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Name: People v. Cadogan
Case #: G040200
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/20/2009

Conditional examination of dying witness while criminal proceedings were suspended was proper. Criminal proceedings on multiple forcible sex offenses were suspended pending psychological evaluations of Cadogan, whose attorney believed that he might be incompetent to stand trial. The prosecution moved for a conditional examination of Cadogan’s wife, who was terminally ill and would not survive until the trial. Cadogan objected because the criminal proceedings had been suspended. The trial court overruled the objections and Mrs. Cadogan provided testimony probative of guilt. Mrs. Cadogan died in June and the trial began in July. Cadogan moved to dismiss the case based on the court having allowed the conditional examination. The court denied the motion and played a videotape of Mrs. Cadogan’s conditional examination for the jury. The appellate court found that the trial court’s actions were proper. Although a conditional examination is a “proceeding” subject to the suspension requirement set forth in section 1368, subdivision (c), the Legislature did not intend to foreclose the preservation of evidence in extraordinary circumstances such as those presented here. The trial court has the inherent discretion to allow a conditional examination to proceed before a competency hearing. Evidence garnered from a conditional examination can be excluded from the trial if the defendant is found incompetent. Here, however, Cadogan was found to be competent, and there was no need to exclude Mrs. Cadogan’s testimony. Cadogan also asserted that the prosecution was unfairly allowed to attack his credibility with prior misdemeanor convictions because he was asked about whether he had been convicted instead of whether he had actually committed the offenses. The appellate court found that the issue was not cognizable because there was no objection below.