Chapter 5. Examination Of Witnesses On Commission of California Penal Code >> Title 10. >> Part 2. >> Chapter 5.
When an issue of fact is joined upon an indictment or
information, the defendant may have any material witness, residing
out of the state, examined in his behalf, as prescribed in this
chapter, and not otherwise.
When a material witness for the defendant resides out of the
State, the defendant may apply for an order that the witness be
examined on a commission.
A commission is a process issued under the seal of the Court
and the signature of the Clerk, directed to some person designated as
Commissioner, authorizing him to examine the witness upon oath on
interrogatories annexed thereto, to take and certify the deposition
of the witness, and to return it according to the directions given
with the commission.
The application must be made upon affidavit, stating:
1. The nature of the offense charged;
2. The state of the proceedings in the action, and that an issue
of fact has been joined therein;
3. The name of the witness, and that his testimony is material to
the defense of the action;
4. That the witness resides out of the State.
The application may be made to the Court, or a Judge thereof,
and must be upon three days' notice to the District Attorney.
If the Court to whom the application is made is satisfied of
the truth of the facts stated, and that the examination of the
witness is necessary to the attainment of justice, an order must be
made that a commission be issued to take his testimony; and the Court
may insert in the order a direction that the trial be stayed for a
specified time, reasonably sufficient for the execution and return of
When the commission is ordered, the defendant must serve upon
the District Attorney, without delay, a copy of the interrogatories
to be annexed thereto, with two days' notice of the time at which
they will be presented to the Court or Judge. The District Attorney
may in like manner serve upon the defendant or his counsel
cross-interrogatories, to be annexed to the commission, with the like
notice. In the interrogatories either party may insert any questions
pertinent to the issue. When the interrogatories and
cross-interrogatories are presented to the Court or Judge, according
to the notice given, the Court or Judge must modify the questions so
as to conform them to the rules of evidence, and must indorse upon
them his allowance and annex them to the commission.
Unless the parties otherwise consent, by an indorsement upon
the commission, the Court or Judge must indorse thereon a direction
as to the manner in which it must be returned, and may, in his
discretion, direct that it be returned by mail or otherwise,
addressed to the Clerk of the Court in which the action is pending,
designating his name and the place where his office is kept.
The commissioner, unless otherwise specially directed, may
execute the commission in the following order:
(a) He or she shall publicly administer an oath to the witness
that his or her answers given to the interrogatories shall be the
truth, the whole truth, and nothing but the truth.
(b) He or she shall cause the examination of the witness to be
reduced to writing and subscribed by the witness.
(c) He or she shall write the answers of the witness as near as
possible in the language in which he or she gives them, and read to
the witness each answer as it is taken down, and correct or add to it
until it conforms to what he or she declares is the truth.
(d) If the witness declines to answer a question, that fact, with
the reason assigned by him or her for declining, shall be stated.
(e) If any papers or documents are produced before him or her and
proved by the witness, they, or copies of them, shall be annexed to
the deposition subscribed by the witness and certified by the
(f) The commissioner shall subscribe his or her name to each sheet
of the deposition, and annex the deposition, with the papers and
documents proved by the witness, or copies thereof, to the
commission, and shall close it up under seal, and address it as
directed by the indorsement thereon.
(g) If there is a direction on the commission to return it by
mail, the commissioner shall immediately deposit it in the nearest
post office. If any other direction is made by the written consent of
the parties, or by the court or judge, on the commission, as to its
return, the commissioner shall comply with the direction.
A copy of this section shall be annexed to the commission.
If the commission and return be delivered by the Commissioner
to an agent, he must deliver the same to the Clerk to whom it is
directed, or to the Judge of the Court in which the action is
pending, by whom it may be received and opened, upon the agent making
affidavit that he received it from the hands of the Commissioner,
and that it has not been opened or altered since he received it.
If the agent is dead, or from sickness or other casualty
unable personally to deliver the commission and return, as prescribed
in the last section, it may be received by the Clerk or Judge from
any other person, upon his making an affidavit that he received it
from the agent; that the agent is dead, or from sickness or other
casualty unable to deliver it; that it has not been opened or altered
since the person making the affidavit received it; and that he
believes it has not been opened or altered since it came from the
hands of the Commissioner.
The clerk or judge receiving and opening the commission and
return shall immediately file it, with the affidavit mentioned in
Sections 1358 and 1359, in the office of the clerk of the court in
which the indictment is pending. If the commission and return is
transmitted by mail, the clerk to whom it is addressed shall receive
it from the post office, and open and file it in his or her office,
where it must remain, unless otherwise directed by the court or
The commission and return must at all times be open to the
inspection of the parties, who must be furnished by the Clerk with
copies of the same or of any part thereof, on payment of his fees.
The depositions taken under the commission may be read in
evidence by either party on the trial if the court finds that the
witness is unavailable as a witness within the meaning of Section 240
of the Evidence Code. The same objections may be taken to a question
in the interrogatories or to an answer in the deposition as if the
witness had been examined orally in court.