Conditional Examination of a Material Witness – California Penal Code Sections 1335-1336

In criminal cases in California, whether the crime alleged is a felony or misdemeanor, there exists a mechanism for deposing a material witness, under certain limited circumstances. California Penal Code sections 1335 and 1336 provide statutory authority for a procedure called a “conditional examination” in all criminal cases with the exception of death penalty cases. Pursuant to California Penal Code sections 1335 and 1336, a conditional examination may take place when a material witness is about to leave the state, or is so sick or infirm that there are reasonable grounds for apprehension that the material witness will be unable to attend the trial, or is a person 65 years of age or older, or is a dependent adult, or is a prosecution witness whose life is in jeopardy.

When is a Conditional Examination Permitted Under California Penal Code Sections 1335 and 1336?

California Penal Code section 1335 provides in pertinent part that:

“(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….”

California Penal Code section 1336 provides in pertinent part that:

“(a) When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or inform 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) 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.”

What is a Material Witness?

A material witness is someone whose testimony is material to the criminal case. For instance, the alleged victim, or a percipient witness. For example, a percipient witness in a murder or attempted murder, assault with a deadly weapon, battery, domestic violence, or criminal threats case would be critical to the issue of guilt or innocence because he or she was present at the time, and could, for instance, attest to what happened, whether the defendant was even there, or state whether the alleged victim was the aggressor and the defendant acted in self-defense.

What is a Dependent Adult?

California Penal Code section 1336, subsection (c) defines “dependent adult” as “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.” One example in which the need for a conditional examination may arise criminal cases in which the defendant is alleged to have committed some type of elder abuse.

The importance of a conditional examination cannot be overstated. If granted, this can be the one opportunity for the defendant to question a material witness. Prior appellate courts have determined that a defendant’s Constitutional right to confrontation was not violated when a videotaped recording of a conditional examination was admitted for a later criminal proceeding. Specifically, in People v. McCoy (2013) 215 Cal.App.4th 1510, the California Court of Appeals noted that a defendant’s interest and motive in questioning a victim at trial is not substantially different from when questioning a victim at a conditional examination. As such, it is imperative that a defendant, in any criminal case, whether a felony or misdemeanor, in which a conditional examination may be required, hire the best attorney that they can. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles Criminal Defense Attorney Michael Kraut knows how to effectively defend clients throughout a conditional examination and throughout all stages of their cases to get the absolute best result.

For more information about conditional examinations, and all types of felony and misdemeanor cases, and to schedule your free consultation, contact attorney Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at (888) 334-6344 or (323) 464-6453.

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