Yes, but a prosecutor’s concern for a witness does not automatically close a California preliminary examination. Under Penal Code section 868.7(a)(2), the court may exclude the public during that witness’s testimony only when public testimony would pose a substantial risk to the witness’s life and other security measures are inadequate to minimize it. The judge must assess the evidence and the proposed scope, not close the whole hearing on a general claim of fear.
Identify which closure request the court is deciding
Penal Code section 868 makes preliminary examinations open and public as the starting rule. It also provides a separate route for a defendant seeking closure to protect a fair and impartial trial. A prosecutor’s witness-safety request under section 868.7(a)(2) has its own life-risk and inadequate-alternative requirements. Those two requests should not be treated as interchangeable.
Section 868.7(a)(1) also has a different, limited route involving specified minor or dependent-person victims of sexual offenses and serious psychological harm. That provision does not turn an anxious adult witness into a life-risk witness, and its conditions should be checked separately if invoked. The defense can ask the court to identify the subdivision, the testimony to be closed, and the facts supporting each condition. Section 868.7(a)
Test the proposed scope and alternatives
A useful record identifies the witness, the asserted source and seriousness of the risk, why a public appearance would create it, and whether another measure could reduce it. The court might consider security arrangements, controlled access, shielding identifying features where lawful, or a narrower exclusion. The statute requires inadequacy of alternative security measures for the life-risk branch; a threat allegation alone does not decide that question.
The public also has a qualified constitutional access right to California preliminary hearings. In Press-Enterprise Co. v. Superior Court, the Supreme Court required specific findings on the record and closure narrow enough to protect the demonstrated interest after considering alternatives. Its particular discussion of a “substantial probability” of harm from publicity addressed a defendant’s fair-trial claim; it does not replace section 868.7(a)(2)’s statutory test for witness safety. In Eversole v. Superior Court, the California court required attention to alternatives under section 868.7. The statute’s text has since changed in part, so the present statutory conditions control.
Closure is limited in time and does not seal the testimony forever
If the court orders closure under section 868.7, subdivision (b) requires the witness’s testimony transcript to be made available to the public as soon as practicable. Ask counsel to preserve the motion, any supporting declaration, objection, on-the-record findings, precise closed segment, and transcript-access ruling. Those details allow review of whether the court applied the correct branch and limited the order to what was necessary. Section 868.7(b)
Timing also matters. A potential defect at the preliminary stage may call for a timely challenge before trial; it does not automatically undo a later conviction after an otherwise fair trial. People v. Pompa-Ortiz explains that difference in remedy. Counsel can evaluate the actual order and procedural posture without assuming the witness cannot testify. For an overview of the hearing itself, see the Law Offices of David S. Chesley’s preliminary-hearings page. Call (800) 755-5174 to discuss the proposed closure and hearing record.