Chapter 2 - §12. Conditional examinations

• Jurisdiction: United States

§12. Conditional examinations

In a civil trial, deposition testimony can be admitted for impeachment purposes and as substantive evidence. See CCP §2025.620. But in a criminal trial, "conditional examinations" of an in-state witness can be read in evidence or shown by videotape if the following statutory requirements are met:

§12.1. When permitted.

A witness can be conditionally examined if the prosecution or defense can demonstrate any of the following grounds:

1. The witness's life is in jeopardy and the defendant has been charged with a serious felony or domestic violence. Pen. C. §1335(b); see Pen. C. §1335(e) (defining "domestic violence" and "serious felony").

2. A victim or material witness has been or is being dissuaded by the defendant or a person acting on the defendant's behalf from cooperating with the prosecutor or testifying at trial by intimidation or physical threat and the defendant has been charged with domestic violence. Pen. C. §1335(d); see Pen. C. §1335(e)(1) (defining "domestic violence").

3. A victim or material witness has been or is being dissuaded by the defendant or a person acting on the defendant's behalf from cooperating with the prosecutor or testifying at trial by intimidation or physical threat and the defendant has been charged with human trafficking under Pen. C. §236.1. Pen. C. §1335(c)(1).

4. A material witness will not attend the trial because she is under the direct control of the defendant or another person involved in human trafficking and the defendant has been charged with human trafficking under Pen. C. §236.1. Pen. C. §1335(c)(2).

5. A material witness is about to leave the state. Pen. C. §1336(a).

6. A material witness is so sick or infirm that there are reasonable grounds to believe the witness will not be able to attend the trial. Id.

7. A material witness is 65 years of age or older. Id.

8. A material witness is a dependent adult as defined by Pen. C. §1336(c). Pen. C. §1336(a).

§12.2. Procedure for requesting examination.

1. Application. An application requesting a conditional examination must be made to the court. Pen. C. §1338. The application must be supported by an affidavit that states the following:

(1) The nature of the charged offense. Pen. C. §1337(a).

(2) The state of the proceedings in the case. Pen. C. §1337(b).

(3) The name and residence of the witness, and that her testimony is material to the defense or the prosecution. Pen. C. §1337(c).

(4) The grounds that support a conditional...