The People v. Rojas, 15 C.3d 540 (1975) p.166supp

SUBJECT

unavailability of witness

FACTS

Fight at fairgrounds between two gangs. Robert was the only one captured by police because everyone else ran out. He was given immunity to testify at the trial. He was going to testify that he drove Rojas and Ramirez to the fairgrounds. Robert remembers that Rojas fired two shots out the window.

PROCEDURE

First trial is reversed, case comes back for retrial. By this time Robert is getting cold feet. He has been threatened and his car vandalized. So the second time, Robert decideds he does not want to testify. The judge says he has to testify because he got immunity. Robert still does not testify so the judge sends him to Juvenile Hall.

ISSUE

Because Robert is at Juvenile Hall, is he unavailable? (we want to use his testimony from prior trial)

RULE

A witness is unavailable to testify when he is detained for contempt of court because he refused to testify.

HOLDING

We conclude that Robert's refusal to testify on the grounds of fear for the safety of his person and that of his family rendered him unavailable as a witness within the meaning of section 240(a)(3).

RATIONAL

The situation here is one of first impression. Our research reveals no case in point nor has any been cited to us. Infirmity - a defect of personality or weaknes of the will. Robert suffered from an infirmity because he was being detained. No sufficient reason appears to us why the former testimony of a witness who is present in court by refuses to testify because he is in fear of his safety or that of his family should not be used when that of a witness who claims prrivilege or who is absent from teh eharing and his attendance cannot be compelled or procured, can be used. To preclude the testimony of a witness refusing to testify for the reasons given by Robert would lead to an undesirable consequence. The finding that he was in contempt of court and the punishment therefor could not and did not compel Robert to testify.

NOTES

- under Federal Rule (804(2)(1)) he is clearly unavailable: refuse to testify despite a court order to do so
- the court really extended the meaning of detained. However, still this did not make the definition of "unavailablity" as broad as it is in section 240.

Created on: Tuesday, October 19, 1999 at 09:57:30 (PDT)