witness defense in California

2015Analysis We begin our discussion of the issue by noting that it was appropriate for the prosecutor to call Kelly as a witness, even though it was relatively certain Kelly would refuse to answer questions. “[A] prosecutor is not required to accept at face value every asserted claim of privilege, and he may compel a witness to claim the privilege against self-incrimination on a question-by-question basis.” (People v. Shipe (1975) 49 Cal.App.3d 343, 349 (Shipe).) However, a prosecutor “may not, under the guise of cross- examination, get before the jury what is tantamount to devastating direct tes

1995(See, e.g., People v. Webster[, supra,] 14 Cal.App.3d [at p.] 743 . . . ; People v. Shipe (1975) 49 Cal.App.3d 343, 349 . . . ; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938 . . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant.

1993It has been held that a litigant, other than the witness, does not have the right to force the witness to claim the privilege (People v. Chandler, supra, 17 Cal.App.3d 798, 803 ), to claim the privilege on the witness’s behalf (People v. Varnum (1967) 66 Cal.2d 808, 812 [ 59 Cal.Rptr. 108 , 427 P.2d 772 ]), or to assume that the witness will claim the privilege (Rogers v. United States, supra, 340 U.S. 367, 370-371 [ 95 L.Ed. 344 , 348]; People v. Ford, supra, 45 Cal.3d 431, 439-440 ).

1969(Rogers v. United States, 340 U.S. 367 [ 95 L.Ed. 344 , 71 S.Ct. 438 , 19 A.L.R.2d 378 ]; People v. Barker, 232 Cal.App.2d 178 [ 42 Cal.Rptr. 651 ].) Of course, if the trial judge has reason to believe that a witness might be charged with a crime arising out of the events to which he might testify, it would be the court’s duty to fully advise the witness of his privilege against self-incrimination (see People v. Barker, supra).

1995(See, e.g., People v. Webster[, supra,] 14 Cal.App.3d [at p.] 743 . . . ; People v. Shipe (1975) 49 Cal.App.3d 343, 349 . . . ; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938 . . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant.

1995(See, e.g., People v. Webster [, supra, ] 14 Cal.App.3d [at p.] 743 . . .; People v. Shipe (1975) 49 Cal.App.3d 343 , 349 . . .; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938. . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant. ( State v. Johnson (1955) 77 Idaho 1 . . .; People v. Den Uyl (1947) 318 Mich. 645 . . .; Mills v. United States (4th Cir. 1960) 281 F.2d 736 .) [¶] We conclude that a witness who has been convicted of a crime and who has appealed that conviction cannot be com

1991Neither contention is persuasive. (47) To be sure, a prosecutor may not make "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." ( Namet v. United States (1963) 373 U.S. 179, 186 [ 10 L.Ed.2d 278, 283 , 83 S.Ct. 1151 ].) And it has been held to be improper to permit a witness to claim a testimonial privilege in front of the jury where the witness's intention not to testify is known beforehand. ( United States v. Chapman (11th Cir.1989) 866 F.2d 1326 , *233 1333.) We have recently approved the procedure whereby the Fifth Amendmen

1991Neither contention is persuasive. (47) To be sure, a prosecutor may not make "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." ( Namet v. United States (1963) 373 U.S. 179, 186 [ 10 L.Ed.2d 278, 283 , 83 S.Ct. 1151 ].) And it has been held to be improper to permit a witness to claim a testimonial privilege in front of the jury where the witness's intention not to testify is known beforehand. ( United States v. Chapman (11th Cir.1989) 866 F.2d 1326 , *233 1333.) We have recently approved the procedure whereby the Fifth Amendmen

2021(Cf. U.S. v. Quinn, supra, 728 F.3d at pp. 259-260 [“If the Government refuses to immunize the witness in violation of the defendant’s due process right, the trial court can dismiss the charges against the defendant”], italics added, fn. omitted.) Further, regarding the failure to object to the prosecutor’s closing arguments, “ ‘[t]he primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.’ ” (People v. Seumanu

2021(Id. at pp. 1051-1052.) The appropriate circumstances require a finding of prosecutorial misconduct—“ ‘intemperate behavior [that] is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of [federal] due process.’ ” (Id. at p. 1052.) Without adopting them as California standards, the Supreme Court set forth the factors articulated in two federal cases, Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 , 972 and U.S. v. Quinn (3d Cir. 2013) 728 F.3d 243, 251-257 , to evaluate claims of prosecutorial mis

2016The court rejected a defense instruction that the jury should "disregard that [Acosta] was called as a witness." Aleman contends that his right to a fair trial was compromised because the prosecution was allowed to ask Acosta questions, which she refused to answer. 10 A witness cannot be compelled to invoke the Fifth Amendment in front of the jury, nor can the prosecution argue negative inferences about it. ( People v. Morgain (2009) 177 Cal.App.4th 454 , 466, 99 Cal.Rptr.3d 301 .) But if the witness has immunity-and no constitutional right to refuse to testify-the prosecutor may urge the jury

2016The court rejected a defense instruction that the jury should "disregard that [Acosta] was called as a witness." Aleman contends that his right to a fair trial was compromised because the prosecution was allowed to ask Acosta questions, which she refused to answer. 10 A witness cannot be compelled to invoke the Fifth Amendment in front of the jury, nor can the prosecution argue negative inferences about it. ( People v. Morgain (2009) 177 Cal.App.4th 454 , 466, 99 Cal.Rptr.3d 301 .) But if the witness has immunity-and no constitutional right to refuse to testify-the prosecutor may urge the jury

1993It has been held that a litigant, other than the witness, does not have the right to force the witness to claim the privilege (People v. Chandler, supra, 17 Cal.App.3d 798, 803 ), to claim the privilege on the witness’s behalf (People v. Varnum (1967) 66 Cal.2d 808, 812 [ 59 Cal.Rptr. 108 , 427 P.2d 772 ]), or to assume that the witness will claim the privilege (Rogers v. United States, supra, 340 U.S. 367, 370-371 [ 95 L.Ed. 344 , 348]; People v. Ford, supra, 45 Cal.3d 431, 439-440 ).

1991Neither contention is persuasive. (47) To be sure, a prosecutor may not make "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." ( Namet v. United States (1963) 373 U.S. 179, 186 [ 10 L.Ed.2d 278, 283 , 83 S.Ct. 1151 ].) And it has been held to be improper to permit a witness to claim a testimonial privilege in front of the jury where the witness's intention not to testify is known beforehand. ( United States v. Chapman (11th Cir.1989) 866 F.2d 1326 , *233 1333.) We have recently approved the procedure whereby the Fifth Amendmen

2021If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross- examination by that defendant, the previous testimony may be admitted at trial.’ ” (People v. Valencia (2008) 43 Cal.4th 268, 291 (Valencia).) “[F]or the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that which defendant has at the hearing at which the testimony is admitted.” (Id. at p. 292.) Although both Parker’s and Bonner’s counsel cros

2013If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must “have made a good-faith effort to obtain his presence at trial.” ‟ [Citation.] California law and federal constitutional requirements are the same in this regard. [Citation.] Moreover, for the prior testimony to be admissible, the defendant

2015When one who actually participated in the crime testifies about exactly how it occurred, it naturally tends to carry great weight with a jury. “[A]n accomplice’s firsthand knowledge of the details of the criminal conduct allows for the construction of plausible falsehoods not easily disproved.” (People v. Guiuan, supra, 18 Cal.4th at p. 575 (conc. opn. of Kennard, J.); see In re Mitchell P. (1978) 22 Cal.3d 946, 955 [ 151 Cal.Rptr. 330 , 587 P.2d 1144 ]; People v. Tewksbury (1976) 15 Cal.3d 953, 967 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ].) The same cautionary instruction is not necessary when t

2015When one who actually participated in the crime testifies about exactly how it occurred, it naturally tends to carry great weight with a jury. “[A]n accomplice’s firsthand knowledge of the details of the criminal conduct allows for the construction of plausible falsehoods not easily disproved.” (People v. Guiuan, supra, 18 Cal.4th at p. 575 (conc. opn. of Kennard, J.); see In re Mitchell P. (1978) 22 Cal.3d 946, 955 [ 151 Cal.Rptr. 330 , 587 P.2d 1144 ]; People v. Tewksbury (1976) 15 Cal.3d 953, 967 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ].) The same cautionary instruction is not necessary when t

2015(See People v. Harris (1989) 47 Cal.3d 1047, 1099 [ 255 Cal.Rptr. 352 , 767 P.2d 619 ] [improper for court to “single out a particular witness in an instruction”].) The unfair “singling out” complaint advanced by defendant was rejected in Saddler, supra, 24 Cal.3d at pages 680-681, and Rodriguez, supra, 170 Cal.App.4th at page 1067, and we likewise reject it here.

2015(See People v. Harris (1989) 47 Cal.3d 1047, 1099 [ 255 Cal.Rptr. 352 , 767 P.2d 619 ] [improper for court to “single out a particular witness in an instruction”].) The unfair “singling out” complaint advanced by defendant was rejected in Saddler, supra, 24 Cal.3d at pages 680-681, and Rodriguez, supra, 170 Cal.App.4th at page 1067, and we likewise reject it here.

1995(See, e.g., People v. Webster [, supra, ] 14 Cal.App.3d [at p.] 743 . . .; People v. Shipe (1975) 49 Cal.App.3d 343 , 349 . . .; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938. . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant. ( State v. Johnson (1955) 77 Idaho 1 . . .; People v. Den Uyl (1947) 318 Mich. 645 . . .; Mills v. United States (4th Cir. 1960) 281 F.2d 736 .) [¶] We conclude that a witness who has been convicted of a crime and who has appealed that conviction cannot be com

1995(See, e.g., People v. Webster [, supra, ] 14 Cal.App.3d [at p.] 743 . . .; People v. Shipe (1975) 49 Cal.App.3d 343 , 349 . . .; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938. . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant. ( State v. Johnson (1955) 77 Idaho 1 . . .; People v. Den Uyl (1947) 318 Mich. 645 . . .; Mills v. United States (4th Cir. 1960) 281 F.2d 736 .) [¶] We conclude that a witness who has been convicted of a crime and who has appealed that conviction cannot be com

2022(Cf. Masters, supra, 62 Cal.4th at p. 1053 [as the prosecutor explained that “no evidence was presented to corroborate [the witness’s] statements,” defendant “failed to show there was no countervailing governmental interest against granting immunity”; cf. People v. Capers (2019) 7 Cal.5th 989, 1009 [“There is also no indication that the prosecutor committed misconduct when he refused to grant the witness immunity,” as “[h]e explained to the court that [the witness] had no credibility”].) 8 Defendant’s contention that the prosecutor engaged in improper “gatekeeping to judge the credibility of a

2021(Id. at pp. 1051-1052.) The appropriate circumstances require a finding of prosecutorial misconduct—“ ‘intemperate behavior [that] is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of [federal] due process.’ ” (Id. at p. 1052.) Without adopting them as California standards, the Supreme Court set forth the factors articulated in two federal cases, Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 , 972 and U.S. v. Quinn (3d Cir. 2013) 728 F.3d 243, 251-257 , to evaluate claims of prosecutorial mis

2025Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing.” Thus, “when a hearsay statement by a declarant who is not a witness is admitted into evidence by the prosecution, an inconsistent hearsay statement by the same person offered by the defense is admissible to attack the declarant’s credibility.” (People v. Corella (2004) 122 Cal.App.4th 461, 470 .) “The purpose of section 1202 is to assure fairness to the party against whom hearsay evidence is admitted without an opportu

2005(Ohio v. Roberts (1980) 448 U.S. 56, 66 [ 65 L.Ed.2d 597 , 100 S.Ct. 2531 .)” (People v. Corella (2004) 122 Cal.App.4th 461, 467 [ 18 Cal.Rptr.3d 770 ].) In Crawford , the Supreme Court announced a new test to determine whether the admission of a testimonial statement by a witness is a violation of the confrontation clause.

2020A declarant’s credibility is “ ‘important only if the prosecution was using his statement to prove the truth of its contents—in other words, his credibility mattered only if his statement was in fact inadmissible hearsay.’ ” (People v. Hopson (2017) 3 Cal.5th 424, 434 ; see People v. Curl (2009) 46 Cal.4th 339, 361-362 .) As we have explained, Smith’s statements were clearly nonhearsay; they were not offered for the truth of the matter stated.

2015Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing.” (Italics added.) “‘Section 1202 creates “a uniform rule permitting a hearsay declarant to be impeached by inconsistent statements in all cases, whether or not the declarant has been given an opportunity to explain or deny the inconsistency.” [Citation.] [¶] The purpose of section 1202 is to assure fairness to the party against whom hearsay evidence is admitted without an opportunity for cross-examination.’ [Citation.]”

2019I, § 28, subd. (f)(4).) “In People v. Castro (1985) 38 Cal.3d 301 . . . , we held that ‘prior felony convictions’ within the meaning of article I, section 28, subdivision (f) are such as necessarily involve moral turpitude, i.e., a readiness to do evil. [Citation.] [¶] In Castro, we also held that trial courts retain their discretion under Evidence Code section 352 to bar impeachment with such convictions when their probative value is substantially outweighed by their prejudicial effect. [Citation.] We made plain that in exercising their discretion, trial courts should continue to be guided --

1997(See generally, People v. Beagle (1972) 6 Cal.3d 441, 451-453 [ 99 Cal.Rptr. 313 , 492 P.2d 1 ].) Defendant submitted' no other theory of admissibility.

2015Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing.” (Italics added.) “‘Section 1202 creates “a uniform rule permitting a hearsay declarant to be impeached by inconsistent statements in all cases, whether or not the declarant has been given an opportunity to explain or deny the inconsistency.” [Citation.] [¶] The purpose of section 1202 is to assure fairness to the party against whom hearsay evidence is admitted without an opportunity for cross-examination.’ [Citation.]”

1997(See generally, People v. Wheeler (1992) 4 Cal.4th 284, 290-293 [ 14 Cal.Rptr.2d 418 , 841 P.2d 938 ]; cf. People v. Mickle (1991) 54 Cal.3d 140, 168 [ 284 Cal.Rptr. 511 , 814 P.2d 290 ] [reaching a different conclusion under post-Proposition 8 law].) Evidence Code section 1202 limited impeachment of a hearsay declarant to that which “would have been admissible had the declarant been a witness at the hearing.” As the trial court correctly found, the proffered evidence constituted specific instances of conduct, which, under pre-Proposition 8 law, Evidence Code section 787 were prohibited “to at

2010Code, § 1368 hearing, in light of the judicial rule of immunity that, like use and derivative use immunity, adequately protects his 5th Amend. rights]; People v. Superior Court ( Kaufman ) (1974) 12 Cal.3d 421, 427-429, 433 [ 115 Cal.Rptr. 812 , 525 P.2d 716 ] [trial court may compel a witness to answer questions in deposition and at trial, over the witness's assertion of the 5th Amend. privilege against self-incrimination, by granting the witness immunity against the use of the deposition answers in any criminal proceeding]; Fuller, supra, 87 Cal.App.4th at pp. 308-311 [trial court may fashio

2010Code, § 1368 hearing, in light of the judicial rule of immunity that, like use and derivative use immunity, adequately protects his 5th Amend. rights]; People v. Superior Court ( Kaufman ) (1974) 12 Cal.3d 421, 427-429, 433 [ 115 Cal.Rptr. 812 , 525 P.2d 716 ] [trial court may compel a witness to answer questions in deposition and at trial, over the witness's assertion of the 5th Amend. privilege against self-incrimination, by granting the witness immunity against the use of the deposition answers in any criminal proceeding]; Fuller, supra, 87 Cal.App.4th at pp. 308-311 [trial court may fashio

1995(See, e.g., People v. Webster [, supra, ] 14 Cal.App.3d [at p.] 743 . . .; People v. Shipe (1975) 49 Cal.App.3d 343 , 349 . . .; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938. . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant. ( State v. Johnson (1955) 77 Idaho 1 . . .; People v. Den Uyl (1947) 318 Mich. 645 . . .; Mills v. United States (4th Cir. 1960) 281 F.2d 736 .) [¶] We conclude that a witness who has been convicted of a crime and who has appealed that conviction cannot be com

1995(See, e.g., People v. Webster [, supra, ] 14 Cal.App.3d [at p.] 743 . . .; People v. Shipe (1975) 49 Cal.App.3d 343 , 349 . . .; People v. Kizzee (1979) 94 Cal.App.3d 927 , 938. . . .) Courts in other jurisdictions have held that the pendency of an appeal shields a witness from a requirement that he testify at the trial of a codefendant. ( State v. Johnson (1955) 77 Idaho 1 . . .; People v. Den Uyl (1947) 318 Mich. 645 . . .; Mills v. United States (4th Cir. 1960) 281 F.2d 736 .) [¶] We conclude that a witness who has been convicted of a crime and who has appealed that conviction cannot be com