California, United States of America
The following excerpt is from People v. Marcelo, A144765 (Cal. App. 2017):
statements made by that witness, in circumstances where the witness's recalcitrance effectively prevents cross-examination concerning those prior statements." (People v. Morgain, supra, 177 Cal.App.4th at p. 463.)
People v. Murillo, supra, 231 Cal.App.4th 448, is instructive in this regard. In that case, "[a] prosecution witness [took] the witness stand but refuse[d] to answer any questions. The trial court allow[ed] the prosecutor to ask the witness more than 100 leading questions concerning the witness's out-of-court statements to prove defendant guilty of several criminal offenses. The questions create[d] the illusion of testimony." (Id. at pp. 449-450.) The appellate court concluded this procedure "deprived defendant of a fair trial because he could not exercise his constitutional right of cross-examination." (Id. at p. 450.) The court specifically contrasted cases, such as the present one, in which the examination of the recalcitrant witness is properly limited, noting that in those cases a jury is "entitled to draw negative inferences from his refusal to answer questions." (Id. at p. 458.)
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