Prior Testimony/Depositions
Category > Prior Testimony/Depositions
Updated 6/1/2024The prosecution didn’t make reasonable efforts to secure the presence of a witness where they didn’t start looking for her until just before trial, so the court erred in admitting her preliminary hearing testimony.The trial court erred in admitting the preliminary hearing testimony of the state’s key witness. The prosecution knew she was an important witness who had gone missing, but waited until two weeks before trial to start the unsuccessful search to find her. This was a failure to demonstrate reasonable diligence in securing the witness’s presence at trial in accordance with Evidence Code section 240(a)(5), and the court erred in admitting her earlier testimony under section 1291.id: 28282
Updated 3/5/2024Searching for a witness after deportation did not establish due diligence needed to allow the prosecution to admit the witness’s preliminary hearing testimony.In People v. Roldan (2012) 205 Cal.App.4th 969, the court established a four-step procedure to be used by the prosecution where a witness testifies at the preliminary hearing but thereafter faces deportation. Before the preliminary hearing testimony can be used at trial, the prosecution must show that it used due diligence to delay deportation. The prosecutor in this case was unaware of Roldan and did not comply with its requirements. Searching for the witness after deportation was not sufficient and the error required reversal of the attempted murder convictions.id: 26805
The admission of a witness’s conditional exam violated defendant’s confrontation clause rights as the prosecution, after locating the witness, failed to secure her attendance at trial.The trial court’s admission of a robbery victim’s conditional examination testimony violated the confrontation clause of the Sixth Amendment. After locating the out-of-state witness, the prosecution failed to use the Uniform Act, a procedure to compel her attendance. The error was prejudicial where the testimony was key to the issue of identification, and it was a close case as demonstrated by the fact that it was a retrial following a hung jury.id: 24575
Supreme Court says unavailable witness's testimonial statements are inadmissible unless defendant had opportunity to cross-examine.At defendant's assault trial, defendant's wife, who witnessed the assault, invoked the marital privilege and refused to testify. The state then introduced a statement that the wife gave to police officers shortly after the alleged assault. The state courts admitted the statement under Ohio v. Roberts,(1980) 448 U.S. 56, which held that the Confrontation Clause does not bar the admission of hearsay against a criminal defendant if the statement bears adequate indicia of reliability. The Supreme Court overruled Roberts in part and reversed. The Court held that when the prosecution seeks to introduce a "testimonial" hearsay statement, it must show both that the witness is unavailable and that the defendant had a prior opportunity for cross-examination. Although the Court did not give a comprehensive definition of "testimonial," it held that the term includes at least "prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations."id: 17790
The trial court prejudicially erred by allowing testimony it knew to be false to used at trial and by not disclosing to the parties that the witness had repudiated his claim. The trial court erred by allowing the prosecution to use the alleged robbery victim’s former testimony from the preliminary hearing. The witness’s attorney informed the court before trial that the witness had not been robbed and no gun was used in the incident. He said the witness would invoke his Fifth Amendment privilege. The prosecutor argued at trial that the witness feared gang retaliation if he testified. The prosecutor did not know the witness had admitted to lying initially. The jury should have been allowed to consider the preliminary hearing testimony in light of his current claim that it was a lie.id: 23186
The trial court violated defendant’s confrontation clause rights by admitting the preliminary hearing testimony of a witness who was deported before trial.The victim of one of the two shootings was deported to Mexico after the preliminary hearing. The trial court violated defendant’s confrontation clause rights by admitting the victim’s preliminary hearing testimony into evidence because the prosecution failed to show the witness was unavailable to testify. The prosecution failed to videotape the preliminary hearing testimony which, would at least have allowed the jurors to see him testify. It also failed to notify defense counsel of the pending deportation, failed to detain him as a material witness, subpoena him or make efforts to stay in touch before trial.id: 22697
The trial court did not err in denying defendant’s motion for mistrial where the expert witness retained by the defendant failed to appear for trial. The defense-retained medical expert did not appear at defendant’s trial for committing sex offenses against a minor. The trial court did not abuse its discretion in denying defendant’s motion for a mistrial where defense counsel knew the witness was planning a vacation, never subpoenaed the witness, requested a continuance or asked to depose her. The prosecution bore no responsibility for the witness to appear. Finally, the record shows the witness’s expected testimony would not have changed the result at trial. For that reason, the failure to subpoena the witness did not constitute the ineffective assistance of counsel.id: 22696
The trial court prejudicially erred in finding the prosecution showed due diligence in attempting to secure the presence of an out of state witness without fully utilizing the Uniform Act set forth in section 1334.The trial court erred when it allowed the prosecution to offer in evidence the alleged rape victim's testimony from a preliminary hearing. The court erred in finding the prosecution showed due diligence in attempting to secure her presence at trial as it did not fully utilize the Uniform Act to Secure Witnesses described in Penal Code section 1334 et seq. Code of Civil Procedure section 1219, subd.(a) which prohibits a trial court from using its contempt power to place in custody a sexual assault victim who refuses to testify does not limit the power of the court to use the custody and delivery provisions of the Uniform Act.id: 19927
Admitting preliminary hearing testimony of unavailable witness constituted prejudicial error where the earlier testimony was delusional and fantastic and showed she did not comprehend the truth.At the preliminary hearing the victim's testimony was delusional and contradictory. She claimed to have body parts that she did not in fact have and testified that defendant, a stranger before the charged sexual assaults, had been involved in fantastic plots to kill her two previous husbands. At trial the court granted defendant's motion to disqualify the witness pursuant to Evidence Code section 701, on the ground she was incapable of appreciating her duty to tell the truth. However, over defendant's objection, the witness' preliminary hearing testimony was admitted pursuant to section 1291, since she was unavailable as a witness. Since the record established her incompetence at the time of the preliminary hearing, the admission of this testimony at trial constituted prejudicial error.id: 9826
Witness' preliminary hearing testimony may not be used to revoke probation absent a showing of the witness' unavailability.At a probation revocation hearing, the prosecution may not introduce the transcript of a witness' preliminary hearing testimony in lieu of the witness' live testimony in the absence of the declarant's unavailability or other good cause. That the defendant was notified prior to the preliminary hearing that testimony at the hearing could later be used to revoke probation did not change the result. However, the error in offering the preliminary hearing testimony at the revocation hearing without a showing of unavailability was harmless in light of defendant's post-revocation hearing conviction based upon the same facts reflected in the preliminary hearing transcript.id: 13092
Appellate court should apply de novo standard of review when evaluating a trial court's determination of due diligence regarding the state's effort to locate a missing witness.Evidence Code section 240, subd.(a)(5) allows the introduction of a witness' prior recorded testimony if the prosecution has used "reasonable diligence" in its unsuccessful efforts to locate the missing witness. When evaluating a trial court's due diligence determination an appellate court should apply the independent de novo standard of review.id: 15038
The prosecution witness was not "unavailable" simply because he was a Mexican citizen residing in Mexico.To establish the unavailability of a crucial witness (in order to use his former testimony) who is a Mexican citizen currently residing in Mexico, the prosecution must show it made a reasonable good-faith effort to obtain the presence of the witness at trial. The defendant's confrontation clause rights were violated where no such showing was required.id: 15039
The prosecution did not exercise due diligence in waiting until the first day of the retrial to secure the attendance of a witness.The trial court erred at the retrial by improperly allowing the prosecution to use the former trial testimony of a witness. The prosecutor waited until the morning of trial to serve the witness with a subpoena. At the due diligence hearing the detective testified that he had not anticipated the witness moving from her apartment making him confident he could locate her on short notice but then said he waited until the first day of trial to locate her because he was afraid she would disappear if he gave her advance notice. These positions were inconsistent. The prosecution did not exercise due diligence in attempting to locate the witness and the error was prejudicial in light of the importance of her testimony.id: 18662
Trial court erred in admitting a videotape of the conditional examination of the witness.A prosecution witness was unavailable to testify at trial and the court ordered a conditional examination of the witness on videotape pursuant to Penal Code section 1335, et seq. However, the statutory scheme governing conditional examinations does not authorize the admission into evidence of a videotaped deposition. The error was harmless where there was no reasonable probability the defendant would have achieved a better result if the court had admitted a written transcript of the testimony instead of a videotape.id: 12995
Updated 3/6/2024The prosecution properly admitted the witness’s testimony from the first trial after unsuccessfully trying to locate her, and the state had no duty to anticipate the first trial would result in a hung jury.Defendant argued the prosecution did not exercise due diligence in securing the key witness to testify at defendant’s second trial - leading the prosecution to read the transcript of the witness’s first trial. The prosecution acted with due diligence in attempting to secure the witness’s presence at the retrial, as police checked local and Las Vegas databases and surveilled the witness’s mother’s house after learning she had moved in with her mother in Las Vegas. Contrary to defendant’s claim, it was not reasonably foreseeable that the weak case would end in a mistral and that the state should therefore have secured the material witness under Penal Code section 1332. Neither was the prosecutor obligated to videotape the witness’s testimony from the first trial.id: 26565
Updated 3/4/2024The trial court did not err by admitting the codefendant’s first penalty phase testimony at the joint penalty phase retrial.Both penalty juries for the two capital defendants deadlocked, and they were retried before a single penalty jury. The trial court did not err by admitting codefendant’s first penalty phase testimony regarding the circumstances of a murder at the joint penalty retrial. The codefendant was unavailable having invoked his privilege against self-incrimination and his former testimony was properly admitted.id: 26976
Updated 2/23/2024The trial court was not required to find the alleged rape victim in contempt before finding her unavailable, and section 1219 (b) which prohibits punishment for sexual assault victims who refuse to testify does not violate the confrontation clause. The alleged rape victim refused to testify, so the court found her in unavailable and admitted her prior testimony. The trial court was not required to find her in contempt before it could deem her unavailable. Moreover, Code of Civil Procedure section 1219 (b), which prohibits the incarceration of sexual assault victims who refuse to testify does not violate the defendant’s right to confront adverse witnesses.id: 26949
There was no error in finding the prosecution was diligent in attempting to find a witness where the prosecution had relocated but then lost the witness. Defendant argued the trial court erred by admitting the witness’s preliminary hearing testimony based on its finding that the prosecution used due diligence in unsuccessfully attempting to locate her. The fact that the prosecution relocated the witness did not mean that it had to keep track of her or take preventive measures to stop her from fleeing. They were not required to obtain a hold or bond. Checking the welfare agency was just as good as checking the local hospitals. And contrary to defendant’s claim, an extraordinary showing of due diligence was not required because of her value to the prosecution’s case.id: 23784
The trial court did not err by releasing the minor from her commitment as a material witness after allowing her to take a conditional exam. The trial court did not err by releasing the minor from her commitment as a material witness under Penal Code section 1332 after permitting her conditional exam to be taken. She was a 14 year-old victim of a sex crime who needed to return home for therapy rather than continue to be housed in juvenile hall. Moreover, the court did not err by admitting the conditional exam where defense counsel had adequate time to prepare, and documents the defense later found and claimed could have been used to impeach the witness had little evidentiary value.id: 24975
The prosecution was not required to incarcerate the 16 year-old runaway as a material witness, and the trial court did not err by admitting her preliminary hearing testimony. Defendant argued the trial court erred by admitting the preliminary hearing testimony of a witness the prosecution could not locate at trial. She was 16 at the time of trial, was a runaway with an unstable lifestyle and the defense argued the prosecution should have kept her in custody as a material witness until she testified at trial. However, the evidence supported the prosecution’s claim that a witness had been cooperative and should be available to testify at trial. The court also had to consider the witness’s liberty interest as it would have been a lengthy incarceration.id: 24786
The prosecution satisfied its due diligence requirement in showing the unavailability of the witness who had been deported several months earlier and the trial court properly admitted his preliminary hearing testimony.A few days before defendant’s trial was to begin, the state’s investigator began searching for a key witness only to find that he had been deported to El Salvador eight months earlier. The investigator contacted authorities in El Salvador but the witness could not be found. Moreover, El Salvador and the United States had no treaty providing for his extradition to testify as a witness. The prosecution fulfilled its obligation of due diligence in demonstrating the witness’s unavailability, and the trial court properly admitted his preliminary hearing testimony.id: 21652
The trial court did not err by admitting the alleged victim’s preliminary hearing testimony after the police made attempts to locate her even though the prosecution did not subpoena her and the officers did not check her parents’ and grandparents’ residences.Defendant argued the trial court erred by admitting the preliminary hearing testimony of one of the alleged rape victims. The witness was unavailable even though the state failed to subpoena her when she became unresponsive and failed to physically check the residences of her parents and grandparents. Investigators did make efforts to locate her as they called relatives, checked state databases and attempted to contact her through social media. The defense did have an adequate opportunity to cross-examine Jane Doe at the preliminary hearing even though it lacked her written statement to police as counsel could still have questioned her about the statement.id: 24214
Supreme Court says unavailable witness's testimonial statements are inadmissible unless defendant had opportunity to cross-examine.At defendant's assault trial, defendant's wife, who witnessed the assault, invoked the marital privilege and refused to testify. The state then introduced a statement that the wife gave to police officers shortly after the alleged assault. The state courts admitted the statement under Ohio v. Roberts,(1980) 448 U.S. 56, which held that the Confrontation Clause does not bar the admission of hearsay against a criminal defendant if the statement bears adequate indicia of reliability. The Supreme Court overruled Roberts in part and reversed. The Court held that when the prosecution seeks to introduce a "testimonial" hearsay statement, it must show both that the witness is unavailable and that the defendant had a prior opportunity for cross-examination. Although the Court did not give a comprehensive definition of "testimonial," it held that the term includes at least "prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations."id: 20128
The trial court properly found the child victim was unavailable to testify at the retrial after expert testimony showed he would suffer great trauma if he had to testify again. Defendant was convicted of child molest at a retrial following a jury deadlock. The trial court determined the child was unavailable for the retrial and admitted his testimony from the first trial. The trial court’s ruling was proper following expert testimony that he would suffer substantial trauma if he had to testify again. id: 23803
The trial court did not err in denying the habeas petitioner’s motion for a commission to examine an unavailable witness in Mexico where the witness’s declaration was similar to his trial testimony. Defendant was convicted of several offenses involving violence against Cardenas. Cardenas’ trial testimony vacillated on whether defendant was the perpetrator. He was later deported to Mexico. Defendant filed a habeas corpus petition alleging actual innocence. Because Cardenas was unavailable under Evidence Code section 240, defendant requested that a commission should be ordered to examine Cardenas as a material witness pursuant to Penal Code sections 1349 - 1351. These provisions refer to trials but the court had discretion to order the examination in the habeas proceeding where actual innocence is contested. However, the trial court did not err in denying the request where Cardenas’ declaration was not much different from his trial testimony.id: 23409
Defendant’s young son’s preliminary hearing testimony was properly admitted at trial even though defendant later discovered evidence relevant to his credibility.Defendant argued that his 8 year-old son’s preliminary hearing testimony was barred by Evidence Code section 1291. The trial court found that subsequently developed evidence regarding the boy’s credibility could be introduced at trial. Defendant’s lack of access to this evidence (mental condition after being placed in foster car) did not deprive defendant of a meaningful opportunity to cross-examine the boy at the preliminary hearing.id: 22839
The prosecution made adequate efforts to locate the witness who had moved to Texas before trial, and the trial court properly allowed the witness’s preliminary hearing testimony to be read to the jury. Defendant argued the trial court erred by permitting the preliminary hearing testimony of a witness to be read to the jury. However, the evidence at the hearing showed the prosecution exerted due diligence to obtain the witness’s presence at trial. The prosecutor was on notice that the witness was reluctant and the 14 year-old witness was placed in custody for a period of time before the prelim. Thereafter, a detective kept track of his whereabouts by visiting the neighborhood and school. The witness and his mother moved to Texas before the trial and the detective obtained the Texas address. Texas police went to the house but the witness was not present and the prosecutor attempted to subpoena the witness with the help of the local prosecutor. No one answered the door when the investigator went to serve the subpoena. The prosecutor’s conduct in attempting to secure the presence of the witness was reasonable.id: 22084
The trial court did not err at the penalty phase by presenting the preliminary hearing testimony of a witness from a hearing 15 years earlier.The trial court did not err at the penalty phase by admitting the preliminary hearing testimony from a case 15 years earlier. Reasonable efforts were made to find a witness, and his testimony was only used to describe the circumstances of an earlier crime about which the jury had already learned. Finally, the court rejected the argument that because the other case was 15 years old, defendant did not have a prior opportunity for cross-examination. id: 22050
Trial court was not required to fine or threaten a sex assault victim to testify at trial and her preliminary hearing testimony was properly admitted.A sex assault victim testified at the preliminary hearing, and was present at trial but refused to testify. The trial court did not have to fine her or take other steps to persuade her to testify where it was clear those efforts would not work. The record supports the trial court’s finding that there was nothing the court could do to make her testify. The preliminary hearing testimony was properly admitted and defense counsel’s motive and interest in cross-examining the witness at the prelim was sufficiently similar to allow the evidence at trial.id: 22142
The prosecutor did not commit misconduct or violate defendant’s right of confrontation by refusing to grant immunity to a witness who then became unavailable after being charged with murder resulting in the use of preliminary hearing testimony being read at trial. Defendant argued the admission of the preliminary hearing testimony of a prosecution witness following the prosecutor’s failure to grant use immunity at trial constituted prosecutorial misconduct and violated defendant’s rights to confrontation and due process. There was no confrontation clause violation by refusing to grant immunity to the witness who testified at the preliminary hearing but was subsequently charged with murder. Defendant was given an adequate opportunity to cross-examine the witness at the earlier hearing even though cell phone records defendant argued were important were not discovered until later. Moreover, the refusal to grant the witness immunity was not improper where the record did not show the prosecutor acted for the improper purpose of intentionally rendering the witness unavailable at trial. id: 21952
The admission of a dying declaration does not implicate a defendant's confrontation clause rights under Crawford. The admission of dying declarations, whether or not testimonial in nature, does not violate a defendant's right to confrontation under Crawford.id: 21911
The prosecution used due diligence to secure the presence of the witness at trial even though it not did avail itself of the act that allows detention and transportation of an out-of-state witness.The trial court declared a prosecution witness to be unavailable and then allowed the witness's preliminary hearing testimony to be used at trial. To show "reasonable diligence" in obtaining the witness (a sexual assault victim living outside of California), the prosecutor did not have to ask a court to order the victim taken into custody and transported to California to testify.id: 21496
The trial court did not err by admitting the former testimony of an absent witness and due diligence did not require the prosecutor to keep track of the witness between trials.The trial court did not err by admitting the former testimony of a witness who was not present for the second trial. Defendant argued the prosecutor should have taken steps to prevent the witness from absenting himself. However, the prosecutor is not required to keep “periodic tabs” on a material witness. The prosecutor here had no indication the witness would disappear, despite the fact that he missed a court hearing. And the prosecutor did not err by waiting until July to start searching for the witness where the trial was scheduled to begin in September.id: 21221
The trial court did not err in admitting evidence obtained at a conditional examination taken at a time when proceedings were suspended where it was later determined that defendant was competent at the time. Defendant argued that the trial court erred by admitting at trial evidence obtained at a conditional examination of his late wife, because his competency was in question at the time of the conditional examination. Testimony taken at a conditional exam should be excluded if the defendant is incompetent under Penal Code section 1367 et al. at the time of the examination. However, in this case, proceedings had been suspended due largely to defendant’s intransigence and he was later determined to be competent. The court did not err in going forward with the conditional exam subject to the later determination regarding its admissibility.id: 20981
Conditional examination of a witness with a nervous disorder was not improper where the prosecution did not seek the death penalty, and the practice did not violate defendant’s right to a public trial.Defendant objected to the conditional examination (Penal Code section 1335 et seq.) of a witness who suffered from severe panic attacks. First, although the practice is not available in capital cases and a special circumstance was alleged, defendant was a minor not subject to the death penalty and the conditional exam was therefore not statutorily prohibited. Moreover, the trial court did not abuse its discretion in finding the witness was sufficiently infirm to justify the conditional exam even though she was able to testify in court at the section 402 hearing. Finally, there was no violation of defendant’s right to a public trial where the conditional exam took place outside of the jury’s presence since the exam is not part of the trial but is like a deposition in cases where a material witness is unavailable to testify in person.id: 20962
The trial court did not err in finding a witness at the first trial was unavailable where the court had released the witness from jail OR and the prosecution attempted to locate the witness.The trial court did not err at the penalty phase retrial in admitting the prior testimony of a witness who testified at the first trial. Defendant argued the witness was not unavailable since he was released from jail by the court on his own recognizance, an action which the prosecutor supported. However, the trial court properly balanced defendant’s confrontation clause rights against the material witness’s right to due process. The prosecution’s support for the trial court’s reasonable decision did not constitute a lack of reasonable diligence to find the witness. The prosecution also made numerous attempts to find the witness.id: 20867
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 prosecution was diligent in seeking a witness from a 1991 crime before admitting his preliminary hearing testimony and counsel had a similar motive in cross-examining him at the earlier hearing even though later events might have led him to alter his questioning.The trial court did not err at the penalty phase of a capital case in admitting the preliminary hearing testimony of a victim to prove a 1991 offense. The witness was unavailable and the prosecution met the due diligence standard by beginning his search of the witness several months before trial and competently exploring various leads. That he might have explored other leads did not mean he was not diligent. Moreover, defendant’s motive to cross-examine the witness was not dissimilar to his interest at the prelim even though events occurred after that proceeding that might have led him to alter the nature and scope of the cross-examination in certain ways.id: 20333
Prosecution was diligent in attempting to produce a witness from Canada (before introducing his preliminary hearing testimony) and a treaty with Canada did not compel his production.Defendant argued the trial court violated his confrontation clause rights by allowing the reading of a witness's preliminary hearing testimony. Defendant claimed the prosecution did not exercise due diligence in producing the witness because the witness was in Canada and the U.S. has a treaty with Canada which provides for cooperation in such matters. However, the treaty did not cover this specific situation and the prosecution made reasonable efforts by contacting the FBI, Homeland Security, Customs, the Canadian Consulate in Los Angeles and Canadian immigration authorities in attempting to secure the witness for trial.id: 19815
Doctor's testimony supported the trial court's finding that the child molest victim was unavailable to testify at trial due to crime-induced physical and mental trauma.Defendant was convicted of molesting a 13 year-old boy. He argued the trial court erred in finding the victim was unavailable for the purpose of allowing the introduction of his preliminary hearing testimony at trial. However, the evidence in the form of his physician's opinion supported the trial court's finding that the victim was unavailable to testify because of the crime- induced physical and mental trauma.id: 18151
Court did not err at the second trial in admitting defendant's testimony from the first trial after he elected not to testify.The trial court did not err during the second trial when it allowed the prosecutor to read defendant's testimony from the first trial to the jury after defendant elected not to testify. Defendant's former testimony included his acknowledgment that he had two prior convictions, both of which involved moral turpitude. It was properly admitted under Evidence Code section 1291.id: 17606
Prosecution exercised reasonable diligence to show witness was unavailable by calling him in Japan, and speaking with his American host family who said he had returned to Japan.Defendant argued the trial court erred in admitting the preliminary hearing of the victim's boyfriend - a Japanese foreign exchange student - who had been on the bus with her prior to the incident. Because of his impending return to Japan, the witness provided his preliminary hearing testimony two months before the rest of the preliminary hearing. He was cross-examined at length. The testimony was properly admitted at trial after the witness was found to be unavailable. Contrary to defendant's claim, the prosecution did not have to show the witness was out of the country - only that it had been diligent in attempting to obtain the witness' presence at trial. The statement by the American host family that the witness had returned to Japan, along with a phone call to Japan and a conversation with someone claiming to be the witness satisfied the requirement of due diligence.id: 17334
Prosecutor showed due diligence in attempting to subpoena a witness even though police did not start looking for her until trial started.There was no error in admitting a witness' preliminary hearing testimony despite defendant's claim that the police did not attempt to locate her until just prior to trial. The officer testified he made several attempts to serve the witness a subpoena at the beginning of the trial. He spoke to her mother, went to her school, and asked other officers to find her. However, the witness made a calculated effort to avoid service of process. The prosecution showed due diligence in attempting to secure the witness' presence at trial.id: 16655
Court did not err in allowing the witness' prior testimony following claimed memory losses which were the product of deliberate evasion.Defendant argued the court erred in admitting the prior testimony of codefendant's girlfriend, elicited at the codefendant's preliminary examination. At trial, she declined to identify either defendant claiming no memory of the events. Following each claim of memory loss, the court allowed the prosecutor to place in evidence her prior testimony on the subject. Where the witness' claimed memory loss was a deliberate evasion, the court was justified in admitting the prior testimony as an inconsistent statement.id: 16053
Prosecution used reasonable diligence to procure attendance of victim where they issued a subpoena and went to her house looking for her prior to trial.Defendant argued the victim was not unavailable as a witness (and therefore the court erred in admitting her preliminary hearing testimony) because the prosecution failed to use reasonable diligence to procure her attendance. However, the victim was subpoenaed a month before trial and the prosecution had no information she would not appear. They went to her house and were told she was in Las Vegas, shortly before the unavailability hearing. This was sufficient reasonable diligence to support the admission of the victim's preliminary hearing testimony.id: 16054
Trial court did not err in admitting post-Proposition 115 preliminary hearing testimony of an unavailable witness.Defendant argued the trial court erred in allowing the prosecution to read a witness' preliminary hearing testimony during trial. There was no confrontation clause violation in admitting the prior testimony taken at the post-Proposition 115 preliminary hearing. Defendant failed to show his cross-examination of the witness was unduly restricted. Finally, the trial court properly found the officers acted with due diligence to obtain the witness' presence at trial.id: 16055
Reasons why witness was unavailable at trial was relevant to credibility but the court did not abuse its Evidence Code section 352 discretion in excluding the evidence.The trial court allowed the prosecution to introduce Mr. Mercado's preliminary hearing testimony. Defendant argued the trial court erred in failing to admit testimony as to why Mr. Mercado was unavailable at trial. He claimed the witness' former gang association was relevant to his refusal to testify. He also argued the evidence should have been admitted under Evidence Code section 780, subdivision (j), which allows the attitude of a witness towards giving testimony to be considered in evaluating credibility. While the evidence was relevant on the credibility issue, the court did not abuse its section 352 discretion in excluding the evidence. Questioning of the officers as to their efforts to locate the witness would have had minimal probative value and would have consumed time. Moreover, the fact that the witness was a former gang member would not show why he did not testify and would have been inflammatory.id: 15981
Testimony of witnesses from the first trial was admissible under the hearsay exception despite the denial of defendant's right of self-representation at that trial.Defendant argued the testimony of certain witnesses from his first trial was inadmissible under the former testimony exception to the hearsay rule because, having been denied his right to represent himself at the first trial, he never had the opportunity to personally cross-examine the witnesses. However, defendant's opportunity to cross-examine, albeit through appointed counsel, at the first trial was sufficient to satisfy the requirements of both the former testimony exception and the federal and state confrontation clauses. Moreover, the violation of defendant's right to represent himself does not require the exclusion of the former testimony as a remedy.id: 15905
That defense counsel chose not to vigorously cross-examine the witness at the preliminary hearing did not render her prior testimony inadmissible when she invoked her Fifth Amendment privilege at trial.A witness testified at the preliminary hearing but refused to testify at trial. Based upon her invocation of the privilege against self-incrimination, the court found she was unavailable under Evidence Code section 240. Defendant argued that despite her unavailability, her preliminary hearing testimony was inadmissible, because that testimony was unreliable and defendant's motive for cross-examining her at the preliminary hearing differed from his motive for cross-examining her at trial. However, defense counsel's testimony that he chose for strategic reasons, not to vigorously cross-examine the witness did not render her former testimony inadmissible. As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied.id: 13090
Victim suffering from rape-induced post traumatic stress disorder was unavailable to testify at trial.The trial court properly admitted the preliminary hearing testimony of a victim who was medically unavailable to testify at trial. A statutorily defined mental health expert who treated the victim diagnosed her as suffering from rape-induced post traumatic stress disorder requiring long term treatment. Based on prior and subsequent conduct postulated in a proper hypothetical question, as well as her personal treatment of the victim, the expert believed that testifying again would further harm the victim. The most recent and hysterical refusal was a few days before the unavailability hearing.id: 13091
Witness' preliminary hearing testimony was properly admitted notwithstanding that she appeared eight days after the testimony was read.Defendant argued the court erred in admitting the preliminary hearing testimony of a witness who had been subpoenaed but did not appear at the trial and could not be located. The court ruled she was unavailable within the meaning of Evidence Code section 1291. The witness was finally produced prior to the conclusion of the People's case-in-chief but counsel was not prepared to question her and she was not subsequently called as a witness. The Constitution does not mandate that cross-examination be available no later than the close of the witness' direct testimony. Moreover, the evidence supported the court's finding of due diligence in an effort to locate the witness. The preliminary hearing testimony was properly admitted.id: 13093
Because defendant could not have questioned the victim regarding her pending misdemeanors at the preliminary hearing, the court did not err in admitting the preliminary hearing testimony at trial.Defendant argued the trial court erred in admitting the victim's preliminary hearing testimony because he was unaware of her pending misdemeanor cases and therefore could not cross-examine her about them at the preliminary hearing. However, because the misdemeanors for possession of narcotics paraphernalia did not involve moral turpitude, he would not have been able to question the victim about the crimes at the preliminary hearing. Moreover, defendant was provided a full opportunity to cross-examine the victim at the preliminary hearing.id: 12824
Court did not err in finding witness unavailable after he invoked the privilege against self-incrimination.The prosecution intended to call defendant's brother as a witness at trial. After conferring with counsel, the brother decided to assert his privilege against self-incrimination. The trial court then found he was unavailable as a witness and permitted his preliminary hearing testimony to be introduced. Defendant argued the court erred in finding his brother unavailable as a witness because he did not establish that he was entitled to invoke the privilege. However, the privilege is properly invoked when a witness' answers would furnish a link in the chain of evidence needed to prosecute the witness for a crime. Here, it did not clearly appear the testimony could not have incriminated the witness had he been taken into custody on the offense. Moreover, because he had testified at the preliminary hearing, he could properly invoke the privilege to avoid exposing himself to a charge of perjury in that proceeding.id: 12739
Absent witness' preliminary hearing testimony was properly used at trial where the prosecution made reasonable efforts to locate the witness including trips to his residence and contacts with the post office, mail, hospitals and coroner.Victim's testimony given at the preliminary hearing was used at trial as the witness could not be located. Defendant argued the prosecution failed to exercise due diligence in its efforts to locate the witness. However, the prosecution had no reason to believe the witness would disappear. Moreover, they attempted to serve him three times at his home address and also tried his last two known addresses. An officer contacted the post office, jail, hospital and coroner. That the prosecution could have contacted the DMV or Social Security did not change the conclusion that reasonable efforts were taken to locate the witness.id: 9824
Abuse of discretion is the proper standard of review in examining the admission of a witness' preliminary hearing testimony.The appropriate standard of review to be employed in reviewing a claim of trial court error in admitting a witness' preliminary hearing testimony is that of abuse of discretion.id: 9825
Checking the witness' last known address, his family, the hospitals, jails and morgue constituted due diligence to secure the witness.The court properly permitted witness' preliminary hearing testimony to be read to the jury. Prior to trial, the District Attorney's investigator made numerous calls to the witness' parent's house (his last known address). The witness' mother believed he had received one of the subpoenas but could not be sure and said the witness was staying with a girlfriend and did not have an address or phone number. Another investigator testified he called local hospitals, the jails and the morgue and did not find the witness. The prosecution need not exhaust every potential avenue of investigation to satisfy its obligation to use due diligence to secure a witness.id: 9827
Court did not abuse its discretion in ruling defendant was not duly diligent in attempting to locate a witness where the investigator did not check with the DMV, jails, hospitals, or ask the prosecutor.Defendant argued the trial court erred in excluding the preliminary hearing testimony of an unavailable witness. The defense investigator went to the witness' residence and found he had been evicted. He then checked the post office for a forwarding address, the witness' high school and a high school friend who later moved to Miami. He did not check with the DMV, local jails, local hospitals or ask the prosector for a current address. The trial court did not abuse its discretion in ruling the defense investigator's efforts fell short of reasonable diligence and excluding the preliminary hearing testimony of the unavailable witness.id: 9828
Court did not err at the penalty phase in permitting the prosecutor to read the 1975 rape victim's preliminary hearing testimony to the jury.The trial court found the victim of defendant's 1975 forcible rape was unavailable as to a witness at the penalty phase and thus permitted the prosecution to read her preliminary hearing testimony to the jury. Although defendant had the opportunity to cross-examine the rape victim at the 1975 preliminary hearing, he argued the objective of the preliminary examination was dissimilar from that in the penalty phase of his capital trial. However, defendant had an interest and motive at the former hearing sufficiently similar to that which he had in his penalty phase trial, namely to discredit the witness' account of the crime. Accordingly, admission of the testimony was permissible.id: 9829
Court properly excluded the doctor's testimony relating to the alleged hypnosis of the unavailable witness.The trial court admitted the prior testimony of a witness after the witness suffered a complete memory loss prior to the second trial. Defendant argued the court erred in precluding defendant from presenting a doctor who would testify that the witness had been hypnotized. However, the witness' competence was an issue which fell within the exclusive province of the court, rather than a question of fact for the jury. Moreover, the court acted within its discretion in concluding the doctor's testimony would have been speculative and unduly time-consuming.id: 9830
Defense witness was not unavailable for purposes of permitting former testimony where efforts to locate her were minimal and evidence was not admissible under section 1291, where the motive to cross-examine changed.After a prosecution witness testified defendant sought to introduce the prior suppression hearing testimony of Zola Taylor to rebut the prosecution witness. He argued the witness was unavailable under Evidence Code section 240, and that the testimony was former testimony under section 1291. However, the witness was not unavailable under section 240 where defendant's belated attempts to locate her were minimal. A single phone call and several visits to a former address did not constitute a diligent search. Moreover, because the prosecution did not have an opportunity to cross-examine Taylor with an interest and motive similar to that which they had at trial, the evidence was not admissible under section 1291.id: 9831
District attorney's investigator's repeated attempts to make contact and hours of surveillance constituted due diligence in attempting to secure the attendance of the missing witness.The People sought to introduce the preliminary hearing testimony of a witness who was not present at trial. Defendant argued the efforts to locate the witness after the subpoena was issued consisted of one desultory attempt through the subpoena service. However, the evidence established that a member of the district attorney's office made five visits to members of the witness' family and spent several hours on several occasions surveilling the witness' house. He also contacted the witness' girlfriend to determine his whereabouts and contacted the sheriff's department in four nearby counties to determine if the witness was in custody. The People satisfied the due diligence requirement in trying to locate the witness.id: 9832
Hearsay properly admitted at the preliminary hearing may be admitted where the matter is submitted on the preliminary hearing transcript without a specific objection.Where a defendant waives his right to a full trial and stipulates to a submission on the preliminary hearing transcript without a specific objection at the preliminary hearing or at trial, hearsay which was properly admitted at the preliminary hearing may be received in evidence at trial.id: 9834
Preliminary hearing testimony was properly admitted despite certain memory lapses, where the witness died prior to trial.A prosecution witness at the preliminary hearing was unavailable to testify at trial due to his death. Defendant argued he did not have an adequate opportunity to cross-examine the witness at the preliminary hearing because at that time the witness was unable to remember some important facts. Despite some lapses of memory the witness' testimony at the preliminary hearing was lucid and coherent, and the opportunity for cross-examination was adequate.id: 9835
Testimony from the first trial was properly admitted where the witness suffered a complete memory loss prior to the second trial.Witness testified at defendant's first trial but claimed that a memory loss precluded her from offering relevant evidence at the second trial. The trial court found she was unavailable under Evidence Code section 240, subd. (a)(3) and admitted her prior testimony. The court made it clear that it found her credible and believed she lacked the recollection. Moreover, total memory loss can constitute a mental infirmity within the meaning of section 240, subd. (a)(3). The trial court did not err in rejecting defendant's request for an independent psychiatric examination of the witness to ascertain the veracity of her professed amnesia. Defendant was not denied an opportunity to cross-examine the witness because she was subjected to intense cross-examination in the fist trial and the motive remained the same. Finally, admitting the prior testimony did not violate defendant's right of confrontation.id: 9836
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.
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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