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Name: People v. Wilson
Case #: B234519
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 05/15/2013
Summary

When a witness refuses to testify and the prosecution intends to introduce prior testimony from the preliminary hearing, the parties, including the prosecutor, must be informed of the witness’ recantation of the earlier testimony. The alleged robbery victim testified as to the facts of the offense at the preliminary hearing. Thereafter, he and his mother signed a document to the effect that some of his testimony was factually incorrect. At trial, the victim appeared with an attorney and declined to testify, asserting a Fifth Amendment privilege. Outside the presence of the parties, the judge questioned the victim in chambers with his attorney and the attorney stated that the victim recanted. The parties were not advised of the representation and, at trial, the prosecutor introduced the preliminary hearing testimony and appellant was convicted. Reversed. Upon learning that the victim had recanted, the court was obliged to inform the parties. The prosecutor could then have opted to dismiss or offered the victim immunity and cross examined him as to his reasons for recanting. By allowing the prosecutor to use the preliminary hearing testimony without the information as to the recantation, the jury was deprived of its opportunity to consider the veracity of the testimony.