In a lot of Los Angeles cases, prosecutors are trying to get around this right to face their accuser. So, in general, any time there is a criminal case and someone is a witness against somebody and their evidence is critical, material and crucial in order to prosecute and convict that person, that person has to come into court face-to-face and testify against the criminal defendant, otherwise their testimony in not allowed in. It's declared hearsay, but there's a whole bunch of different exceptions to that.
For example, at a preliminary hearing in a felony criminal case in Los Angeles, witnesses — even material witnesses — don't have to come to the preliminary hearing. The prosecutor can use the detective to testify to what those witnesses told the detective or use police officers to testify to what those witnesses said.
It's their choice. That's Proposition 115, which — for the convenience of witnesses — lets them do that at a preliminary hearing in a felony case. But, if that same witness doesn't show up for trial, most of the time, that testimony is not going to be allowed in.
However, even this right is not absolute. The Crawford case in domestic violence cases has carved out an exception, allowing all sorts of different testimony and evidence. For instance, a 9-1-1 tape can now be admitted as evidence, further complicating the right to face one's accuser.
Cross Examination of Witnesses
They're letting in a body cam video. I see prosecutors trying to get that in when their witness doesn't show up and is not present to be cross-examined. So, these are obviously all things that California criminal defense attorneys are going to argue against because they are not getting the right for their client to face their accuser. You should be able to cross-examine that accuser.
The jury should be able to look at the person and see whether they're lying when they get challenged on cross-examination. So, these are all things that must be argued and must be vigorously fought for.
Otherwise, there's a recent case I saw federally where they were trying to let a pregnant witness — who was a material crucial witness in the case — testify by way of two-way radio because she was seven months pregnant. The court overturned that verdict because they said you have to have a right to face your accuser.
We want the jury to see what the witness looks like, listen to them testify face-to-face, and, of course, be able to cross-examine them and see how they react to certain questions. There are certain things witnesses do. I hear all the time when I do jury trials we look at that witness. We didn't believe a word that they said.
Therefore, it is our collective responsibility, as a defense community, to continue this fight. We must ensure that our clients have the right to face their accusers. As prosecutors and judges attempt to circumvent this right, we must stand firm and fight them at every single turn.
If you find yourself in a situation where you're innocent and believe you have the right to face your accuser, and you're facing issues with that, don't hesitate to reach out. We can sit down, discuss your circumstances, and I will do everything in my power to fight for your rights if you're dealing with a criminal case in Los Angeles.
