Refusal to Testify In Court Arising from Fear
In People v. Rojas (1975) 15 Cal.3d 540, the court construed the term "mental infirmity" broadly to encompass a refusal to testify arising from fear.
In Rojas, a prosecution witness, who had been granted immunity, persistently refused to testify on the ground that "he feared for his life and that of his family." (Id. at p. 547.)
The trial court found that he was unavailable as a witness and allowed introduction of his testimony at a preliminary hearing and earlier trial.
Finding no error, our high court held that the term "infirmity" in subdivision (a)(3), "when considered in the light of the wide discretion given to determine the existence of the necessity in a particular case, permits the trial court to consider whether a mental state induced by fear of personal or family harm is a 'mental infirmity' that renders the person harboring the fear unavailable as a witness." ( Id. at p. 551.)
Three subsequent decisions have gone beyond Rojas by holding that a witness is unavailable where the trial court has taken "reasonable steps to induce the witness to testify, but found them unavailing." ( People v. Walker (1983) 145 Cal.App.3d 886, 894; People v. Francis (1988) 200 Cal.App.3d 579, 587-588; People v. Sul (1981) 122 Cal.App.3d 355, 367.)
In People v. Rojas (1975) 15 Cal.3d 540, 548-549, the court observed, "The use of depositions and former testimony does not infringe upon the constitutional right of confrontation as long as there has been due cross-examination.