Is evidence that a witness is afraid to testify or fears retaliation for testifying admissible?

California, United States of America


The following excerpt is from People v. Harris, B190213 (Cal. App. 7/26/2007), B190213 (Cal. App. 2007):

"`Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]" (People v. Burgener (2003) 29 Cal.4th 833, 869.) "It is not necessary to show threats against the witness were made by the defendant personally, or the witness's fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.]' [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)

In accordance with these principles, defendant's jury was instructed under CALJIC No. 2.20 to assess witness credibility by various factors, including "[t]he demeanor and manner of the witness while testifying." (See People v. Lewis (2001) 26 Cal.4th 334, 361 [under Evid. Code, 780, subd. (a), "witness's `demeanor while testifying and the manner in which he testifies' may be relevant to credibility"].) Thus, here, as in People v. Olguin, supra, 31 Cal.App.4th at page 1369, "[t]he trial court acted well within its discretion in insuring the jury would have such evidence [of fear] and would properly evaluate it."

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