Sometimes. California allows a defendant to ask the court to take a material witness’s testimony before trial when a listed circumstance makes later attendance uncertain. The court must find the examination necessary. The testimony is not automatically usable at trial: the court must later find the witness unavailable under Evidence Code section 240, and ordinary objections still apply. (Penal Code § 1335; § 1336; Evidence Code § 240.)
Which circumstances may qualify?
For a charged public offense, a defendant who has been informed of the right to counsel may seek a conditional examination if a material witness is about to leave California, is so sick or infirm that the witness may be unable to attend, is at least 65, or is a dependent adult. A separate route applies when the witness’s life is in jeopardy. The court decides whether the facts establish necessity; a witness’s reluctance or ordinary scheduling difficulty is not itself enough. (Penal Code § 1335; § 1336.)
There are additional, carefully defined provisions for certain domestic-violence and human-trafficking cases, including specified intimidation or threats affecting a victim or witness. Those provisions do not make every witness who may change their mind eligible. The facts and charged offense matter. (Penal Code § 1335.)
How the request proceeds
The application uses a sworn affidavit describing the witness, expected material testimony, and facts supporting a statutory ground. The other side generally must receive three days’ notice under section 1338; the statute says days, not court days. The court then decides whether the examination is necessary and, if so, sets its time and place. (Penal Code § 1337; § 1338; § 1339.)
The examination preserves sworn testimony, ordinarily with the defendant and counsel able to attend and ask questions. Section 1340 addresses the defendant’s presence and provides a limited procedure for a witness too sick or infirm to attend in person. (Penal Code § 1340.)
Does the testimony play at trial automatically?
No. Before the preserved testimony is used, the court must find the witness unavailable under Evidence Code section 240. Being 65 or older, planning to travel, or qualifying for the earlier examination does not itself prove unavailability at trial. The opponent may raise objections as if the witness were testifying orally. (Penal Code § 1345; Evidence Code § 240.)
This process preserves testimony; it is different from asking another state to compel a witness to appear in California. If the witness can attend trial, live testimony remains a separate option. Gather the witness’s location, expected testimony, evidence of the qualifying risk, trial dates, and any communications about availability so counsel can evaluate the request promptly.
For more on the court process, see the California criminal trial overview. For help assessing a witness-preservation issue in a California criminal case, contact the Law Offices of David S. Chesley. Call (800) 755-5174.