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Name: People v. Lawson
Case #: B173698
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 08/11/2005

The trial court erred in forcing a defendant to choose between presenting a defense and maintaining his right against self-incrimination, and further erred in instructing the jury under CALJIC 2.28. At trial the prosecution had objected to the defense’s calling of a witness who had not been on the witness list, and whose statement to the defense investigator had not been turned over to the prosecution. The court refused to let the witness testify, and as a result, defendant had to take the stand in order to present the defense version of the facts. Defendant was impeached with evidence of prior convictions that would not otherwise have been presented to the jury. After defendant’s testimony, the prosecutor realized that a previous prosecutor working on the case had known of the disputed witness and in fact had given her name to the defense; the court then reversed its earlier ruling and allowed the witness to testify. Nonetheless, the court went on to instruct the jury under CALJIC 2.28 as a sanction against the defense for failing to turn over the investigator’s notes. The appellate court found error both in the initial ruling barring the witness’s testimony, and in the giving of the instruction as a sanction. In regard to both errors, the court noted that appellant had no personal responsibility for any failure to have turned over the witness’s name. Because the case was a close one and turned on witness credibility, the errors were not harmless.