JOHN K. VAN DE KAMP Attorney General
JOHN T. MURPHY Deputy Attorney General
AGO 83-806
No. 83-806
California Attorney General Opinion
Office of the Attorney General State of California
May 11, 1984
THE
HONORABLE ROBERT H. PHILIBOSIAN, DISTRICT ATTORNEY, LOS
ANGELES COUNTY, has asked for an opinion on the following
questions relating to conditional examinations of witnesses
in criminal cases:
1. May
the deposition of a conditionally examined witness, if
otherwise admissible, be used at a preliminary hearing?
2. Will
the deposition of a conditionally examined witness when
admitted into evidence have the same effect as if the witness
had appeared and testified at the preliminary hearing or the
trial?
3. Does
the procedure for the conditional examination of a witness
apply in a misdemeanor case?
4. May
a witness be conditionally examined when he is about to leave
this state for another state which has adopted the Uniform
Act to Secure the Attendance of Witnesses from without the
State in Criminal Cases?
5. Will
notice to the defendant by the police that a witness will be
conditionally examined commence the running of the three
days' notice period?
6. How
is the three days' notice period calculated?
7. May
a conditional examination be conducted on less than three
days' notice?
8. Is a
hearing always necessary on an application for a conditional
examination?
9. May
the prosecutor request bail to ensure the defendant's
presence at a conditional examination?
10. May
a continuance be granted in the taking of a conditional
examination?
11.
Does the defendant waive his rights to counsel and to
confrontation when his counsel does not attend the
conditional examination?
12.
When the defendant's counsel does not attend the
conditional examination, may the judge ordering the
examination or the magistrate presiding at the examination
appoint another counsel to represent the defendant at the
examination?
13. May
a conditional examination be conducted in the absence of the
defendant and his counsel?
14.
Must the party introducing the transcript of the conditional
examination at the preliminary hearing or at the trial meet
the requirements of Evidence Code section 240?
15. May
the magistrate presiding over the preliminary hearing, who
was also the magistrate presiding over the conditional
examination, take judicial notice of the conditional
examination in lieu of the production of a transcript?
16. May
a videotape of a conditional examination be used in evidence
in lieu of a transcript?
CONCLUSIONS
1. The
deposition of a conditionally examined witness, if otherwise
admissible, may be used at a preliminary hearing.
2. The
deposition of a conditionally examined witness when admitted
into evidence will have the same effect as if the witness had
appeared and testified at the preliminary hearing or the
trial.
3. The
procedure for the conditional examination of a witness
applies in a misdemeanor case.
4. A
witness may be examined conditionally when he is about to
leave this state for another state which has adopted the
Uniform Act to Secure the Attendance of Witnesses from
without the State in Criminal Cases.
5.
Notice to the defendant by the police that a witness will be
conditionally examined does not commence the running of the
three days' notice period.
6. The
three days' notice period is calculated pursuant to Civil
Code section 10.
7. A
conditional examination, when ordered, may be conducted on
less than three days' notice.
8. A
hearing is necessary on an application for a conditional
examination unless the parties stipulate to the examination
order, the hearing is waived by the parties or the
application is uncontested.
9. The
prosecutor may request bail to ensure the defendant's
presence at a conditional examination of a witness.
10. A
continuance may be granted in the taking of a conditional
examination.
11. The
fact that defendant's counsel does not attend the
conditional examination does not in itself establish that the
defendant has waived his rights to counsel and to
confrontation.
12.
When the defendant's counsel does not attend the
conditional examination the judge ordering the examination or
the magistrate presiding over it may appoint another counsel
to represent the defendant at the examination.
13. A
conditional examination may be conducted in the absence of
the defendant and his counsel but the transcript thereof may
be inadmissible if the defendant was denied his rights to
counsel and to confrontation.
14. The
party introducing the transcript of the conditional
examination at the preliminary hearing or at the trial must
meet the requirements of Evidence Code section 240.
15. The
magistrate presiding over the preliminary hearing, who was
also the magistrate presiding over the conditional
examination, may not take judicial notice of the conditional
examination in lieu of the production of a transcript.
16. A
videotape of a conditional examination may not be used in
evidence in lieu of a transcript.
ANALYSIS
I
THE
DEPOSITION OF A CONDITIONALLY EXAMINED WITNESS, IF OTHERWISE
ADMISSIBLE, MAY BE USED AT A PRELIMINARY HEARING.
Penal
Code
1
sections 1335-1345 allow for the examination by deposition
before a magistrate of a material witness who is about to
leave the state or who is so sick or infirm as to afford
reasonable grounds for apprehension that he will be unable to
attend trial. (See Cal. Const., art. I, § 15.) Section
1335 provides as follows:
"When a defendant has been charged with a public
offense triable in any court, he 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 right to counsel as provided by law, have witnesses
examined conditionally in his or their behalf, as
prescribed in this chapter."
Section
1336 provides as follows:
"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 will be unable to attend the trial, the defendant
or the people may apply for an order that the witness be
examined conditionally."
We are
asked whether the testimony of a witness examined
conditionally may be used at a preliminary hearing. We
conclude that it may be so used.
Section
1335 provides two threshold requirements to the use of the
conditional examination procedure. The defendant must be
"charged with a public offense triable in any
court" and the defendant must be "fully informed of
his right to counsel as provided by law." Both
requirements will be met when the defendant is arraigned
before commencement of the preliminary hearing.
A
defendant is charged, inter alia, when there is a
"complaint filed with a magistrate charging a public
offense of which the superior court has original trial
jurisdiction . . . ." (§§ 691(4), 949-950,
959.) When the defendant is arraigned the complaint is read
to him and a copy delivered to him. (§§ 859, 859a,
859b, 987-990.) At this time he is also advised of his right
to counsel. (§§ 859, 987-990.) Upon the defendant
being so charged and so advised, the defendant or the
prosecutor may then apply to the court for an order to have a
witness examined conditionally. (§ 1338.) The
application must meet the requirements of section 1337:
"The
application must be made upon affidavit stating:
"1. The nature of the offense charged;
"2. The state of the proceedings in the action;
"3. The name and residence of the witness, and that
his testimony is material to the defense or the prosecution
of the action;
"4. That the witness is about to leave the state, or
is so sick or infirm as to afford reasonable grounds for
apprehending that he will not be able to attend the
trial."
The
application also should be made upon at least three days'
notice to the...
