Can Sickness, Illness or Disease Excuse One from Court?

Our office does receive a call at least once per month from someone who wants to know if he or she can avoid going to court because of illness or a disease.  Often times, we recognize the caller as likening court to school, where one can be excused from classes while sick.  As the caller explains his or her illness or disease, we often suspect the individual may not be sick at all, but is seeking advice on a false excuse to not go to court.

Sometimes, the person is not sick or ill at all, but has concerns about retaliation by a gang for testifying, committing perjury, or testifying against an ex-boyfriend and fears angering a family.  If that is the true concern, this article is not for you.

Evidence Code § 240(a)(3) does state that a witness is unavailable to appear in court if he or she is unavailable to testify because of an existing physical or mental illness or infirmity. 

When the prosecution claims unavailability of a witness on a claim of incapacitating physical or mental condition at the time of trial, the illness or infirmity must be severe.  It must exist to such a degree that it renders the witness’ attendance, or his or her testifying, relatively impossible, not merely inconvenient.  People v. Winslow (2004) 123 Cal. App. 4th 464, 471, 19 Cal. Rptr. 3d 872; People v. Gomez (1972) 26 Cal. App. 3d 225, 230, 103 Cal. Rptr. 80.

The defendant may respond that his or her Sixth Amendment right to face his accuser or a witness being offered against him is violated by the witness’ unavailability in court.

In the context of mental illness or infirmity of a witness, the term “relatively impossible” does not mean that it is impossible to elicit the testimony due to insanity of being in a coma or other total inability to communicate.  People v. Winslow, supra, 123 Cal. App. 4th 472-473.  Instead, it means that it is relatively impossible to elicit testimony without the risk of inflicting substantial trauma on the witness.  Id., at 473.

In People v. Turner (1990) 219 Cal. App. 3d 1207, 268 Cal. Rptr. 686 (disapproved on other grounds at 24 Cal. 4th 889, 890), a rape victim was found unavailable when she refused to testify at trial after having testified at two preliminary examinations.  Id., 219 Cal. App. 3d 1210-1212.  The appellate court considered both Evidence Code §§ 240(a)(3) and (c) in upholding the trial court’s finding of unavailability, based on the testimony of a licensed social worker who had treated the witness, had diagnosed her as suffering from rape-induced posttraumatic stress disorder requiring long-term treatment and had the opinion that testifying again would further harm the witness. Id., 219 Cal. App. 3d at 1212-1213, 1216.

In People v. Rojas (1975) 15 Cal. 3d 540, 550-552, 125 Cal. Rptr. 357, a non-domestic violence assault case, the judge found a witness unavailable under Evidence Code § 240(a)(3), finding that the witness’ fear for his own safety and the safety of his family rendered him unavailable to testify because of mental infirmity. Id., 15 Cal. 3d 550, 552.  Rojas involved a witness who had been present in the backseat of his own car when he saw defendant shoot a gun and saw a victim on the ground outside. Id., 15 Cal. 3d at 544.  The witness testified at the preliminary hearing and the first trial, but refused to testify at the second trial, even though the judge explained to him that he had been granted immunity and would be held in contempt if he did not testify.

In an in camera hearing, the witness stated that he had received threats by letter and telephone, that he had been struck physically on one occasion, that bottles had been thrown at his car, that his father’s car had been vandalized, that he was called names at school such as “snitch,” and that he feared for his life and that of his family.  Id., 15 Cal. 3d at 547.

In contrast, in People v. Williams (1979) 93 Cal. App. 3d 40, 155 Cal. Rptr. 414 (disapproved on other grounds by 54 Cal. 4th 480, 489), a rape victim testified at defendant’s first trial, but was reluctant to testify at a second trial.  At the hearing on her unavailability, the judge from the first trial testified to her severe emotional strain during the first trial, and the fact that she had collapsed on the first day of trial, possibly because she had colitis.  Id., 93 Cal. App. 3d at 49.

Two friends also testified that the victim as “being torn apart,” and had become hysterical on learning that she had to testify again.  Id., 93 Cal. App. 3d at 50.  The judge determined that she was unavailable as a witness under Evidence Code § 240(a)(3). Id., 93 Cal. App. 3d at 49.

The Court of Appeal, however, reversed the trial court’s ruling, noting that the prosecution had offered no medical evidence as to the victim’s physical or mental condition at the time of the hearing, or as probable effects on her health if she were required to testify.  Id. 93 Cal. App. 3d at 50.  According, the appellate court found that the witness was not unavailable and that the trial court judge had abused his discretion.

For more information about unavailable witness issues, please click on the following articles: