You're a witness and are given immunity. But, fearing for your life, you still don't want to testify. It's a gang case, and a murder trial, and you've allegedly been directly threatened by gang associates.
Multiple choice. If you continue to refuse to testify, that refusal to testify constitutes:
(A) Nothing.
(B) Contempt.
(C) Accessory to murder.
(D) Both (B) and (C).
The Court of Appeal held that the correct answer was (D). The California Supreme Court says that's the wrong answer. Unanimously. It's (B).
Good to know. And seems exactly right to me. It's contempt, so you can be jailed, both coercively (until you testify) and retrospectively (as punishment). But not testifying isn't an "affirmative" act to help out the alleged criminals that makes you guilty of being an accessory. If only because, if it is, then everything is an affirmative act. For these reasons, the California Supreme Court "decline[s] to 'place() California on the extreme outer edge of jurisdictions — indeed,
in a group unto itself — concerning the reach of accessory after the fact punishment.'"
Two other points about today's opinion.
First, I've rarely seen the California Supreme Court quote so much from the dissenting opinion in the Court of Appeal. That's a pretty positive endorsement of Justice Baker. Much to the chagrin, I'd bet, of those who strongly opposed his appointment to the Court of Appeal.
Second, I know that existing doctrine makes it permissible -- and it's entirely irrelevant to the Court's holding -- but do the underlying facts of the police interrogation here make you feel at least a little uncomfortable? Here's what transpired:
"On August 31, 2006, when Partee was 21 years old, she
reported a rental car stolen. The rental company directed her to
file a claim with the Hawthorne Police Department. Partee did
so. When she arrived at the Hawthorne police station,
detectives from the Los Angeles Police Department met her and drove her to the office of homicide detective John Skaggs. . . .
Detective Skaggs conducted an interview with Partee,
which he surreptitiously recorded. In the course of the
interview, he told Partee, “[Y]ou’re obligated to be completely
truthful, even if it hurts. . . . If you’re caught lying in some way,
I would associate you directly with the murder. . . . If you lie to
me, this much, I will associate you to the commission of that
crime, okay.” He also said, “What is said in he[re] is between
you and I. . . . Let’s get that straight now.” At the close of the
interview, Detective Skaggs stated, “You said, ‘All this was off
the record.’ Okay. And I told you, ‘Yes.’ My question is, and it’s
not going to happen, but if the District Attorney or somebody
said, ‘I need you to come and tell your story to court,’ how would
you feel?” Partee replied that she would not testify . . . .
Despite Detective Skaggs’s representation to Partee that
“it’s not going to happen,” the district attorney did in fact
subpoena Partee to testify."
I know the police want to find out what went down. I do too. But recording a witness without telling them you're doing it, while expressly telling them that what's said is totally "off the record," seems at least to some degree morally wrong. Even if you're okay with lying to suspects, lying to witnesses (and telling them that something's off the record when it most definitely is not) seems different to me.
And, practically, once witnesses discover that the police are permitted to (1) lie to them, (2) threaten them, (3) secretly record them, and (4) tell them things are off the record when they're not, I suspect they'll be much less willing to voluntarily assist the authorities. Which is bad for everyone.
Again, not a part of today's holding. But the facts are nonetheless mentioned in the case, so I thought I'd pass them along.
