Witness Unavailability in Criminal Proceedings

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The concept of witness unavailability in criminal law affects the admissibility of evidence and the defendant’s constitutional right to confront their accusers.  In California, witness unavailability is defined under Evidence Code section 240, while the Federal Rules of Evidence provide a similar definition in Rule 804. 

Witness Unavailability in California

California Evidence Code Section 240 defines a witness as “unavailable” if they fall into one of the following categories:

Exemption by Law: A witness may be deemed unavailable if they are exempt from testifying due to a legal privilege.  

Refusal to Testify: If a witness refuses to testify despite receiving a court order, they can be considered unavailable.

Incapacity: Witnesses who are unable to testify due to physical or mental incapacity are also considered unavailable.  This may include witnesses suffering from severe illness, amnesia, or mental incompetence.

Death: Witnesses who have passed away and are therefore unavailable for court proceedings.

Examples of Witness Unavailability in California 

Spousal Privilege: In a criminal case involving allegations of domestic violence, the defendant’s spouse may be considered unavailable under California Evidence Code section 970, which recognizes the spousal privilege. 

Refusal Due to Fear: A key eyewitness to a gang-related murder may refuse to testify out of fear for their life.  Despite a court order and protective measures, the witness still refuses to take the stand, rendering them unavailable.

Incapacity Due to Trauma: A sexual assault victim may suffer severe psychological trauma, rendering them incapable of providing coherent testimony.  Their incapacity due to mental trauma can be considered unavailability under section 240. 

Witness Unavailability under Federal Rules of Evidence 

The Federal Rules of Evidence provide a similar framework for determining witness unavailability through Rule 804. In federal criminal proceedings, a witness is considered unavailable if they fit into one of the following categories:

Exemption by Law or Rule: A witness may be deemed unavailable if they are exempt from testifying based on a legal privilege, constitutional right, or court rule.

Refusal to Testify: Like in California, a witness who refuses to testify despite a court order can be considered unavailable in federal proceedings.

Incapacity: Witnesses who are unable to testify due to physical or mental incapacity are also considered unavailable under Rule 804.  This includes witnesses with serious illnesses, mental disorders, or memory impairments.

Death: When a witness is deceased, they are deemed unavailable.

Examples of Witness Unavailability Under Federal Rules of Evidence

Spousal Privilege: In a federal criminal case involving allegations of wire fraud, a defendant’s spouse may refuse to testify against them based on spousal privilege recognized under Rule 501.

Refusal Due to Self-Incrimination: A potential witness, who could provide crucial information regarding a white-collar crime, may invoke the Fifth Amendment right against self-incrimination and refuse to testify.  Despite a court order, they persist in their refusal, rendering them unavailable.

Incapacity Due to Mental Illness: In a federal conspiracy to commit domestic terrorism case, a witness who was present at the scene of the alleged crime may be diagnosed with severe post-traumatic stress disorder that incapacitates them from providing coherent testimony. Their incapacity due to mental illness makes them unavailable under Rule 804.

If you have been charged a crime, it is critical that you discuss your case immediately with a knowledgeable and aggressive criminal defense attorney as soon as possible.  As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has an in-depth knowledge of witness unavailability in both California and federal cases.<>

For more information about the criminal justice process, and to schedule your free consultation, contact 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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