Miscellaneous ProceedingsExamination of Witnesses Conditionally

Section § 1335

Explanation

This law allows the conditional examination of witnesses in certain criminal cases before trial. If a defendant is charged with a public offense, either the defendant or the prosecution can have witnesses examined beforehand if the defendant understands their right to a lawyer. This applies especially in cases involving serious felonies, domestic violence, or human trafficking. The law provides special provisions for cases where witnesses might be threatened or intimidated to prevent them from testifying. It also defines what is meant by serious felonies and domestic violence within this context.

(a)CA Penal Law Code § 1335(a) If a defendant has been charged with a public offense triable in a court, he or she in all cases, and the people in cases other than those for which the punishment may be death, may, if the defendant has been fully informed of his or her right to counsel as provided by law, have witnesses examined conditionally in his or her or their behalf, as prescribed in this chapter.
(b)CA Penal Law Code § 1335(b) If a defendant has been charged with a serious felony or in a case of domestic violence, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter, if there is evidence that the life of the witness is in jeopardy.
(c)Copy CA Penal Law Code § 1335(c)
(1)Copy CA Penal Law Code § 1335(c)(1) If a defendant has been charged with human trafficking, pursuant to Section 236.1, and there is evidence that the victim or material witness has been or is being dissuaded by the defendant or a person acting on behalf of the defendant, by intimidation or physical threat, from cooperating with the prosecutor or testifying at trial, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter.
(2)CA Penal Law Code § 1335(c)(2) If a defendant has been charged with human trafficking, pursuant to Section 236.1, and the court finds that there is a reasonable basis to believe that the material witness will not attend the trial because he or she is under the direct control of the defendant or another person involved in human trafficking and, by virtue of this relationship, the defendant or other person seeks to prevent the witness or victim from testifying, and if the defendant has been fully informed of his or her right to counsel as provided by law, the court may have a witness examined conditionally as prescribed in this chapter.
(d)CA Penal Law Code § 1335(d) If a defendant has been charged with a case of domestic violence and there is evidence that a victim or material witness has been or is being dissuaded by the defendant or a person acting on behalf of the defendant, by intimidation or a physical threat, from cooperating with the prosecutor or testifying at trial, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter.
(e)CA Penal Law Code § 1335(e) For the purposes of this section, the following definitions shall apply:
(1)CA Penal Law Code § 1335(e)(1) “Domestic violence” means a public offense arising from acts of domestic violence as defined in Section 13700.
(2)CA Penal Law Code § 1335(e)(2) “Serious felony” means a felony listed in subdivision (c) of Section 1192.7 or a violation of Section 11351, 11352, 11378, or 11379 of the Health and Safety Code.
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Section § 1336

Explanation

This law outlines circumstances under which a witness critical to a legal case might be examined before the trial if waiting for the trial might make it impossible to hear their testimony. This applies if the witness is about to leave California, is very sick, over 65 years old, or is a dependent adult, meaning they have physical or mental limitations and are between 18 and 65 years old. Additionally, if a witness's life is threatened, a pre-trial examination can be requested. This is to ensure their testimony is preserved even if they cannot be present later.

(a)CA Penal Law Code § 1336(a) When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, or is a person 65 years of age or older, or a dependent adult, the defendant or the people may apply for an order that the witness be examined conditionally.
(b)CA Penal Law Code § 1336(b) When there is evidence that the life of a witness is in jeopardy, the defendant or the people may apply for an order that the witness be examined conditionally.
(c)CA Penal Law Code § 1336(c) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, who is between the ages of 18 and 65, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes any person between the ages of 18 and 65, who is admitted as an inpatient to a 24-hour facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
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Section § 1337

Explanation

This law explains what's needed to request that a witness's testimony be preserved ahead of a trial. An application must be made with a sworn statement covering four key areas: the type of crime charged, the current stage of the legal process, the witness's details and why their testimony is important, and certain conditions justifying their absence from trial.

Reasons for considering a witness's early testimony include if they are leaving the state, too sick to attend, elderly, or in danger, or if the witness is being threatened in cases related to human trafficking or domestic violence.

The application shall be made upon affidavit stating all of the following:
(a)CA Penal Law Code § 1337(a) The nature of the offense charged.
(b)CA Penal Law Code § 1337(b) The state of the proceedings in the action.
(c)CA Penal Law Code § 1337(c) The name and residence of the witness, and that his or her testimony is material to the defense or the prosecution of the action.
(d)CA Penal Law Code § 1337(d) That any of the following are true:
(1)CA Penal Law Code § 1337(d)(1) The witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or is a person 65 years of age or older, or a dependent adult, or that the life of the witness is in jeopardy.
(2)CA Penal Law Code § 1337(d)(2) That the witness is a victim or a material witness in a human trafficking case who has been or is being intimidated or threatened, as described in paragraph (1) of subdivision (c) of Section 1335, from cooperating with the prosecutor or testifying at trial.
(3)CA Penal Law Code § 1337(d)(3) That the witness is a victim or material witness in a domestic violence case who has been or is being intimidated or threatened, as described in subdivision (d) of Section 1335 from cooperating with the prosecutor or testifying at trial.
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Section § 1338

Explanation

To apply for a legal action or request a decision from the court, you need to notify the other party involved at least three days in advance.

The application may be made to the court or a judge thereof, and must be made upon three days’ notice to the opposite party.
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Section § 1339

Explanation

This law says that if a court or judge decides it's necessary to question a witness, they can order that the witness be questioned at a specific time and place. This questioning will happen in front of a designated magistrate.

If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and before a magistrate designated therein.
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Section § 1340

Explanation

This law section states that a defendant has the right to be physically present with their lawyer during a witness examination. If the defendant is in custody, the responsible officer must ensure their presence at the examination and keep them within sight and hearing of the witness.

If a witness is too sick or weak to attend in person, the court may allow the examination to occur via a video conference where all parties can see and hear each other. However, this does not mean the court is obliged to provide video conferencing equipment.

(a)CA Penal Law Code § 1340(a)  The defendant has the right to be present in person and with counsel at the examination, and if the defendant is in custody, the officer in whose custody he or she is, must be informed of the time and place of the examination, and must take the defendant thereto, and keep him or her in the presence and hearing of the witness during the examination.
(b)CA Penal Law Code § 1340(b) If the court determines that the witness to be examined is so sick or infirm as to be unable to participate in the examination in person, the court may allow the examination to be conducted by a contemporaneous, two-way video conference system, in which the parties and the witness can see and hear each other via electronic communication.
(c)CA Penal Law Code § 1340(c) Nothing in this section is intended to require the court to acquire two-way video conference equipment for these purposes.
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Section § 1341

Explanation

This law says that if a judge finds out that the reason given for questioning a witness outside of the trial is false or was just a trick to dodge having the witness examined during the trial, then the questioning outside of court won't be allowed.

If, at the designated time and place, it is shown to the satisfaction of the magistrate that the stated ground for conditional examination is not true or that the application was made to avoid the examination of the witness at the trial, the examination cannot take place.
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Section § 1342

Explanation

This section means that if a witness is needed for a legal examination, the judge or magistrate overseeing the case can issue a subpoena to make sure the witness shows up. A subpoena is a legal order to appear in court.

The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken.
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Section § 1343

Explanation

This law requires that a witness's testimony must be written down and verified just like the testimony in criminal information cases. Also, it's allowed to make a video recording of the testimony.

The testimony given by the witness shall be reduced to writing and authenticated in the same manner as the testimony of a witness taken in support of an information. Additionally, the testimony may be video-recorded.
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Section § 1344

Explanation

This law requires that after a deposition is taken, the magistrate must seal it and send it to the court clerk where the case is being heard or will be heard.

The deposition taken must, by the magistrate, be sealed up and transmitted to the Clerk of the Court in which the action is pending or may come for trial.
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Section § 1345

Explanation

This law states that if a witness cannot be present at a trial, their recorded deposition (either written or video) can be used as evidence. The court must determine the witness is unavailable per specific legal criteria. During the trial, any objections to questions or answers in the deposition can be made just as if the witness were testifying in person.

The deposition, or a certified copy of it, may be read in evidence, or if the examination was video-recorded, that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240 of the Evidence Code. The same objections may be taken to a question or answer contained in the deposition or video-recording as if the witness had been examined orally in court.
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