows a support person to accompany a sexual assault victim to the witness stand erodes the presumption of innocence because the presence of a support person suggests that the witness is too traumatized to face the defendant and the jury and testify without help because the crime really happened. However, the presence of a support person at the stand does not necessarily rob an accused of dignity or brand him or her with an unmistakable mark of guilt and does not deprive defendant of a fair trial.id: 9984
Defendant's right of confrontation was not violated where the child molest victim testified with his mother seated next to him.The prosecutor requested that the child molest victim be permitted to testify with his mother seated next to him pursuant to Penal Code section 868.5. The trial court did not violate defendant's right of confrontation in granting the request. The victim testified he wanted his mother beside him because he liked her, thus dispelling any suggestion that he was too traumatized by the sexual assault to testify without her. Moreover, there was a decreased risk of vouching when the support person is the parent of a younger child.id: 9479
Prosecutor's questioning of a young child molest victim with the child looking away from the defense table did not violate the confrontation clause.Defendant was charged with multiple counts of child molest. He argued he was deprived of his right to face-to-face confrontation with his accuser when the prosecutor sat or stood next to the witness stand so the victim could look away from the defense table while testifying. When the victim witness is a young child, the risks of damage to both the witness and the truth-seeking function can be especially great. The special procedure adopted by the trial court in this case minimized those risks, while maximizing appellant's opportunity for a face-to-face meeting with his principal accuser.id: 9494
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245