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In Orange County, CA What Happens When a Witness is Deported Before Trial?

If the state deports a key witness in your trial, your case could be dismissed. Two cases, People v Torres and People v Roldan, outline when this might happen.

In December 2006, the state charged Juan Roldan with the shooting of Saba Barrera. Roldan allegedly shot Barrera three times due to Barrera’s affiliation with a rival gang. In addition to this charge, the state also charged Roldan with the murder of two more rival gang members. In the time between Roldan’s arrest and the trial, the police also arrested Barrera for his gang affiliation, and he was later taken into custody by Immigration and Customs Enforcement (ICE). While Barrera was in a federal immigration hold, the prosecution collected his testimony at a preliminary hearing. After the preliminary hearing, Barrera was deported and was not able to testify at Roldan’s trial. The prosecution still used Roldan’s preliminary hearing testimony at the trial. Barrera’s testimony was the strongest piece of evidence at the trial. Without it, the jury may not have found Roldan guilty and he would not have been sentenced to life in prison without parole.

Roldan appealed his guilty verdict by challenging the fairness of the trial. As Barrera, the key witness for the prosecution, was not at the trial, Roldan’s defense attorney could not cross-exam the statements made by Barrera. The prosecution didn’t attempt to delay Barrera’s deportation thinking they could just use the prior testimony from the preliminary hearing. The failure to do anything to stop deportation of the key witness against him violated Roldan’s Constitutional Right to Confrontation, the ability to challenge any witness’ testimony. As a result, the Court of Appeals of California overturned Roldan’s conviction and granted him a new trial.

After the Court of Appeals overturned Roldan’s conviction, prosecutors could no longer use preliminary hearing testimony from a currently deported witness as easily. Instead, all California prosecutors must meet the following criteria during similar circumstances: (1) the defense must be informed about the deportation;(2) the preliminary hearing must be videotaped; (3) the state must use judicial power to delay the deportation; (4) other strategies must be used to delay the deportation.  No longer can the prosecution rely on preliminary hearing testimony at trial without potentially losing the witness testimony completely.

In the second case, in March 2016, law enforcement charged Albert Torres with attempted murder and assault with a deadly weapon. Although the events of the case were confusing and inconsistent, we can be certain about a few facts. On the day of the assault, Torres was with two men, Hernandez (the witness) and Quinones (the victim). Additionally, someone, either Hernandez or Torres, stabbed Quinones. Both Hernandez and Quinones informed law enforcement that Torres was the stabber. Similar to the last case, a key witness, Hernandez, provided preliminary hearing testimony against Torres shortly before his deportation. At the trial, the prosecution relied solely on the prior testimony of the deported witness, Hernandez.   Again the fact that the prosecution didn’t do anything to stop the deportation of the key witness, Hernandez, led to the appellate court reversing the conviction.

These two recent cases establish new law regarding the issue of witness deportation and prior testimony being used in court at trial.  It is clear that defense attorneys have to foresee the changes in the law and make objections to the introduction of damaging evidence even when they think it’s not going to work.  A defense attorney with experience in trial will undoubtedly  increase your chances of the most fair and just outcome.

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